The Park at Cross Creek v. City of Malibu ( 2017 )

Filed 6/21/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PARK AT CROSS CREEK, B271620, B275311
LLC, et al.,
(Los Angeles County
Plaintiffs and Respondents, Super. Ct. No. BS155299)
v.
CITY OF MALIBU,
Defendant and Appellant;
DRU ANN DIXON-JACOBSON
et al.,
Interveners and Appellants.
APPEAL from a judgment of the Superior Court of
Los Angeles County, James Chalfant, Judge. Affirmed.
Jenkins & Hogin, Christi Hogin and Gregg W. Kettles,
City Attorneys, for Defendant and Appellant.
Hueston Hennigan, Marshall A. Camp, Padraic W. Foran
and Leanne O. Vanecek for Plaintiffs and Respondents.
Remcho, Johansen & Purcell, Robin B. Johansen, James C.
Harrison, Thomas A. Willis and Margaret R. Prinzing for
Interveners and Appellants.
_________________________
In November 2014, the voters of Malibu enacted Measure
R, an initiative designed to limit large developments and chain
establishments. The Park at Cross Creek, LLC (The Park) and
Malibu Bay Company (Malibu Bay), both of which were
developing projects in Malibu, petitioned the trial court to have
Measure R declared invalid. The court granted that petition.
Appellants the City of Malibu and interveners Dru Ann Dixon-
Jacobsen, Carol Moss and Michele Reiner (the official proponents
of Measure R) appeal.1 We conclude that Measure R exceeds the
initiative power and is illegal. We therefore affirm the judgment.
BACKGROUND2
I. Malibu voters pass Measure R
On November 4, 2014, Malibu voters approved Measure R,
an initiative entitled, “Your Malibu, Your Decision Act.” Measure
R seeks to preserve Malibu’s “unique small-town, rural character”
and to “protect natural resources by adopting provisions that will
ensure our community remains a unique oasis in the midst of
1 Unless otherwise specified, we refer to appellants
collectively as “the City.”
2 The interveners ask us to take judicial notice of excerpts
from Malibu’s general plan, the official statements of votes cast
for Measure R and for Measure W (a separate measure to
approve a specific plan for Whole Foods), and minutes from a
July 20, 2015 city council special meeting. We take judicial
notice of Malibu’s general plan (Evid. Code, § 452, subds. (b) &
(c)) but deny the request as to the remaining items.
2
urban and suburban sprawl and generic development while at
the same time ensure our City evolves in a sustainable manner
that meets the needs of our residents and visitors.” (Your
Malibu, Your Decision Initiative, Preamble, §§ 2(1), (3)(1)
(Preamble).)
To those ends, Measure R has two primary components
designed to limit large developments and “formula retail
establishments,” i.e., chain stores. Measure R first requires
Malibu’s City Council to prepare a specific plan for every
proposed commercial or mixed-use development in excess of
20,000 square feet for the commercial area. (Malibu Mun. Code,
ch. 17.02, § 17.02.045, subds. (B)(2) & (C)(1).)3 The specific plan
must comply with Malibu’s general plan and local coastal
program and must address: floor area; requirements “to ensure
the retention of retail businesses serving local residents and
visitors”; preserving important view corridors and vistas; traffic;
public facilities, services, and economic analysis; open space;
parking; enlargement of the commercial area; and geological,
hydroelectrical and wastewater impacts. (Id., subd. (C)(3).) In
addition to preparing a specific plan, the city council must
prepare a report with full notice and public hearing. (Id., subds.
(C)(3) & (D).)
Following the city council’s approval of a specific plan, the
plan must be placed on the ballot for voter approval.
(§ 17.02.045, subd. (C)(1).) Until the voters approve a specific
plan, the city “shall take no final action on any discretionary
3 Measure R amends Malibu’s Municipal Code. All further
undesignated statutory section references are to Chapter 17.02 or
Chapter 17.66 of that code.
3
approval relating to” the proposed development. (Id., subd. (E).)
“ ‘Discretionary approval’ ” means any discretionary land use
entitlement or permit “of any type whatsoever” issued by Malibu.
(Id., subd. (B)(5).) Following voter approval of a specific plan,
under “no circumstances shall any subsequent permit or approval
issued by any city department or official authorize, allow, or
otherwise approve higher square footage, density, or intensities
of uses, or less landscaping, open space, or mitigation
requirements, including traffic mitigation and safety
requirements, than were finally approved by the voters.” (Id.,
subd. (F).)
