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L’Auberge Del Mar and Del Mar Plaza are the only two projects ever built under voter-approved Measure B, which was recently deemed unenforceable based on the outcome of a lawsuit involving a Malibu initiative fashioned after Del Mar’s. Courtesy photo
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Court rules Del Mar’s Measure B initiative invalid


DEL MAR — A court ruling for a voter-approved initiative in a city more than 130 miles away has rendered a similar land-use law in San Diego County’s smallest city unenforceable and thus invalid.

Measure B, endorsed by Del Mar voters in 1986, requires voter approval for downtown developments larger than 25,000 square feet.

L’Auberge Del Mar and Del Mar Plaza are the only two projects built under its guidelines.

In November 2014, Malibu residents passed Measure R, which “mirrored almost identically Del Mar’s Measure B,” Del Mar City Attorney Leslie Devaney said at the June 18 meeting.

Measure R prevented shopping centers from leasing more than 30 percent of their space to chain stores and required voter approval for commercial projects with more than 20,000 square feet of retail, commercial or mixed-use space.

A lawsuit was filed in April 2015 by Malibu property owners, including one who was developing a retail center anchored by an approximately 24,000-square-foot Whole Foods Market.

A Los Angeles Superior Court judge in December 2015 ruled Measure R’s requirements were illegal. His decision was later upheld by an appellate court.

Devaney said her office and city staff were aware of the 2015 decision.

“It was of no legal effect at that point given that it was a state court decision and no Del Mar projects were impacted,” she said.

When the appellate court affirmed the decision two years later, her office, city staff and then-Councilman Dwight Worden discussed the implications.

“The appeal period expired, but it was unclear if Malibu was going to do anything about the decision,” Devaney said. “Staff and legal evaluated this decision to determine the rights of developers who had Del Mar projects in the pipeline, as well as to evaluate the legal risks to Del Mar regarding those projects.”

She said the city could not discuss the issue publicly until those risks were evaluated and options were identified and discussed with City Council.

The decision was announced at the June 18 meeting, as were options about how best to comply with the spirit of Measure B, Devaney said.

The topic is on the front burner because plans are moving forward for 941 Camino Del Mar, a project that would have triggered Measure B compliance.

But the fact that the initiative is no longer a viable option will likely have little impact beyond the 941 project.

The site, previously home to a gas station and more recently approved for the Garden Del Mar project, is the last piece of property that could accommodate a development in the downtown area that would have required Measure B compliance.

“I think Measure B, by and large, served its purpose,” said Worden, who drafted the initiative while serving as the city attorney. “Its intent and purpose at the time was to address the Del Mar hotel project and the plaza project.

“As a result of Measure B, I think the community got very good projects for the plaza and the hotel,” he added, noting that a required public benefit from those developments funded the library.

“There are no more properties right now in the downtown area that are big enough to trigger Measure B, so its demise is not traumatic to me,” Worden said. “But if there is some desire in the community to replace it with some new mechanism for public voting, that could certainly be a topic of discussion.”

City Council is expected to discuss the impacts of the Malibu ruling at the July 2 meeting.