Jul 29, 2014
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Opinion: Don't Fear Measure A

Vote with your conscience, advises attorney and mediator David A. Mallen.

Opinion: Don't Fear Measure A Opinion: Don't Fear Measure A Opinion: Don't Fear Measure A Opinion: Don't Fear Measure A Opinion: Don't Fear Measure A Opinion: Don't Fear Measure A Opinion: Don't Fear Measure A

by David A. Mallen

I am speaking up on Measure A because I want my neighbors to know what to fear—and especially what not to fear—about Measure A. 

Two weeks ago, I called my councilman about Measure A. He spent an hour scaring my pants off.  If Measure A passed, he warned, the city would have to come up with $100 Million to pay AES for a 30-acre park, plus millions more to defend a lawsuit. I called another councilman and got the same scary story.  That night I tossed and turned, concerned that Measure A spelled disaster. 

The next day I read Measure A and many U.S. Supreme Court cases on zoning law. These laws don’t read like Dr. Seuss but are “old hat” to me after 21 years as a lawyer and a mediator. Once I understood the laws, my fear of Measure A melted away. Basically, our Supreme Court does not require a city to pay a landowner for “taking” private property unless zoning diminishes the value of land by more than 85-90 percent. (See Brace v. U.S. (2006) 72 Fed. Ct. 337). Not even AES is claiming that.

Let me to take a moment to clarify the true intent of Measure A. First, Measure A asks the California Energy Commission (“CEC”) to analyze California’s power grid. If the CEC says we all need AES Redondo Beach, then AES gets a new power plant. If the CEC denies a new permit, then the power plant goes away in 2020. Ultimately, the CEC decides to grant or deny AES a new power permit—not the people of Redondo Beach. Measure A simply asks, “Please look at the need.”

Second, Measure A’s zoning law begins in 2020, if and only if AES is denied a power permit. Measure A would zone 20 acres of AES land as “commercial space” and 30 acres as “open space.” Some say this zoning would increase the value of AES land, but the “open space” requirement has AES & Friends in a tizzy. 

Now comes the scare tactics. If Measure A passes, warns AES, Redondo Beach will either have to come up with $100 Million in seven year for a 30-acre park, or go bankrupt. This is false. This “fallacy of false choice” is designed by AES and its public relations team to scare voters. We expect AES to scare voters. We should not expect our city councilmen who pal around with AES to repeat this nonsense.

Voters need not be afraid of Measure A because: 

  • It requires the city to purchase absolutely nothing. It allows AES to sell its land to anyone for the highest market price.
  • Its definition of “open space” may include profitable “open space” such as: public recreation, sports facilities, an amphitheater, landscaped rest and viewing areas, walkways, public service amenities and parks.   
  • Its 60-40 zoning mix is endorsed by legal and land-use experts.
  • It is flexible enough for zoning variances by city council and revisions to the zoning mix by a vote of the people. It gives private developers several years to create a great vision for our city. 

Zoning of coastal land must balance a good return on private investment with population density, parking limits, health hazards, and quality of life. Measure A promotes this balance. Neighbors remain free to discuss the best zoning balance in the next seven years.

Meanwhile AES continues to bang the “lawsuit war drums,” knowing that fear of lawsuits can trigger fear-based votes. In my legal opinion, the threat of an AES lawsuit is pure speculation—like the threat of a person shouting “fire” in a crowded movie theater out of paranoia that a fire may occur in some movie theater at some time in the next decade. It could happen. But I would not bet on it.

The truth is, AES cannot mount a legal challenge until the next decade. Courts don’t grant legal hearings or speculative rulings based upon what might happen years from now. AES knows this but won’t come right out and say it. AES wants you to be afraid. Don’t be. Any good land-use attorney can confirm that our City faces no real danger of losing a lawsuit. Not now. Not ever. Not even AES claims that Measure A would diminish the value of its land by 85-90 percent.

Some fear the law is uncertain. I disagree, but let us imagine a worst-case scenario anyway. Say, for example, AES beat the odds and wins a lawsuit in 2023. Even then, the court would offer the city a choice: “Either go back to the voters and fix the zoning mix, or pay for the diminished value of AES land.” The city can cross that imaginary bridge without fear of bankruptcy or boondoggles by the beach. 

You won’t get this truth from City Council. Nor will you hear my knock on your door telling you how to vote. All I am saying is that every Redondo Beach voter who has the time should take 15 minutes to read Measure A and then go out and vote on March 5. Let your conscience be your guide, not your fear of imaginary lawsuits that pose no threat of harm to our great City.

North Redondo Beach resident David A. Mallen is an attorney and mediator.

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