To further prevent Malibu from becoming “Anything Mall,
USA,” Measure R’s second component restricts formula retail
establishments, defined as an establishment having 10 or more
retail establishments in the world and maintaining two or more
of the following features: standardized array of merchandise or
menu; standardized color scheme; standardized decor, façade,
layout or signage; a servicemark or a trademark; “and” uniform
apparel. (§ 17.66.130, subd. (E).) Chains may not exceed 2,500
square feet and may not occupy more than 30 percent of a
shopping center’s square footage or leasable tenant spaces per
floor. (Id., subd. (B)(4), (5).) These limits apply to new chain
establishments and to existing ones wanting to relocate, expand
by 200 or more square feet, or increase service area by 50 or more
square feet. (Id., subd. (A).)
Formula retail establishments also must obtain a
conditional use permit (CUP).4 To approve a CUP, the planning
4 Existing formula retail establishments are exempted from
the CUP requirement when they change ownership. Certain
formula retail establishments are also exempt; for example,
4
commission, in lieu of the findings required in section 17.66.080,5
shall find that the proposed formula retail establishment
complies with the size and occupancy limitations, “will not impair
the city’s unique, small-town community character by promoting
a predominant sense of familiarity or sameness, with
consideration for all existing formula retail establishments,” and
will promote a diverse commercial base. (§ 17.66.130, subd.
(B)(2), (3).) Approved CUPs “shall run solely with the operation
of the formula retail establishment for which it was approved and
continue to be valid upon change of ownership of the formula
retail establishment, the land, or any lawfully existing building
or structure on the land.” (Id., subd. (D).)
II. Proposed developments in Malibu
The Park owns property at 23401 Civic Center Way in
Malibu. Since 2009, The Park has invested $11.4 million to
develop a Whole Foods project, which will include a 38,424
square foot shopping center comprised of a 24,549 square foot
store, four smaller retail spaces, outdoor dining, a parking area,
green walls, new trees, a park and playground for children, a
community education garden, and a public gathering space in
case of wildfire. The proposed Whole Foods store will occupy
more than 30 percent of the center’s square footage. In 2011, The
Park’s application to develop the project was approved. An
grocery stores, pharmacies, gas stations, banks, real estate
offices, movie theatres, post offices, medical offices, and low-cost
overnight accommodations. (§ 17.66.130, subd. (C).) Exempt
businesses remain subject to the 30 percent restrictions.
5 Section 17.66.080 concerns the proposed use of a property.
5
environmental impact report was prepared, received public
comment and awaits public hearings.
Malibu Bay owns property at 23575 Civic Center Way.
Since 2012, it has invested $6.6 million to develop Malibu
Sycamore Village, a mixed-use commercial project. One
development plan includes office, retail, and restaurant
establishments; community gathering spaces; and a children’s
play area. A second development plan includes a 5,000 square
foot urgent care center.
III. The Park’s and Malibu Bay’s petition for a writ of
mandate
In May 2015, The Park and Malibu Bay filed a verified
petition for a peremptory writ of mandate to have Measure R
declared facially invalid on the grounds, among others, it subjects
administrative acts to public vote, creates an illegal CUP, and
violates their substantive due process rights.6 The Park and
Malibu Bay and the City of Malibu stipulated to have the petition
resolved on cross-motions for judgment on the pleadings.
The trial court held that Measure R’s specific plan and
voter approval requirements exceeded the scope of the initiative
power and violated substantive due process. The court also held
that Measure R created an illegal CUP that was “establishment-
specific” and did not run with the land. The court thus declared
Measure R facially invalid and enjoined Malibu from enforcing it.
Thereafter, the court allowed the official proponents of Measure
R to intervene but denied their request for a stay pending appeal.
6 Petitioners previously filed an action in federal court, but
the federal court stayed their federal claims and dismissed their
state law causes of action so that the state causes of action could
be resolved in state court.
6
We, however, granted the interveners’ petition for writ of
supersedeas, thereby staying the lower court’s judgment.
STANDARD OF REVIEW
Our review is de novo. (So v. Shin (2013) 212 Cal.App.4th
652, 662 [review from motion for judgment on the pleadings];
Citizens for Planning Responsibly v. County of San Luis Obispo
(2009) 176 Cal.App.4th 357, 366 [construing initiative’s language
is subject to de novo review].) Notwithstanding the de novo
standard of review, we are also bound by “ ‘the long-established
rule of according extraordinarily broad deference to the
electorate’s power to enact laws by initiative. The state
constitutional right of initiative or referendum is “one of the most
precious rights of our democratic process.” [Citation.] These
powers are reserved to the people, not granted to them. Thus, it
is our duty to “ ‘ “jealously guard” ’ ” these powers and construe
the relevant constitutional provisions liberally in favor of the
people’s right to exercise the powers of initiative and referendum.
