The Park at Cross Creek v. City of Malibu
B271620
Cal. Ct. App.Jun 21, 2017Background
- In November 2014 Malibu voters adopted Measure R to limit large commercial/mixed-use developments (>20,000 sq ft) and restrict “formula retail” (chain) establishments.
- Measure R requires the city to prepare a specific plan and report for any covered development, hold a public hearing, and submit the specific plan to voters for approval; no discretionary approvals may be taken until voter approval.
- Measure R also subjects formula retail establishments to size/percentage limits and requires an establishment-specific conditional use permit (CUP) whose issuance and transferability depend on the identity of the chain.
- The Park at Cross Creek, LLC and Malibu Bay Company, developers of planned projects (including a Whole Foods store), petitioned for writs to declare Measure R facially invalid; the trial court granted relief and enjoined enforcement.
- The City of Malibu and Measure R proponents appealed; the Court of Appeal affirmed, holding Measure R exceeded the initiative power and that the CUP provisions were unlawful.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Measure R’s requirement that the city prepare a project‑specific plan and submit it to voters for approval exceeds the initiative power by impermissibly imposing administrative/adjudicative procedures | Measure R unlawfully converts routine discretionary, project‑by‑project administrative land‑use decisions into voter decisions, exceeding initiative power | Voter requirement is legislative in nature because adoption of specific plans is a legislative act; voters may require planning before permitting | Held: Invalid. Requiring a specific plan and mandatory voter approval for each covered project is an administrative usurpation of city authority and exceeds initiative power |
| Whether Measure R’s sequencing (planning before permitting) and voter layers are permissible | Such sequencing improperly annuls or delays executive/administrative conduct and adds unlawful layers of voter approval | Sequencing is a legitimate policy choice and mirrors legislative prerogative over planning | Held: Invalid — the sequencing is an administrative control that unlawfully removes the city’s discretionary authority and adds impermissible voter approval layers |
| Whether Measure R’s CUP provisions are lawful when they depend on the particular chain (establishment‑specific) and restrict transferability | Establishment‑specific CUPs improperly condition permits on the identity/character of the business or permittee rather than the land/use; CUPs must run with the land | The identity of a particular chain is a relevant land use consideration and voter goal to preserve local character; CUPs can limit chains to preserve diversity | Held: Invalid. CUPs that are establishment‑specific and restrict transferability are contrary to the rule that CUPs relate to land use and run with the land |
| Whether invalid provisions are severable so the remainder of Measure R survives | Severance would preserve much of the initiative’s purposes (e.g., chain limits) | Measure R contains a severability clause; the invalid parts can be excised | Held: Not sufficiently severable. The voter‑approval/specific‑plan requirement is volitionally inseparable from the measure’s core purpose, and CUP defects are not fully remediable by simple edits |
Key Cases Cited
- DeVita v. County of Napa, 9 Cal.4th 763 (1995) (initiative power coextensive with legislative power but limited to legislative acts)
- Yost v. Thomas, 36 Cal.3d 561 (1984) (approval/adoption of specific plans is legislative and subject to referendum)
- Chandis Sec. Co. v. City of Dana Point, 52 Cal.App.4th 475 (1996) (specific plans are legislative and may be subject to the electorate)
- Wiltshire v. Superior Court, 172 Cal.App.3d 296 (1985) (invalid to withdraw administrative permitting authority by initiative requiring voter approval for administrative permits)
- Citizens for Jobs & the Economy v. County of Orange, 94 Cal.App.4th 1311 (2002) (invalid to add voter approval layers that alter implementing decisions and administrative process)
- Anza Parking Corp. v. City of Burlingame, 195 Cal.App.3d 855 (1987) (CUPs must run with the land; nontransferability conditioned on permittee is improper)
- Sounhein v. City of San Dimas, 47 Cal.App.4th 1181 (1996) (conditions attaching to the applicant rather than the property are improper for land‑use permits)
- Citizens for Planning Responsibly v. County of San Luis Obispo, 176 Cal.App.4th 357 (2009) (distinguishing measures that set substantive policy from measures that impose administrative project‑by‑project controls)