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On The City Council Agenda, May 7, 2013
Happy Cinco de Siete. The bad news is, my desktop is in for repairs and will, hopefully, be out by this next weekend. Of course, depending on the cost, a new one may be in order. In the meantime, I will struggle to get out posts with the reliable but anachronistic netbook. Isn’t it amazing that, just a few years ago, the netbook was the hottest thing on the market? Now, they are right up there with…desktop computers.
It looks to be a busy night for the Tustin City Council as they hold a couple of public hearings preceded by a slew of feel good presentations. The presentations are likely to be lengthy with lots of pomp and circumstance (emphasis on pomp).
The first public hearing is to establish a new Community Facilities District and accompanying mello-roos tax for an area of the Tustin Legacy. You might think this a routine issue but, it is a timely one for the city. It should be unsurprising that, the vote on establishing a CFD, when there are no residents in the location, falls to the landowners, in this case, the city. So, why wait until there are pesky homeowners to get in the way of establishing a tax base? Trust me, the entire hearing is pretty much pro forma for establishing the CFD and it is doubtful there will be much input from the public. It is probably a good thing the staff know what they are doing. That way the Four Amigos only need to say “yes”. One thing the folks moving in should know is this is a forever tax that will be passed on to future landowners owners. That tax will increase by two percent per year ad infinitum.
The second Pubic Hearing concerns the disposition of the Community Development Block Grant funding allocation. As you know, in the past we have been critical of the method used by the city council to disseminate CDBG funds. Specifically, the relationship of members of the city council to the executive director of the Tustin Community foundation which the city used to manage funds was questionable, to say the least.
Most recently, a committee made up of city staff members evaluated the current funding and made recommendations that can be found in the staff report. Of course, I am always amazed that, with funding and programs the community depends on we would allow city staff, most of whom live elsewhere, to determine what is best for us. In the end, worthy projects are being recommended for continued funding, including Human Options, Laurel House and Mercy House, all of which go to assist those most in need in our community.
One item I find interesting is the “Old Town Study” which is funded at $27 thousand dollars. This study appears to be a marketing study to see how the city can eke the most tax dollar out of the cultural overlay district. Could this project be the one to take precedence over the recent community development project to determine changes in the Old Town zoning regarding guest houses and second units? When an inquiry was recently made by a resident, they were told the guest house ordinance would be completed some time in the future, that it wasn’t a priority for city staff at the time. Really? Perhaps the city staff, which we have shown time and again is out of touch with city residents, should rethink that. More in a future article.
All in all, the proposed CDBG update is in order, regardless of how we got there, and it should pass muster with the residents of the city. It should be interesting how much back slapping the city council does before approving it.
The third Pubic Hearing has caused quite a bit of discussion both on the dais and in the community. Chad Ortlieb has managed to segue the Wilcox Manor issue in with the zoning amendments when they were before the city planning commission and he may show up at this meeting to discuss the issues again.
While the ordinance was being considered by the planning commission, more than 50 comments were received and supposedly considered by the commission. The city attorney attempted to block Ortlieb’s critical letter based on a timeframe until Ortlieb demonstrated that he actually was within legal limits. That in itself should tell you how desperate city staff are to get these amendments in. Why the hurry? In any case,it would not surprise me to see a few more comments at the public hearing and I imagine we will see another appearance by Lindburgh MacPherson who is sweating bullets over the Wilcox Manor CUP application being kept in the limelight when he hoped it would fade into oblivion. Sorry, Lindburgh, we still don’t want your dog and pony show in Old Town.
Item 7 on the Consent Calendar is to appropriate supplemental funds for the completion of Tustin Ranch Road and other road improvement projects. It appears to be a housekeeping issue more than anything else but, I’m no accountant so you may want to look at the agenda report yourself.
That’s about it. Unless you are a glutton for punishment, come late and go home early. By the way, the agenda doesn’t mention it but, I could have sworn The American Legion Pot 227 was back in good standing. If so, the should provide they best presentation: our Flag.
Can We Have A Do Over?
