Agenda - Planning Commission - 09/07/2017

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August 25, 2017 I Volume 11 I Issue 16 Zoning Bulletin the world and maintaining two or more of the following features: stan- dardized array of merchandise or menu; standardized color scheme; standardized decor, fa?ade, layout or signage; a servicemark or a trademark; 'and' uniform apparel." Measure R restricted the size of chain establishments. It also required that "formula retail establish- ments" obtain a conditional use permit ("CUP"), to be approved by the City's planning commission only upon findings 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 same- ness, with consideration for all existing formula retail establishments;" and will promote a diverse commercial base." Further, Measure R provided that such 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." The Park at Cross Creek, LLC (the "Park") and Malibu Bay Com- pany ("Malibu Bay"), both of which were developing projects in the City, petitioned the trial court to have Measure R declared invalid. They argued that Measure R improperly subjected administrative acts to vote, created an illegal CUP, and violated their substantive due pro- cess rights. The trial court agreed with the Park and Malibu Bay. It 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. Accordingly, the court declared Measure R facially invalid and enjoined the City from enforcing it. The City, along with individuals who were the official proponents of Measure R, (hereinafter, collectively, the "City") appealed. DECISION: Judgment of Superior Court affirmed. The Court of Appeal, Second District, Division 3, California, held that Measure R exceeded the City's initiative power and was illegal. In so holding, the court explained that 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." The electorate has the power to initiate legislative acts but not administrative or adjudicatory ones, said the court. The court explained the "rationale for this rule": "to allow the referendum or initiative to be invoked, to annul or delay the executive or administra- tive conduct would destroy the efficient administration of the business affairs of a city or municipality." 6 © 2017 Thomson Reuters