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Opinion: Don't Fear Measure A

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

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.

David Mallen February 24, 2013 at 08:58 PM
John (Paid AES Spokesperson): Just in case your invocation of "best and highest use" confuses your neighbors, let me remind you that the land owner only gets to value property at its "best and highest use" when the government takes it and tears it down to build a train track or highway or something like that. Measure A upzones AES property, so best and highest use is pie-in-the-sky in this discussion. Here is a link to a law firm web site FAQ http://www.condemnation-law.com/main/eminent-domain/faq. John, this is getting embarrassing. Quit while you are behind.
Stewart French February 24, 2013 at 10:31 PM
Jim Light and Lawyers (Angel and Mallen) are reasons enough to Vote NO on A! Just 21 posts by Mr. Light. Running out of material Jimbo?
David Mallen February 24, 2013 at 11:40 PM
Thank you for joining in the discussion, Mr. French. Tell us more, please. I feel like I can always learn from neighbors if I just listen attentively. I have learned so much in the past three weeks. Before that, I did not even know my Councilman's name, LOL. If you are afraid of lawyers and lawsuits, I get that. Most people are. Tell me what makes you concerned or fearful in this matter. I promise I will be as honest as I can be and tell you what I have learned. If you want to discuss it offline, let me know and I will arrange that. I am your neighbor. I belong to no group. I am not paid by anyone. And I have promised to respect the views of my neighbors, even if I disagree. Otherwise, I'll get an earful from my wife, who is far more charming and polite than I, haha. (Paid AES spokespersons, politicians, and the CEO of AES-Southland don't get a free pass, however. I speak truth to power in a more direct and confrontational way. They only understand power).
Jim Light February 25, 2013 at 10:27 PM
I'm not sure which photo you are talking about. The new stacks are shorter and fatter on the newer plants. So they look huge. And they will be releasing the pollutants closer to the ground. The plant is still going to be 80 feet tall, which is about 10 feet shorter than the current facade - still huge and despite the deceptive angles shown by AES - still very visible from all sides. A 40 foot tall building cannot hide an 80 foot tall wall.
DR February 26, 2013 at 12:13 AM
It's something I learned a bit about in my "Film and Propaganda" class in college. Depending on the perspective, and how large you make it, you can make a bunny seem evil. Speaking of smoke stacks... NPP claim they are espousing the TRUTH? How truthful is their most recent mailer they just sent out which shows a picture of the "New El Segundo power Plant"? The picture shows a new power plant with three stacks, with the title "New El Segundo power Plant" . The New El Segundo power plant only has two stacks. That's one heck of a PhotoShop job. They even PhotoShopped out the rocks in the water. Why are they being so deceptive? What else are they not telling the truth about in that mailer?
Grant Patterson February 26, 2013 at 12:50 AM
DR, Grabbing at straws? I appreciated the photo because it shows an illustration of what a new AES plant would look like. The photos that AES keeps putting in their propaganda mailers are probably true to design but from an angle that isn’t true to reality. Thanks NPP for putting reality in the hands of the voters.
Jim Light February 26, 2013 at 03:40 AM
Mary - got it. The stacks are the stacks at El Segundo. That is what the stacks on several of the new plants look like. Not just skinny tall stacks like the current ones. The new plant will have three stacks. The new plant will be about as tall as the whaling wall. Way too big to hide anywhere on the site. AES' views are convenient and deceptive.
Jim Light February 26, 2013 at 04:31 AM
There will be three new stacks 130 feet high and much fatter as shown in the pictures releasing pollutants even nearer to Redondo neighborhoods. Since AES has neglected to give us a clear image of the new plant, I don't think it deceiving at all to use one from a new plant to show the future. I have also uploaded pictures of the smokestacks from three new plants - Sentinel, Walnut Creek and Canyon plants - to give some idea of what smokestacks for other new CCT power plants look like. I don't think it vindictive, though I did not upload any of the original photos. I think it informative - again especially since AES gives obscured views at best. There is no way an 80 foot tall plant with 130 foot tall smokestacks will be pretty. It will not enhance our town. And it will continue to isolate residential neighborhoods from our harbor. Showing an actual picture of a brand new power plant is not deceptive and does not equate to the unsubstantiated fear mongering of the No on A crowd.
