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On The Planning Commission, April 9, 2013

transparent governmentJust a couple of items on the Tustin City Planning Commission agenda this week. One of them, however, could engender quite a bit of discussion. That is, unless the commissioners choose to, once again, violate the Brown Act (with the city attorney’s blessing, of course). More on that later.

First up is a Public Hearing for a Conditional Use Permit to use an existing warehouse as a commercial gym. Spectrum Fitness is planning a small, personal trainer type facility in a warehouse area of the city. The proposed use is a gym catering to “small group high intensity workouts”. The facility would be open early morning until mid-evening. The area, located on Chambers Road, west of the freeway near Tustin Ranch Road, is rife with warehouse and manufacturing facilities and noise should not be a problem. The applicant expects 16 attendees per class and classes run about an hour at a time. the staff report assures the Planning Commission of adequate parking and required facilities to accommodate the gym. According to the report, the project is exempt from CEQA. It looks like a good fit for the community. Let’s hope the folks on the Planning Commission think so as well.

The second item is also a Public Hearing on Ordinance 1429, Zoning Code Update. This is the same item on the February 26th agenda and I still have the same concerns regarding the minor text amendments “that would incorporate policy practice into the Zoning Code.” The cited example was the requirements in policy for guest quarters to have a deed restriction recorded. Again, the lack of transparency is appalling but not surprising for this bunch. Apparently, I was not the only one to express concern as Chad Ortlieb submitted a letter of concern at the March 12th meeting. That meeting also generated discussion among the commissioners including Jeff Thompson and Fred Moore, who stated emphatically the comments and concerns raised by Ortlieb be thoroughly reviewed and considered even though the comment period had closed. Moore apparently took issue with the staff splitting hairs on the comment period closing a scant couple of hours before Ortlieb got his letter in.

Ortlieb, who is a former city planner with Tustin and currently works for the city of Orange, has expressed concern over the city’s handling of the Wilcox debacle. He has been a more vocal opponent of the plans to turn the historic manor into a three ring circus for the benefit of outside non-profit organizations who have little stake in how the planned commercialization would affect the Old Town neighborhood. In his letter to the city, he accuses the Planning Commission of violating the Brown Act in not allowing the proposal to be fully discussed in a public hearing as he was cut off when attempting to speak at the February 26th meeting.

The staff report includes an almost line by line response to Ortlieb’s allegations.  One of those is the city attorney’s response to the alleged Brown Act violation. The city attorney defends the commissioner’s actions by saying they have a right to place reasonable regulation for each speaker (we’ll note that is not each individual, but all speakers in general – something Ortlieb pointed out). Kendig’s explanation drones on into how the courts have upheld these regulations and then says, emphatically, there was no Brown Act violation. Of course, the only trouble with this is whether the spirit of the law or the letter of the law was violated. So much for open and accessible government. But, then, we know Kendig has no problem with the public being involved with the legislative process – as long as it doesn’t interfere with people who run the show.

Oh, and lest you think the city is not planning on destroying Old Town, page 4 of their response indicates they have already made up their mind:

Wilcox Manor applicants requested a CUP for outdoor event uses. They did so under a special provision and because the site is within the Cultural Resource (CR) District and Single Family Residential (R`) District…. the Tustin City Council may consider a proposed non-listed use of a property within the CR District when the use supports the purposes of the CR District… The Planning Commission recommended approval of the requested use to the City Council with conditions.

Uh, huh. Also, with the whole-hearted approval of Community Services Director, Elizabeth Binsack, who’s department has gone out of their way to appease the owners of the Wilcox. That, presumably, is in support of the majority faction of the city council, all of whom have received direct and indirect support by use of the facilities for political fundraising.

So, let’s see how the commissioners handle the issues and whether they will pass the ordinance with the unsubstantial amendments made by city staff. I should note that most of Ortlieb’s concerns have been blown off in the latest staff response. It remains to be seen whether Thompson’s and Moore’s concerns were genuine or just whitewash for the public. I see the paintbrush coming out.

Deborah, Where are Ya?

Courtesy of Broke-ass Stuart

Not a lot of hoopla during this week’s council meeting, unless you consider Hizzoner’s useless and snide comment about Deborah Gavello’s absence, hoopla. We don’t. In fact, we don’t consider much of anything Jerry rants about as worthy of comment. But, we are a public service and, as Jerry said at the last meeting about his own driveling, we feel it’s our duty to report his boorish behavior to our readers.

