City will not consider AES downzoning
Councilman Bill Brand Tuesday night revisited an idea first brought up by city planning staff six years ago – exploring the legal option of rezoning the AES power plant site so at some date in the future industrial use would no longer be permitted.
Brand, the chief advocate for creating a park on the site, said that AES’s recently announced intentions to repower the technologically outdated power plant along Harbor Drive means that the city urgently needs to examine its legal options or else find itself committed to another century of an industrial uses at the site.
“This is not a taking, this is not eminent domain,” Brand said. “We are not signing up to take their power plant…But we do have the right, under California law, to dictate what the uses are down there.”
Brand said his understanding of the law is that if the determination could be made the existing use damages the community more than a rezoning damages the current property owner, a city could legally undertake a rezoning to a less impactful use. He sought to have City Attorney Mike Webb research the matter and prepare a memo to give the council a better understanding of the legal issues surrounding a possible rezoning.
Webb acknowledged such provisions in state law may be applicable. But he cautioned the council not to proceed unless council members felt that they might seriously support such action, and warned that such a legal battle would likely be very costly. He described AES as “very litigious” and noted that the city’s recently concluded battle with the corporation over utility use taxes cost $500,000 a year.
“Even if I determine, yes, we are likely to win, if you determine the costs of litigation are not worth it, or we can’t afford it at this time, I’m saying please don’t direct us [to proceed with research],” Webb said.
Mayor Mike Gin said the city should be very careful.
“We realize, from a corporate standpoint, that perhaps AES may be interested in repowering,” Gin said. “There is also talk of a larger desalinization [plant] coming down there…So I think what brings this particular question forward is should we consider what the impacts of repowering the power plant would be.”
“I think we have to think long and hard about this,” Gin added. “…We have to assume we are going to have to pay all the legal costs associated with this.”
Brand could not find another councilman to support his motion to conduct the research, meaning the motion died without a second.
“I think the residents would certainly like us to look at this,” Brand said. “That is my judgment. I think they would be disappointed if we stood down just because we are afraid of getting sued.”
Councilman Pat Aust said it would be foolhardy and economically unwise to proceed with a large legal fight at the same time the city is asking wage concessions of its employees.
“This is the tough, tough times,” Aust said. “It’s not the time to go picking a fight with a bigger bully on the block.”
Councilman Steve Diels said he found it ironic that Brand, as supporter of the “slow growth” Measure DD who is involved in a lawsuit against the city over harbor zoning, would attempt to lead the city into another lawsuit.
“I don’t trust your judgment, really,” Diels said. “AES has promised to be there the next 100 years. That is a pretty strong statement. There are 100 years to work this out.”
Eric Pendergraft, the president of AES Southland, said the motion was ill-considered and failed to take into account the many implications relating to property values and impact the loss of the plant would have on the power grid. He also expressed personal disappointment.
“Mr. Brand, I am disappointed a lot in what seems to be a very quick change in your approach, from publicly stating on many occasions that you thought the city had mismanaged its relationship with AES….This is much more egregious than anything that has been attempted before,” Pendergraft said.
Brand stood by his wish to at least explore the matter. He said that the industrial uses along the waterfront hurt everyone’s property values.
“I think we are missing an opportunity here to even look at it,” Brand said. “I think it’s a big mistake.” ER