Grant Patterson February 26, 2013 at 09:28 PM
Mary, I am sure Jim will respond with a more "legal" response or you can read all the posts from David Mallen. You seem to have forgotten the opinion at the begging of this post. So, in my own words, pull up your pants and fight for the right thing for Redondo. People (spelled correctly), can file a law suit for anything. It doesn't mean they have legal grounds to sue. David did a very good job of supporting this and not 1 single person, not even an $18,000,000,000 company can put out a historical case to state what grounds they have to sue. This is apparent in the fact that they are spending $100,000's to defeat Measure A. So to conclude, you are probably just posting so that if there is anyone reading this blog that has any inclining of doubt or fear they will cave to your unsubstantiated views. Vote how you will but don't deny or spin the historical facts about the legal strength of Measure A. PS - not everyone does spell check on their posts, but this is the type of detail you have to fight with when you have no facts to back your argument.
Jim Light February 26, 2013 at 10:12 PM
Anyone can sue for anything anytime. We did not want to mislead people. We have always maintained that Measure A is on VERY strong legal ground and we have repeatedly described why that is. We have held two public forums the included lawyers who cited case law supporting the strength of Measure A. We have had lawyers volunteer their time because they see through the legal fearmongering. Remember AES threatened to sue if the Council put Measure A on the ballot. They backed down when the Council called their bluff. At our last public session, David did a great job of explaining 1) why Measure A is on such strong legal ground, and 2) how easy it is to handle a frivolous lawsuit. It does AES no good to in cur unnecessary cost and delay compromise if Measure A wins and the CEC denies their application. Ask you self why AES is spending hundreds of thousands of dollars to defeat Measure A. It is because they know the CEC will likely deny their application and then they are very shaky legal ground becasue Measure A represents an upzoning in that case.
Jim Light February 26, 2013 at 10:21 PM
I honestly doubt it will get to a lawsuit. If A succeeds and the CEC denies their application, Measure A gives them more value for their land. A judge would laugh at their lawsuit at that point. And if they do sue, getting it thrown out would not be costly or time consuming. It would be in AES' best interest to negotiate rather than sue. Mary we have a lot going on. Please excuse the minor typos. Expediency and efficiency are more important than finding every little typo. We don't have a paid full time editor.
mark schoennagel February 26, 2013 at 10:29 PM
Its truly sad that some residents here in Redondo are as scared as Mary is over the threat a lawsuit. But then again I guess that's what "Protect Redondo Beach" really means on the No Way on A signs right? I asked several times but no one on the AES bandwagon would come out and say it. What arrogance this company has to threaten our residents to this level. Why not just come out and say it AES? Protect Redondo is thinly disguised threat, this company is nothing but cowards. Keep this in mind residents, Measure A will change the zoning for the AES property and by doing so significantly increase the value of their land. IF they try to sue they will be laughed out of the courtroom. Commercial waterfront zoning will make that land WAY more valuable then its current Industrial zoning. Measure A actually gives AES a boatload of free cash, hardly a "take." Mary, please, for the community, take a stand and join many of your neighbors who aren't going to be bullied by this company. YES ON A!
mark schoennagel February 26, 2013 at 10:33 PM
PS, Mary I meant no disrespect when saying its sad you are worried by a lawsuit. I can understand why you feel that way, that AES has caused you to feel this way with their tactics is what I feel is sad.
Teresa S February 27, 2013 at 01:09 AM
I didn't want to comment before but I cannot keep quiet anymore. The No on A campaign is disgraceful. Has anyone bothered to notice that our own city attorney has not mentioned any of the scary claims AES & their team are making? Not one. Who has read his impartial analysis? Did he note impacts over a tidal wave of taxes? No. Did he cite concern over a takings lawsuit? No. Did he cite the zoning was illegal? No. Did he cite the city would have to pay for anything? No. Clearly because Measure A text does not require any of this. The claims by AES' campaign are all made up stories/fears- they can legally say anything to get all of you to cower in fear and Vote No. I find it alarming that few residents are paying attention to the large mixed-use development AES has unveiled that will be next to their new power plant. How long will it take to drive 5 min on PCH with an enormous 38 acre mixed-use project on this site? Who is nuts to think this site can handle that much development? On top of all the new development on our pier. I did some research & here are the folks in our city currently helping AES that voted for or were involved with the 3000 condo plan for Heart of the City in 2002. Mike Gin, Steve Aspel, Matt Kilroy, Pat Aust, Kevin Sullivan, The Chamber of Commerce...is anyone connecting the dots here? Missing from my list are No on A supporters who have taken money from AES: Councilman Diels, Current Planning Commissioner Marc Mitchel, Developer John Mirassou..