The public hearing on the Community Development Block Grant went pretty much without a hitch. Elizabeth gave her usual precise, if dry, PowerPoint presentation on the subject. Beckie Gomez brought up the issue of the Tustin Community Foundation and whether the TCF subcommittee that handles the grant consisted of only Tustin residents as required by the CDBG. As you know, we raised this issue some time ago when we found that John Nielsen’s wife, Erin, serves as the Executive Director for that non-profit. Elizabeth promised to get back to Gomez on the issue and we hope that the councilmember will not let her off the hook. We are not talking about a lot of money, but it is taxpayer money and the city should be following the rules.

Three items were pulled from the Consent Calendar for discussion. Surprisingly, even though Deborah Gavello was not present, the issue regarding the cooperative agreement on signal synchronization with Irvine and Newport Beach was pulled by Al Murray. Murray must be practicing his oratory skills as he pulled this item and the item on POD dispensing equipment for no other reason than to make pedantic commentary on both issues. Jerry, squirming in his seat on the side, couldn’t stand not to be the center of attention for so long and finally had to interject with his own blathering about how great the project was and how the three cities could sit down and sing Kumbya.

The big ticket item of the evening was the solicitation ordinance that would essentially prohibit panhandling from high traffic streets and skateboarding on private property. As we said in our last post, there is quite a bit more to this ordinance, but we won’t bore you with the details. Tustin Police Captain Charles Solano gave a brief and professional  presentation on the proposal. However, during his presentation, he pointed out the very issues we have with this ordinance.

To begin with, he said consideration was given to making the ordinance “content neutral”. Anytime I hear that phrase, I think, “oh we made sure that even those who would have no reason to be affected by this ordinance, is included so we can’t be accused of coming down on the homeless.” And, that is the real rub. The ordinance will prohibit solicitation, or panhandling, on high traffic streets. Now, the ordinance applies to the homeless as well as you and me. But, face it, when was the last time you saw me standing out on the street corner asking for money from passers-by (OK, if you are really wondering, the answer is, NEVER). So, why the issue with “content neutral”? because, then the city can’t say they are picking on the homeless, even though that is what this part of the ordinance is designed to do. And, although the ordinance only covers less than 2% of Tustin roads, it is the 2% that is some of the most highly traveled, and therefore highly lucrative, in our town.

As Captain Solano pointed out, there are five parts to the proposed ordinance, including the panhandling issue. The proposed ordinance also deals with solicitation on commercial property, door to door soliciation, as well as trespassing on commercial properties during non-business hours and skateboarding on private property. I have to tell you, listening to the presentation, it was apparent that a lot of thought was put into most of this ordinance before it was presented to the Council. Issues regarding 1st Amendment rights as well as inferring that our homeless were not cut completely off from being able to solicit you for that extra change in your pocket were considered.

I also don’t have an issue with an ordinance that would allow commercial property owners to protect their customers from the onslaught of solicitation that we are assaulted with almost daily when we go shopping at almost any venue from Trader Joes to the District. Private property is just that, private. and owners should be allowed to limit their liability and allow only those they wish (their customers in most cases) to enter. They should also be allowed to limit their liability from those who skateboard on their property, although we question why skateboarding was singled out from other activities. And, although it will leave our homeless in Tustin with fewer places to rest their weary bones after a hard day of panhandling, I also agree that business owners and their customers should not have to be greeted first thing in the morning with someone sleeping in the doorway of their business. Maybe, someday, Tustin will put as much effort into helping the homeless as they do in protecting businesses. Until then, move along, you weary homeless.

There is also no issue with the revamping of the door-to-door solicitation code. I get many solicitors each year on my doorstep. They want to sell me everything from religion to shoes. In most cases, when I am answering the door, I am thinking to myself, why doesn’t the city require a permit? So, this is a great section of the proposed ordinance right? Not really. There are several issues with this part of the ordinance. For one, the Livescan fingerprinting that would be required of each and every solicitor is expensive at about $120 a year. To me, this does not serve any outright purpose other than to create another burden on small business at a time when government, especially in California, should be looking to make it easier for businesses to operate. The city did this earlier this year in waiving license and permit fees to entice business in this sour climate. The Livescan really provides little more security than other laws that are already on the books. And, the permit that would be required should suffice in keeping track of the number of door-to-door salesmen in our town. Although Solano gave specific examples to support the need for the proposed ordinance, he gave none that actually occurred in Tustin proper. In fact, the closest incident occurred in North Tustin and he was pretty vague about the circumstances. That, in itself, should be reason enough to minimize this ordinance and its actual cost on business. Again, the permit requirement is a good one, just without the expensive Livescan fingerprinting requirement.