It didn’t take long for the newly seated city council to stir things up and create a little controversy while violating the Brown Act at the same time. Tuesday’s Tustin City Councill meeting demonstrated their ignorance when it comes to conducting city business. Of course, John Nielsen wasn’t there to guide them and it was left up to Mayor Murray to carry the ball. We did not expect much from Murray and that is what we got.
Chad Ortlieb, an Orange city planner and Old Town Tustin resident who previously spoke on the subject of the Wilcox Manor, showed up during public comments to complain about the apparent gross errors of the Fab 5 in handling the continuance of the Wilcox Manor CUP application last meeting. If you recall at last month’s meeting, Ortlieb appeared to question whether any type of event center was appropriate for the Old Town residential neighborhood. His discussion at that meeting generated a flurry of activity on the dais as councilmembers, looking like Keystone Cops, raced for the door saying they had to recuse themselves from any discussion. It also raised with us, at the time, the question of why the item would be continued for eight months. It was pretty obvious to us the reason the councilmembers were in such a hurry to exit the dais.
So, Ortlieb came back this month to ask the question we have wondered all along: Why an eight month delay? He also asked a few other questions concerning the validity of the application itself and whether city staff were playing footsie with the applicants to accommodate them. To their credit, this time the city council remained in their seats. From Ortlieb:
The rights of Tustin residents to have the council decide the continuance of the Wilcox Manor project were violated. At one point, in the meeting, councilmember Gomez asked the city attorney. ‘Does this item require action?’ The city attorney’s response was, ‘No. It’s already been agendized as continued’. Staff did not have the right to remove the continuance from the council’s consideration. The consideration is exclusively the council’s purview. If you want to take a look at Government Code section 94955, I think that’s a good starting point. But, to ask the question, can the city council continue something to a date, but have staff continue it for the council without any direction by the council? The answer is, no. Had the project been advertised differently, without staff saying it’s continued, a different public attendance and public participation could have resulted. The council had the right to deny the continuance request and even a right to make a decision on the project at that meeting. For the record, I don’t believe that a continuance to September is reasonable. Confusing matters is that, even though there was no quorum, the council, applicant representative and staff all conducted council business and spoke regarding the project. But, nobody else from the public was extended that opportunity. One of the attorneys present should have noticed the lack of a quorum. Also, just to pose the question, why did the applicant attorney show up if the matter was continued automatically by staff?
Ortlieb goes on to say the project should be re-noticed and advertised to the public with the city council subsequently deciding what, if any, extension will be allowed. He went on to say that the use [as a non-profit venue] was never allowed in the type of zoning the residence is in to begin with. He also stated that staff should never have considered the CUP as the type of venue is not allowed. “Staff should not be allowed to set land use policy of this magnitude even for a non-profit use.” Ortlieb further said the consideration by the city council was improper in the first case. Even though the original CUP went before the city planning commission, the applicants substantially changed the application request before it landed in front of the city council. That, according to Ortlieb, meant the application should have gone before the planning commission one more time.
Of course, we agree. As we had pointed out, Linburgh McPherson and Michael Demoratz, the trustees and owners of the Wilcox Manor, have misled the city during this entire adventure. They originally told the planning commission they had set up off-site parking when, in fact, they had done nothing of the sort. They amassed huge support at the planning commission meeting last year by busing in representatives from non-profits that had used the facility. The trouble is, most of those non-profits were from outside of the city where parking, trash and crowds would have no impact on them. The fact that several councilmembers have directly benefited from the use of the facility for fundraising as well, was not lost on the many residents who reside near the Manor.
The primary issue at this point was whether the staff had the right to automatically continue a matter before the council, on behalf of the council. We don’t think they did. We never got a good look at the audience for last month’s meeting but it seems to us that, even if one person who wished to speak was there, they should have been given that opportunity before a continuance was granted. Eight months is a long time for a continuance and, quite frankly, it appears as though the city council majority (we won’t count Gomez in this) was hoping that the lapse in time would allow them to return a favorable vote for the owners without raising eyebrows. To that effect, the city attorney bumbled his way through some sad explanation that it would be right for the councilmembers to recuse themselves, thereby eliminating the ability to act on the matter, but that one of the conflicted could subsequently return to the dais after drawing straws. How could there not still be a conflict for that councilmember? Better to have required a new application.