[Citation.] An initiative measure “ ‘must be upheld unless [its]
unconstitutionality clearly, positively, and unmistakably
appears.’ ” [Citation.]’ ” (Citizens for Planning Responsibly, at
p. 366.) And where, as here, a facial challenge is mounted to the
constitutional validity of an initiative we consider only the text of
the measure itself, not its application to the particular
circumstances of an individual. (Tobe v. City of Santa Ana (1995)
9 Cal.4th 1069, 1084.)
DISCUSSION
I. Measure R’s specific plan requirement
California’s Constitution guarantees the local electorate’s
right to initiative and referendum, and that right is generally
coextensive with the local governing body’s legislative power.
7
(DeVita v. County of Napa (1995) 9 Cal.4th 763, 775 (DeVita);
Cal. Const., art. II, § 11.) The electorate has the power to initiate
legislative acts but not administrative or adjudicatory ones.
(Yost v. Thomas (1984) 36 Cal.3d 561, 569; Citizens for Jobs & the
Economy v. County of Orange (2002) 94 Cal.App.4th 1311, 1332
(Citizens for Jobs & the Economy); City of San Diego v. Dunkl
(2001) 86 Cal.App.4th 384, 399.) Initiatives that lodge
adjudicatory powers in the electorate are invalid. (Wiltshire v.
Superior Court (1985) 172 Cal.App.3d 296, 304 (Wiltshire).) The
rationale for this rule “is that to allow the referendum or
initiative to be invoked to annul or delay the executive or
administrative conduct would destroy the efficient administration
of the business affairs of a city or municipality.” (Lincoln
Property Co. No. 41, Inc. v. Law (1975) 45 Cal.App.3d 230, 234.)
To determine whether an initiative enacts legislation, “it is
the substance, not the form that controls.” (Marblehead v. City of
San Clemente (1991) 226 Cal.App.3d 1504, 1509.) The test to
distinguish a legislative act from an executive or administrative
one is well-established: “ ‘ “ ‘The power to be exercised is
legislative in its nature if it prescribes a new policy or plan;
whereas, it is administrative in its nature if it merely pursues a
plan already adopted by the legislative body itself, or some power
superior to it.’ ” ’ [Citation]; . . . “Acts constituting a declaration
of public purpose, and making provisions for ways and means of
its accomplishment, may be generally classified as calling for the
exercise of legislative power. Acts which are to be deemed as acts
of administration, and classed among those governmental powers
properly assigned to the executive department, are those which
are necessary to be done to carry out legislative policies and
purposes already declared by the legislative body, or such as are
8
devolved upon it by the organic law of its existence.”
[Citations.]’ ” (City of San Diego v. Dunkl, supra, 86 Cal.App.4th
at pp. 399-400, italics omitted.)
In the land use context, legislative acts are distinguished
from administrative or adjudicative ones on a categorical basis.
(Citizens for Planning Responsibly v. County of San Luis Obispo,
supra, 176 Cal.App.4th at p. 367.) Zoning ordinances, for
example, are legislative acts: variances, CUPs, and subdivision
map approvals are adjudicative acts. (Ibid.; W. W. Dean &
Associates v. City of South San Francisco (1987) 190 Cal.App.3d
1368, 1375; Arnel Development Co. v. City of Costa Mesa (1980)
28 Cal.3d 511.) A city’s or county’s adoption of a general plan for
its physical development is a legislative act. (Yost v. Thomas,
supra, 36 Cal.3d at p. 570; DeVita, supra, 9 Cal.4th at p. 773;
Gov. Code, § 65300.)7 Adoption or amendment of a specific plan
for the systematic implementation of the general plan is also a
legislative act.8 (Yost, at p. 570; Dana Point, supra,
52 Cal.App.4th at p. 481; see Gov. Code, §§ 65450, 65453.)
7 A general plan is a comprehensive, long term plan for a
city’s physical development. (Gov. Code, § 65300.) A general
plan shall include seven elements: land use, circulation and
infrastructure, housing, conservation, open space and recreation,
noise, and safety and health. (Gov. Code, §§ 65300, 65302.)