Alexander Starr February 27, 2013 at 01:47 AM
Well written Teresa S. RB A City Attorney's impartial analysis on Measure A makes NO mention that 1) A is an illegal "taking" with resulting lawsuits, 2) taxes will increase and we will need to pay hundreds of $ millions, 3) The rezoning of A was illegal. Conclusion: None of these No on A "scare mongering" threats are real. Let's get rid of ASPEL, Aust, Kilroy and Diels at the elections. KICK THESE BUMS OUT OF OFFICE - they have betrayed their oath to protect the best interests and health of RB residents by doing nothing to stop a new powerplant, by promoting high density developemtn and Developers special interests, and by LYING to the public with the usual "fear Mongering" threats about Measure A. Why do ASPEL, Aust, Diels and Kilroy NOT follow the City Attorney's impartial legal analysis of Measure A? Why do they parrot the "FEAR" arguments of AES's script ? Conclusion: They are corrupted by special interests- The Chamber and big development.
Fred Reardon February 27, 2013 at 03:20 AM
Mary, you won't need to attract files with honey in RB. They will likely fly elsewhere to avoid the chemicals in the air. May I suggest rather than worry about a photo illustrating what is coming, which is hard to accurately create. Drive up to El Segundo and check out the two giant new smoke stacks, add a 3rd in your mind, and that will give you an idea of what is coming if measure A is defeated. Because this new power plant is not a required, and because AES does not have a permit to run a new plant, pro power plant cheerleaders are basically trying to create the illusion that AES can sue us for something they don't have. Many of us are very passionate about this issue because we are concerned about the misinformation being put forth that can result in harm to our families and community. Therefore, we support Yes on A and I hope you will continue to research the issue and make a good decision.
Fred Reardon February 27, 2013 at 04:18 AM
Thanks, Good Night & Pleasant Dreams.
mark schoennagel February 27, 2013 at 04:19 AM
Unfortunately the new stacks are NOT smaller. They are much fatter and industrial looking, I think thats why Fred suggested you take a look, as all residents should, of the new plant in El Segundo. The new technology stacks are very ugly. They might be shorter but they definitely feel bigger.
Tim Sole February 27, 2013 at 04:31 AM
Mark, not to be mean spirited, it's an industrial building, it looks, well industrial, what is it supposed to look like?
Kelly Sarkisian February 27, 2013 at 04:41 AM
Are shorter and thinner stacks more appealing? It's kind of a weird position to take. Even a newer smaller plant will be a big grey industrial complex. I guess that's why I'm advocating to work with aes to find a solution to earn what the can an walk away from the plant.
Fred Reardon February 27, 2013 at 05:05 AM
The polluting smoke stacks look like most ugly polluting smoke stacks. They look like smokestacks which should be placed in an industrial location far from residential density and with enough buffer to protect human beings from chemicals. The buffer should be of adequate distance to allow the toxins to dissipate before entering people's lungs. No such buffer is in place to protect our families in Redondo Beach. Can anyone honestly say that people's homes should be this close to smokestacks that will release tons and tons of particulate matter? It's insane. Vote Yes on Measure A.
mark schoennagel February 27, 2013 at 05:50 AM
As with anything Tim there is good design, bad design and everything in between. The smoke stacks we have in Redondo are concrete so they are smooth surfaced without a lot of appendages hanging off. The new design in El Segundo has lights, scaffolding, and all sorts of other bits and pieces hanging off of them. They are shorter and more bulbous and just generally look worse... Not that what we have now looks in anyway shape or form as attractive architecture. I have to say, this is the most bizarre city argument I have ever been witness to. One would think every one of our elected officials and residents would be doing everything in their power to take advantage of this once and a generation opportunity to remove a power plant from one of the most beautiful, densely populated areas of the great state of California. The power plant made sense 100 years ago, not now. YES ON A!