Ortlieb was left standing at the podium as the good Mayor thanked him for speaking and sent him packing. It should be interesting how concerned citizens react when the CUP is brought before the city council in September. As we told you before, we aren’t going anywhere and we plan on reminding our readers when the issue comes up again. At the very least, the city council should take a hint and refuse to hear the highly-modified CUP application when it comes before them. What should really happen is the applicants should be directed to start from ground zero with the city planning commission. The planning commission, of course, should research the issue as we believe Orlieb is correct in his assertion that the type of events McPherson and Dmoratz have been holding, have been illegal all along.
Will I See You In September?
The first meeting of the year for the Tustin City Council proved my prophesy that new blood will create new stories for Our Town Tustin. After a benign but professional presentation of the American Flag by Tustin American Legion Post 227, the new city council wasted no time in showing their true colors. Things got so busy on the dais, I think councilmember Beckie Gomez expected to see a Shriner car full of clowns driving around.
It started with the Oral Communications portion of the agenda when Tustin resident Chad Ortley asked the city council whether there was some new policy to allow “a party type facility in residential neighborhoods. My contention is the code only allows those types of uses in a commercial zoning district. But, some members of the public are not sure whether there’s been an exception to allow non-profits and, if so, how many persons would be able to attend that event and how often. So, I think it would be beneficial to receive clarification on that for staff purposes and, if that is the case, something the city wishes to allow, at least some members of the public would appreciate clarification…”
At that point, Councilman Chuck Puckett interrupted the speaker to say that he would have to recuse himself from the discussion. Although Ortley said he was speaking only in generalities and not to a particular situation, Puckett quickly surmised the topic was specifically about the Wilcox Manor and the efforts of the owners to turn it into a for-profit events center. What happened next, though, was comical to watch.
The city attorney was asked for his opinion. Surprisingly, he did not bring up the FPPC ruling and told the Puckett he should actually recuse himself, “given how related the two are, I’d probably advise you to recuse yourself.” Faster than a clown puts on greasepaint, councilmen John Nielsen and Allan Bernstein both yelled out, “I need to do that as well!” They then scrambled to see who could leave council chambers the quickest.
Of course, this left the dais without a quorum and city attorney Kendig was quick to state that it presented a “new issue” in that there was no longer enough councilmembers to carry on business. In order for any discussion to take place, the three members who recused themselves would have to draw straws to see which one would come back to the dais. The attorney left to fetch the three while Ortley finished his comment on the subject. The question arises as to what the three councilmembers who recused themselves discussed outside the council chambers. After all, they did have a quorum. (it also begs the question of how drawing straws would eliminate a conflict of interest if it would bring one of the conflicted back for the discussion).
A few minutes later, the two of the Three Amigos returned and took their seats. Not for long, however. When Kendig returned to council chambers, he observed that, since Ortley had finished his commentary, it was appropriate for the councilmen to return to the dais and that straws need not be drawn after all. The podiatrist councilman must have made a pit stop as it took him a little longer to get to his seat, necessitating the good mayor leaving the dais to retrieve him. Perhaps he got lost in the mens room.
So, Bernstein finally shows up with a bewildered look on his face and Murray takes up where he left off at Public Hearing Item No. 1… the Conditional Use Permit for Wilcox Manor. Believe it or not (you can believe it, you read it here), that engendered an entirely new round of who had to leave and who had to draw straws to see who got to stay. In the end, Kendig decided they did not need to draw straws unless further action needed to be taken. However, everyone would have to leave the the dais. Al Murray, who I am sure was right at home amidst this Keystone Cops scene, put it succinctly when he said, “It’s almost like musical chairs, ladies and gentlemen.”
So, why did all of this take place? Probably for the same reason -the real reason- the owners of the Wilcox Manor asked for a continuance on the hearing in the first place. A little bird whispered in their ear.