8 “ ‘Among other things, a specific plan must contain
standards and criteria by which development will proceed, and a
program of implementation including regulations, programs,
public works projects, and financing measures.’ ” (Chandis
Securities Co. v. City of Dana Point (1996) 52 Cal.App.4th 475,
481 (Dana Point).) “A specific plan may be as general as setting
forth broad policy concepts, or as detailed as providing direction
to every facet of development from the type, location and
9
Because Measure R concerns specific plans and voter
approval of them, the City argues that the measure is a
legislative act and therefore does not exceed the initiative power.
The City relies on cases holding that adoption of a specific plan is
a legislative act. In Dana Point, for example, a city council
approved a specific plan for developing the Headlands, 120 acres
of land along the coast. (Dana Point, supra, 52 Cal.App.4th at
pp. 479-480.) By referendum, the voters rejected the specific
plan, as well as an amendment to the general plan. Because
adoption or amendment of a general or specific plan is a
legislative act, Dana Point held that the specific plan was subject
to the electorate’s referendum power. (Id. at p. 481; see also
Yost v. Thomas, supra, 36 Cal.3d 561 [city council’s approval of
specific plan for hotel and conference center was legislative act
subject to voter referendum].)
The City extrapolates from these authorities the notion its
voters may require the city council to prepare a specific plan for
every development project within Measure R’s scope and to put
that plan on the ballot for voter approval. In essence, the City
cites Yost and Dana Point to ask why can’t the electorate require
every project to be reduced to a specific plan that is subject to
voter approval? This, however, goes beyond the holdings of Yost
and Dana Point. As the trial court below aptly said: “It is one
thing for voters to challenge a specific plan by petition and
intensity of uses to the design and capacity of infrastructure;
from the resources used to finance public improvements to the
design guidelines of a subdivision.” (Governor’s Off. of Planning
& Research, The Planner’s Guide to Specific Plans (Jan. 2001)
p. 4.) The plan may encompass a large area or just a single acre.
(Ibid.)
10
referendum (Yost, Dana Point) or for voters to approve a general
plan amendment by initiative which is then challenged by
mandamus,” “but it is another for voters to pass an initiative to
compel a city to submit each commercial project for voter
approval by means of a specific plan. The former are permissible,
but the latter restricts [Malibu’s] administrative discretion and
places it firmly within the category of voter enactments of
administrative matters, which are not permitted.”
We agree. There is a difference between, on the one hand,
voter approval of a specific plan and, on the other, requiring a
city council to prepare a specific plan and report, to hold a public
hearing about the specific plan and report, and then requiring
the plan to be submitted to voters for approval. The former is a
legislative act; the latter is an adjudicative one. Measure R,
however, conflates the two under the guise of setting “policy,”
that “policy” being all development projects greater than 20,000
square feet must have a specific plan approved by voters.
But, in substance, this is not legislative policy. Measure R
is not comparable to, for example, the general plan amendment in
Citizens for Planning Responsibly v. County of San Luis Obispo,
supra, 176 Cal.App.4th 357, or the voter approval requirement in
DeVita, supra, 9 Cal.4th 763. In Citizens for Planning
Responsibly, San Luis Obispo voters approved Measure J, which,
via amendment to the county’s general plan and a zoning
ordinance, allowed a mixed-use development of a 131-acre
property. The measure amended a zoning ordinance to set
standards for, among other things, maximum densities, building
heights, and floor area ratios; parking requirements; minimum
and maximum building size and configurations; setback
requirements; and permitted uses for the property. (Citizens for
11
Planning Responsibly, at p. 365; see generally Yost v. Thomas,
supra, 36 Cal.3d 561; Pala Band of Mission Indians v. Board of
Supervisors (1997) 54 Cal.App.4th 565.) In contrast to Citizens
for Planning Responsibly, Measure R doesn’t prescribe similar
policy for developments in excess of 20,000 square feet. It does
not, for example, set standards about building height, size or
configuration. Measure R instead requires specific plans to be
prepared containing such details and to be submitted to the
electorate. The problem is not that specific plans include these
details; indeed, specific plans must include some level of detail.9
The problem is Measure R requires details to be in specific plans
that are voter-approved but sets no substantive policy or
standards for those plans.
9 Government Code section 65451 provides:
“(a) A specific plan shall include a text and a diagram or
diagrams which specify all of the following in detail: [¶] (1) The
distribution, location, and extent of the uses of land, including
open space, within the area covered by the plan. [¶] (2) The
proposed distribution, location, and extent and intensity of major
components of public and private transportation, sewage, water,
drainage, solid waste disposal, energy, and other essential
facilities proposed to be located within the area covered by the
plan and needed to support the land uses described in the plan.