The presentation did answer one of our questions and that was that non-profit organizations like the Girl Scouts would be exempt from the Livescan fingerprint requirement, presumably because most of them already have stringent background requirements for their volunteers. And, the permit requirement would not apply to persons under 16 years of age, so your Girl Scout Cookie sales are safe.

Oh, but wait.

Councilmember Gomez brought up a couple of other issues as well. Bringing up the specific example of the no parking area of El Camino Real, she asked if the day laborers who congregate around the U-Haul building would be affected. And, although Captain Solano answered the question. I wonder if she got the answer she was expecting. The issue is whether the day laborers are actively soliciting as opposed to just sitting around waiting for someone to drive by and offer them a job. Hmm.

It gets better.

She then reminded the Captain that Tustin High School fronts El Camino and various school groups often have car wash fundraisers out there and actively solicit the public as they drive by. Would this

Courtesy of Tustin Acura

affect them? “Yes, they would technically be in violation of this ordinance.”. But, the following words really made me sit up and take notice: “In addition to that, I know that, Ms. Binsack could speak better to this than I could, we’ve been told in the past that there are water quality issues involved with having a car wash… there’s more than just this ordinance that would cause a problem for those types of activities.” Really? Come on, a crummy car wash to benefit the pep squad is going to crush the environment here in our town? What happened to Tustin loves Schools? As we said last time, maybe it should read, “Tustin Loves Schools….Most of the Time”. Kids, expect to see Elizabeth’s Code Enforcement SS at your next car wash fundraiser.

Of course, there was a lot of discussion during the public forum, most of it surrounding the issue of the non-profits and how the permitting process would be a burden to the volunteers. Most of the speakers were moms, who are Girl Scout leaders, who shared their concern over the ordinance and how it would affect their ability to sell cookies door-to-door. And, this is where Hizzoner and I agree: Don’t stand in the way of our cookies. The issue even drew the Chief Operating Officer of the Orange County Girl Scouts who shared her concern and the fact that they draw their business permit and carry it with them to show when necessary.

In the end, the City Council did the right thing and sent the ordinance back for revision to allow for the Girl Scouts to allow selling their cookies (and other large non-profits) without an undue burden, and that is a good thing. So, all is well and good in the city of Tustin….. except……

Everything was going smoothly. Parents and COOs were speaking their peace, including one unidentified Girl Scout mom who spoke about how the ordinance, as written, would be an undue burden and that the current ordinance was just fine. As she was leaving, again without identifying herself, Mayor John Nielsen clearly violated the Brown Act when he said, “Thank you. And, if you would fill out the form, so that we can…from the city clerk right here? Right here? In front of you? And, give it to this young lady here on the side right there, she’ll raise her hand… there you go. Thank you. Great.”

Uh, did John not see my previous post back in January on this issue? By directing the speaker to fill out a speaker request form, he clearly, once again, violated the Brown Act by requiring a speaker to fill out the form. And, before he attempts to defend himself from the issue by saying she could decline to do so, he is reminded that an open government expert, Terry Francke said in an article from the Voice of OC,

“You don’t have to enforce what appears to be a mandate in order to chill persons from coming forward,” Francke, who is general counsel for Californians Aware and Voice of OC’s open government consultant, has said. “There’s no legitimate reason I can think of for requiring speakers to give their names.

“Doing so”, Francke went on to say, “is a violation of both the Brown Act and the First Amendment.”

So, how many times will we have to suffer the onerous behavior of the Gang of Three who clearly think they are above the law? Will it take a complaint to the FPPC or to the District Attorney? It is unfortunate that the most corrupt District Attorney in the State of California is so aligned with the Republican right that getting a violation of this sort investigated is a non-issue. Hopefully, if and when Todd Spitzer has quit playing County Supervisor and gets elected to the job he was really meant for, he will have the courage to investigate his own, even for seemingly minor violations such as this.