During the past year, Puckett, Bernstein and Nielsen have all held fundraisers at the Wilcox Manor. These fundraisers were held gratis, unless one looks at it (as we have) that the use of the facility was a contribution in kind. Although no money passed hands (except for Nielsen, who received money from the Wilcox Trust), it was obvious from the beginning that Lindburgh McPherson and Michael Demoratz, the owners, intended the use of their facility as a pay-for-play in order to obtain a favorable ruling from the city council on their CUP application. McPherson and Demoratz rallied the troops during an October Planning Commission meeting. The commissioners, looking for a way out, set up conditions that one might say were designed to protect the neighborhood but, when it came down to it, were designed really to discourage the boys from pursuing their plan. It very nearly did when it was discovered that McPherson and Demoratz had not exactly told the truth in their application concerning the parking issues. They were also less than thrilled with the conditions placed on them by the planning commission. In an effort to quash nearly all the conditions, they appealed to the city council, a group that had a somewhat vested interest in the operations of the manor as an events center.
When the issue first came up before the city council in November, 2012, the boys abruptly asked for a continuance, leaving their supporters, most of who had come from outside the city, flat. They also published a letter trashing some of the city’s notable residents. In one missive, they accuse Linda Jennings, president of the Preservation Conservancy, of allegedly making up commercial web pages promoting the Wilcox Manor as an “events venue”. Jennings has denied having anything to do with the websites and claims her opposition to the events center is personal, not as a member of the Conservancy which, she says, has taken a neutral stand on the issue.
It is interesting to note that Nielsen first recognized this as an issue when he attempted to recuse himself during the November meeting. Nielsen’s stated reason for recusal was that his wife, Erin, was the director of the Tustin Community Foundation, which holds fundraisers at the manor. However, as we mentioned, there were other issues as well. David Hunt esq., the same lawyer that currently represents McPherson and Demoratz, told him then that the purpose for postponing the vote was so that Nielsen would not have to, “face multiple issues you are faced with.” That would be like that money he took from the Wilcox Trust.
Councilmember Gomez, for her part, only wanted to finish the matter. She said that she had been speaking with a number of the neighbors of the Wilcox Manor who were concerned that, if the issue was not resolved, they would continue to hold events as they had been doing in the past. She was concerned that this had been going on for a year without resolution. The boys weren’t there but their mouthpiece, once again, showed up to muddy the waters.
David Hunt esq. effectively side-stepped the question by saying, “My clients don’t have any intention of doing anything that’s inconsistent with the current zoning between now and whenever the hearing is, ultimately, on the conditional use permit.” He went on to say how the regretted asking for a continuance but “they don’t have any intention of doing anything inconsistent with their current zoning and use.” You might take those words at face value but, he is a lawyer after all. And, lawyers are paid to muddy the water as much as possible. Just ask Kendig. Elizabeth Binsack, spoke plainly and said that, as long as they keep it non-commercial (we would claim that any organized business use, even a non-profit business, is commercial) and under 500 attendees, they could pretty much do as they pleased. So, what Hunt was really saying was that the boys will not hold events with 500 people but they still plan to hold events for non-profits. Good news for all those folks that showed up for the hearing to support the boys, even if they came for nothing.
So, why September 17, 2013? Is that a year from the last time Nielsen, Puckett or Bernstein held a fundraiser there? Is that the date of the check from the Wilcox Trust to the “Vote for John” campaign? That would certainly make more sense than the “personal and business issues” the Wilcox boys contend are the reason. Of course, there is also the issue of adequate parking. When the previous alleged parking arrangements were allegedly quashed by that concerned citizen, it became obvious that Lindburgh and Michael were not exactly being truthful, even with Community Development Director, Elizabeth Binsack. Rumor has it they have been all over town, attempting to work a deal. The latest story has them approaching the chamber of commerce looking for a spare parking lot.
Although many of us had hoped to see a workable resolution to the Wilcox problem, it appears we will have to entertain ourselves for another 8 months or so before we see what happens. Lest Nielsen, Puckett and Bernstein think the citizens of Old Town Tustin will forget, they can be sure we will be there to remind all of the relationship between Wilcox and the Three Amigos.
Stacking the Deck?