[¶] (3) Standards and criteria by which development will
proceed, and standards for the conservation, development, and
utilization of natural resources, where applicable. [¶] (4) A
program of implementation measures including regulations,
programs, public works projects, and financing measures
necessary to carry out paragraphs (1), (2), and (3).
“(b) The specific plan shall include a statement of the
relationship of the specific plan to the general plan.”
12
Nor is Measure R’s voter approval requirement comparable
to the voter approval provision in DeVita, supra, 9 Cal.4th 763.
Napa passed its Measure J, which provided that the land-use
designations it enacted could be changed only by a majority vote
of the county electorate. (Id. at p. 796.) Elections Code section
9125, however, already provided that initiative measures could
not be repealed or amended “except by a vote of the people, unless
provision is otherwise made in the original [initiative] ordinance.”
Thus, Measure J merely “formalize[d] the voter approval
requirement implied” by the Elections Code. (Id. at p. 796.)
Measure R, however, does not merely formalize any existing
power of the electorate. It creates a new power—the requirement
of a specific plan—and subjects it to voter approval. In this
respect, Measure R limits Malibu’s governing body from carrying
out its duties pursuant to its police power. And, as DeVita
suggests, such a limitation may be an unconstitutional attempt to
amend the charter or create a charter-like provision in a city or
county that does not possess one. (Id. at p. 798; see Cal. Const.,
art. XI, § 7 [a “county or city may make and enforce within its
limits all local, police, sanitary, and other ordinances and
regulations not in conflict with general laws”].)
What Measure R thus does is closer to the prohibited
administrative actions in Wiltshire, supra, 172 Cal.App.3d 296and Citizens for Jobs & the Economy, supra, 94 Cal.App.4th 1311.
In Wiltshire, San Diego County had a solid waste management
plan for four projects, including one in North County. (Wiltshire,
at p. 300.) The city council adopted a zoning ordinance requiring
all solid waste management facilities to obtain a special-use
permit. (Id. at p. 303.) The city council issued a special-use
permit authorizing construction of the North County project. In
13
an effort to halt the project, Wiltshire circulated for signature an
initiative requiring voter approval of the location, construction or
establishment of waste-to-energy plants. (Id. at pp. 299, 301,
302.) Wiltshire held that the initiative impermissibly withdrew
“from the San Marcos City Council the power to issue a special
use permit in compliance with its zoning ordinance and requires
a two-thirds electorate vote to approve the issuance of a special
use permit in each instance.” (Id. at p. 303.)
Measure R similarly withdraws from Malibu’s City Council
the ability to issue discretionary land use entitlements or permits
concerning a development project—unless and until voters
approve a specific plan for that project. (§ 17.02.045, subds.
(B)(5) & (E).) In this respect, Measure R is really about project-
by-project review—which would otherwise be subject to
administrative, not voter, approval— in the guise of a specific
plan. On its face, Measure R makes this clear. Its stated
purpose and intent is to require “preparation and voter approval
of specific plans for large commercial or mixed-use projects . . . .”
(Preamble, supra, § 3, italics added.) “ ‘Development project
subject to this measure’ shall mean any project for which a
discretionary approval is sought in the commercial area,
regardless of the number of parcels or parcel size, . . .” in excess of
20,000 square feet. (§ 17.02.045, subd. (B)(2), italics added.) The
measure’s voter approval provisions require a specific plan for
every “ ‘development project subject to this measure’ ” and, until
voters approve a specific plan, Malibu is forbidden from taking
any “discretionary approval relating to any development project
subject to this measure.” (Id., subds. (B)(2), (E), italics added.)
Measure R requires the voter ballot measure to clearly identify
and accurately describe the “development project” to avoid
14
misleading the voters about “project definition, scope, and
location.” (Id., subd. (D), italics added.) The city must prepare a
report, subject to a public hearing for “[e]ach specific plan” which
must address, for example, floor area, projected traffic, public
services, open spaces, and “adequacy of parking within the
development project.” (Id., subd. (C)(3) & (C)(3)(g), italics added.)
These provisions underscore Measure R’s attempt to usurp
administrative authority.
Measure R not only withdraws administrative authority
but it also adds “layers” to the administrative process. Citizens
for Jobs & the Economy concerned a similar attempt to limit a
local governing body’s administrative powers. In that case, the
voters passed Measure A, which authorized the County of Orange
to proceed with planning the conversion of a former military air
station to a civilian airport. (Citizens for Jobs & the Economy,
supra, 94 Cal.App.4th at p. 1316.) Voters thereafter passed
Measure F, which placed spending and procedural restrictions on
the board of supervisors regarding the conversion process.
