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.

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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