Although it was Election Day, about 50 people managed to show up for the Tustin City Council meeting last week to cheer on Lindburgh and Silent Mike. As usual, most of these “supporters” were representing non-profits from outside of the city. They were all set to cheer and speak on the Conditional Use Permit scheduled to be heard before the city council to turn the Wilcox Manor into a three ri…. a money making events center. Unfortunately, they all showed up for naught as the item was continued until January.
It was interesting that Linburgh and Silent Mike decided to get their mouthpiece to speak for them. You know they are serious about obtaining the CUP when they have to get a lawyer. Such a neighborly thing to do. When it came time for the Public Input section of the meeting, Lawyer David Hunt esq., who claimed to represent the boys in this matter, was first up. As he was about to speak, Nielsen interrupted him to say that he would be recusing himself from the proceedings due to a conflict of interest. Hunt replied that he was about to ask for a continuance so that John wouldn’t have to face “multiple issues you are faced with”, as he put it. The holidays and all… He then asked the meeting be continued to the second city council meeting in January to give him an opportunity to evaluate the comment letter received from the attorneys for the opposition. John still did the right thing by recusing himself for the vote. Somehow, I think he knew this was going to happen.
If I was truly amazed that Gomez actually voted with the boys on the continuance, I was even more amazed at what seemed genuine discussion between Amante, Gavello and Gomez on the issue of whether to move the item up on the agenda. Murray, who took time to stop playing with his iPad to actually preside over the meeting in John’s absence, thanked the assembly over the massive sound of hooves beating toward the door to make a quick exit.
So, why the bid for continuance? Apparently, there were several reasons not the least of which is the apparent conflict of interest that was raised by Tustinites who oppose the CUP. As we have pointed out before, John Nielsen’s wife Erin is the Executive Director of Tustin Community Foundation. TCF receives and manages quite a bit of funding received from the city to dole out to various community services and groups each year. Although the city and TCF have both tried to distance themselves from this issue, they haven’t done a very good job of it. And now, it has come back to bite Nielsen in the backside.
We also wrote of the appearance of a conflict of interest caused by Nielsen accepting donations from the boys as well as the Wilcox Trust, which the boys manage. Coupled with the in-kind donation of the events center for campaign fundraising, we have to wonder how much that would be in FPPC dollars. Is the city attorney concerned about that as well? Of course, we have seen that City Attorney David Kendig likes his job enough to go to bat for the right side of the dais even when the subject matter is questionable.
In fact, we heard from the fly on the wall that Nielsen spent the better part of an hour in the Mayor’s office, pacing back and forth while on the phone. While no conversations were heard, we can surmise that calls were made to Lindburgh and Silent Mike, as well as the city attorney and anyone else he could think of to allow him to get out of the predicament he found himself in, while allowing the purveyors of his favorite fundraising venue to go forth and destroy Old Town Tustin. Then too, we also heard the city attorney wavering on the subject (careful, Dave, or you’ll be shown the door). As luck would have it, no one had to embarrass themselves that evening. OK, everyone except Amante, who is just a plain embarrassment when he shows up.
The move, as it turns out, was a smart one. Lindburgh and Silent Mike did not have anything to lose, really. I mean, the weather right now is not exactly conducive to weddings or fundraising. And, with the possibility of a deadlock on the dais (did John call the lawyer and tell him to continue the item?), they stood to lose outright if the issue came to a vote. Which leads us to wonder why Councilmember Beckie Gomez voted to continue the hearing. After all, we were sure she supported the integrity of Old Town and that she would not be in favor of the CUP. At least, that has been the sway of her vote in past matters regarding the area. So, why was she so quick to join Hizzoner and Al in continuing this matter? We put a call in to her but have heard nothing as of this writing.
In any case, as we said, the Wilcox boys did not have anything to lose. Betting on the election, if their candidates lost, they would probably not get a permit. If they won, as they did, they would most likely get the CUP, in some fashion, approved. How the final CUP will turn out now depends on a few things, however. For one, John will still have to recuse himself from the dais as the fiscal year is not up. We also think the Podiatrist-elect should also recuse himself as he was invested heavily by the Wilcox boys by that same use of a venue for campaign fundraising. Somehow, we think he will take the same unethical stand as his mentor and neighbor, Amante.
Looks like the deck is stacked against Old Town Tustin.