Measure F thus impermissibly changed “the procedure and
substance of the implementing decisions that were created” by
the prior Measure A, thereby adding “layers of voter approval
and hearing requirements to the implementing decisions
anticipated” by that prior measure. (Id. at p. 1333.)
The City distinguishes Citizens for Jobs & the Economy by
characterizing Measure R as merely ensuring the proper
sequencing of events: planning before permitting. Rather than
helping the City’s case, this characterization emphasizes the
administrative nature of Measure R. How the development
process is “sequenced” is an administrative matter. Moreover,
the intended effect of this “sequencing” is to withdraw from
15
Malibu’s governing body its ability to administratively act at all
until a specific plan and report are prepared for a development
project, a hearing is held on the plan and report, and voters
approve the plan. Even then, in the event of voter approval,
Malibu’s administrative functions are curtailed, because under
“no circumstances shall any subsequent permit or approval
issued by any city department or official authorize, allow, or
otherwise approve higher square footage, density, or intensities
of uses, or less landscaping, open space, or mitigation
requirements, including traffic mitigation and safety
requirements, than were finally approved by the voters.”
(§ 17.02.045, subd. (F).) Measure R thus invalidly annuls or
delays executive or administrative conduct. (Lincoln Property Co.
No. 41, Inc. v. Law, supra, 45 Cal.App.3d at p. 234.)
Finally, we find unpersuasive the City’s supposition that a
facial challenge to Measure R is improper because the project-by-
project review it clearly contemplates may never come to pass.
Instead, the city council could adopt a specific plan for the entire
civic or commercial center, as opposed to a specific plan for a
single project. True, Measure R allows a specific plan to cover
more than one project. (§ 17.02.045, subd. (C)(1) [“One specific
plan may be prepared covering more than one development
project subject to this measure or a separate specific plan may be
prepared for each subject project”].) But nothing in Measure R
suggests that a specific plan for the entire civic center could be
adopted. Rather, the clear and unambiguous intent of Measure R
is to control development of projects in excess of 20,000 square
feet.10
10 Because we invalidate Measure R on the ground it exceeds
the initiative power, we need not consider alternative arguments
16
II. Legality of the CUP provisions
Measure R controls chain stores by requiring them to
obtain a CUP. (§ 17.66.130, subd. (A).) But before a CUP may
even be issued, Measure R requires the planning commission, in
lieu of the findings in section 17.66.080 about a property’s
proposed use, to make findings about the specific chain. Measure
R then restricts transfer of the CUP: “each approved [CUP] shall
run solely with the operation of the formula retail establishment
for which it was approved and continue to be valid upon change of
ownership of the formula retail establishment, the land, or any
lawfully existing building or structure on the land.” (§ 17.66.130,
subd. (D), italics added.) The meaning of these restrictions is
undisputed: the nature of the chain establishment is to be
considered, and, once a chain, say Starbucks, obtains a CUP, the
CUP can be transferred to another Starbucks but not to Peet’s,
notwithstanding that Starbucks and Peet’s have the same “use,”
i.e., both are coffee shops. Measure R CUPs thus are
establishment-specific and restricted in their transferability.
These features of the CUP, however, are contrary to well-
established principles. “A conditional use permit is
administrative permission for uses not allowed as a matter of
right in a zone, but subject to approval.” (Sounhein v. City of
San Dimas (1996) 47 Cal.App.4th 1181, 1187 (Sounhein).) A
CUP is not a personal interest. It does not attach to the
permittee; rather, a CUP creates a right that runs with the land.
(Anza Parking Corp. v. City of Burlingame (1987) 195 Cal.App.3d
855, 858 (Anza); see also Malibu Mountains Recreation, Inc. v.
about, for example, whether it also violates substantive due
process.
17
County of Los Angeles (1998) 67 Cal.App.4th 359, 367; Sounhein,
at p. 1187.) Otherwise, a condition regulates the person rather
than the land, improperly turning a CUP into an “ad hominem
privilege rather than a decision regulating the use of property.”
(Anza, at p. 859, citing Vlahos v. Little Boar’s Head District
(1958) 101 N.H. 460 [146 A.2d 257, 260].) A condition which
relates solely to the individual or applicant for the CUP does not
relate to the property’s use and zoning. (Sounhein, at p. 1187.)
In Anza, for example, Anza had a CUP authorizing the use
of land as a parking facility. The CUP was nontransferable, and
Anza sought to enforce that condition to prevent the CUP’s
transfer to another parking corporation. The Anza court refused
to enforce the nontransferability clause because a CUP “may not
lawfully (and perhaps may not constitutionally . . .) be
conditioned upon the permittee having no right to transfer it with
the land.” (Anza, supra, 195 Cal.App.3d at p. 860, third italics
added.)
