Mark McDermott

Building a Better Redondo wins lawsuit against city, forcing harbor zoning vote

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A Superior Court judge last week ruled in favor of citizens group Building a Better Redondo in its lawsuit against the city with a strongly worded ruling that will force a public vote on harbor area zoning changes.

The city had claimed that zoning ordinances approved by the City Council in 2005 and 2008 predated the BBR initiative, Measure DD, which was overwhelmingly approved by voters late in 2008. DD enacted a change in the City Charter requiring a public vote on “significant changes” to land use in the city. The zoning amendments would have allowed up to 400,000 sq. ft. of additional commercial development in the harbor area.

BBR successfully argued that the zoning ordinances were not effective until certified by the California Coastal Commission, the state agency that oversees all coastal development issues.

Judge Robert O’Brien said the ordinances amounted to “contemplated legislation” and had not taken effect prior to DD’s passage.

“There are no magical words that could change the fact that the Coastal Commission had to certify the ordinances,” O’Brien wrote in his seven page ruling. “While the ordinances might say that they took effect 30 days after enactment, the fact is they didn’t. The City had to wait for the Coastal Commission to act.”

The Coastal Commission considered the city’s Local Coastal Program in July, 2009. The LCP, once certified, includes a Land Use Plan (LUP) of which zoning ordinances are a part. The commission tentatively approved an LUP for the city, requiring 17 modifications – including view corridor protections and a public boat launch – which the council in April of this year adopted in order to gain full certification of its coastal program. The LCP would enable the city to approve projects in the harbor without going before the commission for every change.

The city argued the LCP was subject to a public vote but the ordinances themselves were independent of the plan and had gone into effect upon council passage in 2008.

BBR chair Jim Light said the judge’s ruling vindicated the argument he and fellow activists – including Councilman Bill Brand – had been making all along. He chastised the council for engaging in a costly legal battle that thus far has cost the city $25,000 in outside legal fees and BBR more than $40,000. The election itself will cost an estimated $165,000 if it occurs in November.

“It is unfortunate that the residents and the City have had to bear the cost of this legal action,” Light said. “…Now that an impartial judge has made his determination, I hope we can work together to move forward:  measure the people’s will in a public vote, create more balanced zoning for the harbor, phase out the power plant, and revitalize our harbor without overdeveloping it.”

Brand urged the council to immediately begin a more inclusive public process to establish harbor zoning.

“It’s time to restart the Redondo Beach waterfront planning process and engage the public in a meaningful way this time,” Brand said. “We’ve been stalemated for years because the public has been locked-out of the planning process – hence the costly conflicts. But if they get to plan it, they’ll vote for it.”

City Attorney Mike Webb sought clarification earlier this week from Judge O’Brien regarding what the effective zoning in the harbor currently is, given the fact that the city has been operating under the assumption that its zoning ordinance went into effect in 2008. But O’Brien advised the City that such a determination was beyond his purview.

Webb expressed frustration that O’Brien could not suggest what zoning is now in effect, particularly since Measure DD requires that the sample ballot describe both existing conditions and current zoning.

“I think it is an illogical decision,” Webb said. “I think the fact that the court can, on one hand, say the city’s interpretation of zoning is wrong, and then asked for clarification say it’s out of the purview of the court to determine what the zoning is shows a lack of logic.”

Webb said a possible conclusion of the ruling is that only zoning enacted prior to the passage of the Coastal Act in 1976 is in effect. If true, Webb said, the city’s coastal area would revert to 1964 zoning, which had no density restrictions. The big winner, he said, would be the AES power plant, which would gain full industrial zoning and lose the park designation added to its current power generation zoning in 2005.

“The unintended consequences are they may turn it back to 1964 zoning,” Webb said. “They may be responsible for removing park as possible use for the AES land. You know, who should be most happy about this ruling is AES – going back to 1964 means planned industrial. Think about how bulletproof that makes them going forward. And it will be Bill and Jim who are responsible for that.”

BBR attorney Frank Angel called Webb’s argument a “straw man.” He said all projects would face both council and Coastal Commission approval. And he suggested that the overriding issue is something much simpler – the public’s right to vote.

“Our interest is that the entire Local Coastal Program be on the ballot,” Angel said. “That is the democratic right, and that is a very important thing…The key issue is that the public should have the right vote, and we were vindicated in that, fully vindicated.” ER

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