Voters in Malibu, CA, gave the nod to a controversial land use ordinance known as Measure R, which requires developers of new commercial and mixed-use projects exceeding 20,000 square feet to seek approval from local residents.
“Given the controversy, there is certainly possible litigation of Measure R,” said Nicki Carlsen, partner and co-leader of the firm’s Environment, Land Use and Natural Resources Group. “The concern regarding unequal treatment has raised issues because there are limitations on chain store development.”
Some argue the ordinance could violate the dormant Commerce Clause, the constitutional law prohibiting states from passing discriminatory legislation against interstate commerce.
The issue rarely comes up in land use law, Carlsen said, but in Measure R’s case, “it would be potentially a way to address this unequal treatment because obviously it’s the question of regulating interstate commerce.”