In Sounhein, San Dimas issued a CUP allowing the
Sounheins to have a second residential unit on their property, but
the CUP, pursuant to a Government Code provision, had an
“owner-occupied” requirement, meaning that the Sounheins or
any subsequent owner of the property had to reside at either the
primary or the secondary residence. (Sounhein, supra,
47 Cal.App.4th at pp. 1186-1187.) The Sounheins challenged the
owner-occupied requirement on the ground it applied only to the
first property owner, i.e., the applicant-owner. (Id. at p. 1190.)
The Sounhein court rejected this challenge because it, among
other things, would have improperly conditioned issuance of a
CUP on the nature of the applicant, rather than on the use of the
property. (Id. at p. 1191.) “Thus, the issuance of a permit may be
18
conditioned on the character of the property as owner-occupied,
but not on the character of an applicant as an owner-occupant.”
(Ibid.)
Here too Measure R’s CUP, by defining Starbucks (staying
with our hypothetical) as a “proposed use” and by requiring the
land to be used only for a Starbucks, conditions the CUP on the
character of the permittee or applicant rather than on the use of
the land. The City suggests this is legal because a “particular
chain store” is a “specific [land] use”; hence, there is no
distinction between the “uses” of “McDonalds” and “Starbucks”
and “the more general categories” of hamburger joints and coffee
shops. But as much as one may believe that Starbucks and
McDonalds and their ilk have become so ubiquitous as to
constitute a generic land use, the City cites no authority to
support such a proposition. Starbucks is not a land use. “Coffee
shop” or restaurant is the land use.
Not only does Measure R’s CUP depend on the notion that
Starbucks is a proposed use, the CUP then “runs” with
Starbucks, which is precisely what Anza and Sounhein held was
improper. The City’s response—that the CUP runs with the land
because “anyone who acquires a CUP to operate a Starbucks may
transfer that . . . Starbucks, the land beneath it, or the building
that houses it”—is sophistry. True, if John gets a CUP to operate
a Starbucks, he may transfer the CUP to Jane. But Jane must
run a Starbucks. She may not run a Peet’s. As the trial court
recognized, Malibu’s distinction is one “between a business and
its ownership, not a distinction based on property use.” Malibu’s
argument still boils down to allowing the CUP to be transferred
only if a Starbucks continues to operate on the land—a
distinction not grounded in the use of the land. (Sounhein, supra,
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47 Cal.App.4th at p. 1187 [conditions of approval must relate to
the property “and not to the particular applicant”].)
III. Severability
Malibu argues that any invalid portions of Measure R may
be severed. (Preamble, supra, § 16.)11 A severability clause
“ ‘ “normally calls for sustaining the valid part of the enactment,
especially when the invalid part is mechanically severable. . . .” ’
. . . ‘ “[s]uch a clause plus the ability to mechanically sever the
invalid part while normally allowing severability, does not
conclusively dictate it. The final determination depends on
whether the remainder . . . is complete in itself and would have
been adopted by the legislative body had the latter foreseen the
partial invalidity of the statute . . . or constitutes a completely
operative expression of legislative intent . . . [and is not] so
connected with the rest of the statute as to be inseparable. . . .” ’ ”
(Gerken v. Fair Political Practices Com. (1993) 6 Cal.4th 707, 714;
see also Santa Barbara Sch. Dist. v. Superior Court (1975)
13 Cal.3d 315, 330-331.)
The three criteria for severability are that the invalid
provision must be grammatically, functionally and volitionally
separable. (Calfarm Ins. Co. v. Deukmejian (1989) 48 Cal.3d 805,
821.) To be grammatically separable, the valid and invalid parts
11 Section 16 provides: “This Act shall be interpreted and
applied so as to be consistent with all federal, state, and local
laws, rules, and regulations, including the Local Coastal
Program. If any provision of this Act or part thereof, or any
application thereof, is for any reason held to be invalid or
unconstitutional, the remaining sections and applications shall
not be affected but shall remain in full force and effect, and to
this end, the provisions of this Act are severable.”
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can be separated by paragraph, sentence, clause, phrase or single
words. (People’s Advocate, Inc. v. Superior Court (1986) 181
Cal.App.3d 316, 330.) Functional severability refers to whether
the surviving sections are capable of independent application.
