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On The Planning Commission Agenda – January 14, 2014

Credit:  Norroen-Stjarna deviantart.com

Credit: Norroen-Stjarna deviantart.com

Out the gate for 2014, the Tustin City Planning Commission doesn’t have much on their plate for the actual meeting. Two public hearings, that I doubt will engender much discussion, head up the agenda. It is what happens before the regular meeting that may allow the Commissioners to earn their stipend this week.

Finally, We Can Agree On Something

It may be hard to believe but, the city of Tustin and the Tustin unified School District finally agree on something. Prior to the Planning Commission Meeting, the PC will meet as the Board of Appeals to hear an appeal from  the Irvine Company concerning school tax assessments.

The Irvine Company is building apartments on parts of the MCAS base and was sent a bill by the city regarding school fee assessments. The Tustin Building Official assessed the developer almost $2.3 million dollars for a multi-building apartment complex that includes in its square footage calculations, entry corridors and storage areas.
The Irvine Company inquired about the fee assessment and how the city went about calculating fees. Tustin responded by saying the fees were within statute and standard city practice:

The 2009 International Building Code defines a “Walkway, pedestrian” as providing “a connection between two buildings.” In addition, Section 1107A.23W of the 2010 California Building Code states that “a walkway is a surface pedestrian way, not contiguous to a street, used by the public.” The corridors proposed with the Legacy Villas development provide access to and egress from the proposed apartment units, are located within the perimeter of the exterior walls, and are not open to the atmosphere above. The listed exception for a walk or “walkway” is not the same as an interior corridor.

The city went on to say that statutory code allows them to interpret space for calculation purposes in accordance with their common practice. That is to say, they can do it pretty much the way they always have. To back that up, they gave an example of how they calculated the space with another apartment complex and, because the developers did not complain, it must have been right.

The Irvine Company fired back with an appeal, saying that the city was reading the statutes wrong. Essentially, the developer’s argument is that the interior corridors should be treated as “walkways” and that the city’s interpretation of the state code conflicts with the plain language intent:

“‘Assessable space,’ for this purpose, means all of the square footage within the perimeter of a residential structure, not including any carport, walkway, garage, overhang, patio, enclosed patio, detached accessory structure, or similar area.”

Essentially, the developer argues that the legislature, through statutory language, limits assessment to living space.

Irvine Company lawyers also attacked the question of the city’s determination of what is assessable through its “standard practice”. The developer states that the city belief that its standard practice” for determining assessment allows them to supersede state law when that part of the statute really only allows them to follow a standard practice in the application of their ministerial duties of collecting the assessments, not determining what can be assessed.

It is no surprise that Tustin Unified School District has weighed in on the matter, although we wonder why the Irvine Company asked them to.  In what in court would be called an “amicus brief”, the district chimed in saying the city is correct in their interpretation of the law. Laughably, the district chooses to determine the legislature’s  intent when they wrote the statute:

…the Company argues that the above-listed areas share the common attribute that they “are not areas people live in” therefore, the Legislature intended that all non-livable areas should be excluded from “assessable space.” This is incorrect. If that was truly the Legislature’s intent, it could have easily defined “assessable space” to mean the spaces people lived in. Instead, the Legislature listed specific areas to be excluded.

Well, it’s obvious the writer doesn’t read many legislative Bills when they are introduced. Much of the language coming from the California Senate is vague, usually in an effort to be all-inclusive. What winds up in the finished product is usually after multiple amendments in a further attempt at clarification (that usually fails).

Judging from the fact the current Planning Commission is made up of cronies of the Tustin City Council, you can bet that plenty of folks have put their heads together on this. Of the two primary issues at hand. Tustin’s “standard practice” as interpreted by the Irvine Company should be relatively simple to resolve. Unfortunately, it is this type of thinking, that state law can be superseded at the whim of the city, that often gets them in trouble. The Community Development Department has not had a good track record when opposition is mounted.

I would take no bets on the issue of interpreting “walkways”. The Irvine Company makes a good argument that, basically, only livable areas designed for actual occupation should be included in school fee calculations. When they are not backed by constituent passion (like gun control), legislators have a habit of ballparking issues in generalities, hoping the details will work themselves out. Sometimes that works, sometimes not. Tustin, for its part, has historically relied on their past practice or “standard practice”, as they call it here, to justify their actions. If anything, it should be an interesting fight. I am willing to bet this will wind up in court where the city is sure to spend tax dollars defending a questionable issue.

And the school district? Well, they had nothing to lose by chiming in on the city’s side. After all, it is in their best interest as they will reap the benefit of a successful action by Tustin. The difference is over $500,000 in school fees. That can buy a lot of iPads.

On the Agenda – December 3, 2013

Hidden Agenda ClipartWith 25 meetings, including those very special meetings where the public was not invited, the Tustin City Council is on the verge of calling it a wrap. I was about to bet my readers they would not hold a final meeting on December 18th but history shows this is the meeting they slap each other on the back for a job well done and pick each other (or mostly so) for mayor and mayor pro tem.

In the meantime, this week’s agenda starts off with the usual Closed Session Items. We notice that they have not apparently made much progress on any of these, particularly the issue with the Army Reserve Center swap that was a feature item in Regular Business exactly one year ago. At that time, the Army made it clear they were not interested in a swap and were quite happy with what they had. I guess everyone has their price. The city just hasn’t hit theirs yet.

Regular Business will start off with The American Legion Post 227 posting the colors. Their Color Guard, by the way, has won awards at The American Legion State Conventions in the past.