David Mallen February 27, 2013 at 05:53 AM
If people focus on the INTERESTS and not the issues and the putdowns, the conversation crystallizes: 1. AES is interested in making the most money possible. AES will make tons of $$ on its 50 acres either way. It just wants more commercial space for more $$. AES wants Measure A to fail because Measure A asks the state to take a look at the power grid to see if we need AES any more for reliable energy. 2. Most Redondo Beach residents want adequate power and life without a power plant -- as long as we don't need it for power grid reliability --but many are afraid of a lawsuit by a Fortune 200 company (even if the chances of AES winning are tiny) 3. Most politicians like political contributions $$$ and like to see which way the political winds are blowing. Most on City Council, and our soon to be ex-Mayor, are probably not happy being outflanked on the issue and are attaching their wind sails to the the big Goliath with the most $$$ 4. This started out as a David v. Goliath. Now,Goliath has taken away David's slingshot with its big $$ marketing campaign. 5. Most people agree that the best way to resolve this issue, whether Measure A passes or fails, is to sit down and resolve this with AES and any land developers who put together a viable plan. 6. People get upset when their views are not respected.
David Mallen February 27, 2013 at 06:03 AM
Oh, and I forgot one more observation: People tend to get annoyed when you try to tell them how to vote. Most people can connect the dots, on their own, once they join in a fair-minded conversation with neighbors (not mailers) Cheers!
sheri patterson February 27, 2013 at 07:44 AM
Funny Kelly recites the same talking points as AES. "Work with us. Vote No on A so we can fool you, I mean work with you." I think it goes something like that.
Grant Patterson February 27, 2013 at 05:32 PM
Mary, Nice try at spin. I have no problem with your decision to not support Measure A but I will not sit back and let you and others try to persuade others without stating facts. You can have your opinion and even state it publically as we all have here. The problem I have is that there is no factual data that is presented. It is all statements that play on people’s fears. AES is a very smart and rich company that has done their due diligence to figure out what will win votes to their side. These tactics aren’t full of facts and charts. They haven’t even put data on the needs of the power. If someone debates me on an issue and has factual data to back up their argument then I am wise to listen. I can then agree with them, try to find facts or data that opposes their position or start using fear of the unknown to oppose them. Yes on A has done a very thorough jog of stating facts for all of their claims. AES and opponents to Measure A have nothing, not 1 single fact to back up their stance. You seem like a nice person from what you have written but even you have brought no facts to back up your decision. You can call me whatever you want but I will always push for people to vote based on facts and their desires. I can even appreciate someone that says they want 3000 condos and a power plant on the site. If I feel strongly to disagree then I can put my time and money in to oppose their idea. That is called Democracy.
Grant Patterson February 27, 2013 at 05:38 PM
Tim, If you listen to AES then you get the idea that they will hardly even be noticable. All of their data put forth and future renderings are misleading. So you are correct, industrial will always look industrial. Why doesn't AES just tell us the truth instead of trying to make industrial not industrial? Kelly (below) good point but that won't havppen if they get approval from the CEC. They will make millions more if they build then they ever will selling the land. I like you thought though.
David Mallen February 28, 2013 at 07:05 PM
Dear AES Vice President Eric Pendergraft. Remember those power blackouts in 2002, caused by AES? I do, and I am sure you do too. Here is a nice L.A. Times article that mentions you by name, entitled: "New Evidence of Fraud in Power Crisis." http://articles.latimes.com/2002/nov/16/business/fi-williams16 Just when I was wondering whether my neighbors and I should trust you, AES, and the politicians who pal around with you, I took a trip down memory lane. Small world. Glad to see you somehow managed to avoid jail time and get a promoted for fraud. More power to you.
Tacit_Blue March 01, 2013 at 06:55 PM
Because that's not the purpose of an impartial analysis. The impartial analysis is only supposed to tell you how effects the existing law and what occurs under the new legislation. It has nothing to do with the legality of the measure. Proposition 187, Proposition 22 and Proposition 8 ,all had the impartial analysis written by the State Attorney General, not one of them makes any mention of the constitutionality of those proposed laws in the impartial analysis. Yet all three ended up in court, and all three have been declared unconstitutional by a court of law. You guys keep repeating this meme about the impartial analysis, but it simply is not FACT and it sure as hell isn't accurate as to what the purpose of the impartial analysis is meant to achieve.
David Mallen March 03, 2013 at 04:15 AM
From a conversation I had this morning with one of the finest coastal land-use attorneys in California: "If AES is foolish enough to sue after Measure A passes, the Court will dismiss the AES case within a few months and order AES to pay the City's attorneys' fees under the anti-SLAPP laws of California Code of Civil Procedure Section 425.16."

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