Volitional severability refers to whether the voters would have
adopted the initiative without the invalid provisions. (Pala Band
of Mission Indians v. Board of Supervisors, supra, 54 Cal.App.4th
at p. 586.) In other words, would the voters have been happy to
achieve at least some of the substantial portion of their purpose?
(Santa Barbara Sch. Dist. v. Superior Court, supra, 13 Cal.3d at
pp. 331-332.)
A. Severability of the voter approval requirement
The City proposes to sever Measure R’s voter approval
requirements. This proposal does not address or cure the
infirmities in Measure R we identified; namely, the requirement
of a specific plan itself.
In any event, the voter approval requirement is not, at a
minimum, volitionally severable. The test of whether an invalid
provision is volitionally severable has been characterized as
follows: “ ‘[T]he provisions to be severed must be so presented to
the electorate in the initiative that their significance may be seen
and independently evaluated in the light of the assigned
purposes of the enactment. The test is whether it can be said
with confidence that the electorate’s attention was sufficiently
focused upon the parts to be severed so that it would have been
separately considered and adopted them in the absence of the
invalid portions.’ ” (Gerken v. Fair Political Practices Com.,
supra, 6 Cal.4th at pp. 714-715, italics omitted.) Here, the raison
d’être of requiring a specific plan is to allow voters to reject or
approve it. That voter approval is an inextricable part of
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Measure R is evident. The measure’s title is “Your Malibu, Your
Decision Initiative.” (Italics added.) One finding is, “Malibu
voters should have a voice in long-term planning and in deciding
whether large development projects that would radically alter the
character of our community should proceed.” (Preamble, supra,
§ 2, italics added.) The measure’s purpose and intent is to ensure
“planning by requiring preparation and voter approval of specific
plans for large commercial or mixed-use projects.” (Id., § 3,
italics added.) Newly added section 17.02.045 to Malibu’s
Municipal Code is entitled, “The Right to Vote on Specific Plans
for Specified Commercial and Mixed-Use Projects.” (Italics
added.) We therefore fail to see that Malibu voters would have
been happy with Measure R in the absence of the voter approval
provisions.
B. Severability of the CUP provisions
As to the CUP provisions, the City proposes to interlineate
the following italicized phrase from section 17.66.130, subdivision
(D): “To assure continued compliance with the provisions of this
Section, each approved conditional use permit shall run solely
with the operation of the formula retail establishment for which it
was approved and continue to be valid upon change of ownership
of the formula retail establishment, the land, or any lawfully
existing building or structure on the land.” (§ 17.66.130, subd.
(D), italics added.) This interlineation, at best, might address the
problem that the CUP doesn’t run with the land.
But it doesn’t address the establishment-specific problem.
Issuance of the CUP still depends on the applicant and not on the
use of the land. (See, e.g., § 17.66.130, subd. (B).) The City
admits as much when it emphasizes in its briefs that the CUP
focuses on the applicant to ensure “a permitted ratio of chain
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stores and avoid[ ] the AnyMall, USA effect.” Accomplishing this
requires a “thorough examination of a business.” (Italics added.)
This admission underscores the problems with the CUP
provisions and severability. Measure R was designed to control
not just chain stores in general but which specific chain stores
may be in the community. The interveners are quite clear that
the establishment-specific provisions are necessary to ensure, for
example, there are not two Starbucks in the area.12 Their clarity
on this point undermines their suggestion that Measure R’s CUP
can be saved by applying it to chains dedicated to the same use.
That is, a chain coffee shop could transfer the CUP to a different
chain coffee shop, e.g., Starbucks to Peet’s. But this still bases
the CUP on the nature of the applicant as a chain rather than on
the use that chain will make of the property. This, it seems to us,
is contrary to principles governing CUPs in California.
12 The interveners say: “[I]f the City is unable to consider the
identity of the particular restaurant or retail shop seeking a CUP
in a particular neighborhood, it will be unable to ensure a diverse
group of businesses exist to meet the needs of residents and
visitors. . . . [¶] . . . A Peet’s and a Starbuck’s may be similar
from the perspective of a person who wants a cup of coffee, but
they can be quite different from the perspective of a City that
already has one (or more) Starbucks and wishes to preserve the
small-town character of its City by avoiding ‘a predominant sense
of familiarity or sameness’ in its commercial base.”
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DISPOSITION
The judgment is affirmed. Intervener-appellants’ request
for judicial notice is denied. Respondents shall recover their costs
on appeal.
CERTIFIED FOR PUBLICATION
ALDRICH, J.
We concur:
EDMON, P. J.
LAVIN, J.
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