Under Public Hearing Items, the city will have the second reading and adoption of State Buildling Codes, a procedure that is mostly formality. As the city was having problems (again) with posting the video of the last meeting, I’m not sure if anyone even bothered to show up for this. In any case, staffers recommend passage.

The second item, is a routine funding for COPS. $100,000 is slated to be received by the department. No real changes to how the department intends to use the money for a Crime Analyst position and related software. Except for complaints by former councilmembers, most of us think the police department does a pretty good job of allocating resources where they are most needed.

Under Regular Business, the council will be asked to approve an amendment to the classification and compensation plans to award the Director of Finance, Pamela Arends-King, a whopping $8,000 raise for essentially doing what she has always done, manage the finances of the city. The staff are correct in their report that it will save the city money. But, considering the Finance Director was already probably checking the previous Treasurer’s work, did she really rate a raise, particularly when every other line staff took it in the short end during contract negotiations?

After the fiasco caused by the city’s use of a shady collection agency to catch business license scofflaws, the staff have come up with a proposed ordinance to exempt real estate agents from obtaining business licenses. The recommendation is to pass the ordinance on a single reading and be done with it. I guess they are hoping to sweep the whole issue under the rug.

The final issue at hand for our busy city council is to select the new mayor and mayor pro tem for the coming year. As usual, I have no doubt this years selections have been made and they do not Allan Bernstein, Scofflawinclude the sole female on the dais. That’s a shame because, out of all of the bodies on the city council, Beckie Gomez has proven to be the most level headed among the crew. But, intelligence and experience have no bearing here. The most likely candidate for Mayor is, of course, Chuck Puckett. Chuck has the experience although we suspect he will be about as effective as the current mayor in conducting city business to the betterment of our residents. At least Chuck returns our phone calls.

What we really have to worry about is that they will make the Podiatrist Councilman the Podiatrist Mayor pro tem. That would leave him as heir-apparent next year. That is a scary thought…

On the City Council Agenda – November 19, 2013

Hidden Agenda ClipartWe didn’t bother to post the agenda for the Planning Commission last week due to its brevity and lack of interest. The only item of note was an item on AT&T utility cabinets for servicing their U-Verse internet and cable-like system. It seems the city’s resolution of their video issues was short-lived as, a week later, the video is not up so we can’t report on the outcome. We’ll keep you posted.

Tuesday’s Tustin City Council meeting should be a bit more interesting with several items of interest, both on the Consent Calendar as well as the Regular Business Items.

Not much on the Closed Session for the City Attorney to report on even if there is any movement. There is one new item listed as existing litigation regarding the estate of an individual and the police department.

Police had previously declined to discuss the case publicly, stating potential litigation as the reason. TPD did have an encounter with the young man, nineteen year old Paul Quintanar, prior to the accident that took his life. No one has been charged in the incident.

There are also several continuing negotiations concerning MCAS property and swaps with both the TUSD and the US Army Reserve.

The Regular Meeting Agenda is headed by three presentations including one for outgoing Audit Commissioner Richard Hilde.

One glaring item on the Consent Calendar that may be pulled for discussion is Item 4, City Option to Retain or Delegate Authority for Award of Ambulance Contract. Currently, the city retains the authority and, judging from the issues the county is having with its ambulance services, it sounds like it might be a good idea for the city to retain that authority rather than delegate it to the County. The staff report indicates city staff feel the same way.

We’re not sure if Item 5, AB109 MOU on Realignement which would authorize a bank of overtime cash is just for purposes of obtaining what OC Supervisor Janet Nguyen calls, “free money”. AB109 involves the realignment of responsibilities of post-release supervision of prisoners to the community. Previously, most of this was handled by state parole agents. It is now handled almost exclusively by county probation officers.

In reading the agenda report for this item, we found the city has assigned a “Compliance Detective” to monitor the activities of released offenders. Of course, this is what the Orange County Probation Department, who has a full-time deputy probation officer assigned to Tustin, does. So, we’re not sure why the need for additional manpower in this area. We do recognize the detective also monitors sex and drug registrants, not a bad thing in our book.

Under Regular Business, city staff have finally answered all the questions the city council had when they last addressed a recommendation to appoint City Finance Director, Pamela Arends-King as the city’s Treasurer. As we’ve noted before, we endorse the idea of Arends-King being officially appointed to the position. We are opposed, however, to the hefty $8,000 increase in pay, particularly since the previous City Treasurer, George Jeffries, did the same job for half the amount.

The staff report indicates a savings to the General Fund and the Water Enterprise Fund of $19k but they provide no evidence, other than “because we said so”, of the savings. Where is the transparency to the public when calculating these so-called savings?

It seems Boss Tweed Parker is cementing his executive relationships at taxpayer cost.

Item 8, Business License Program, is a request by city staff to continue to use a questionable company to assist them in business license compliance. MAS, a company that has made a living off cities by making it a practice to offend the business owners, has a checkered history in collecting fees for errant businesses who have failed to obtain a license to operate in the city.

When the city first contracted with MAS to collect delinguent business license fees and taxes, we foretold the issues they would have. Businesses have reported harassment and unqualified accusaitons as they have been contacted by MAS representatives who have combed the city on a witch hunt for transgressors. The backlash to the city appears to be catching up with them as they back track on collections.

The proposed recommendation involves refunds and reassessments of the operations. What it should involve is a complete investigation into the business practices of the contractor to determine whether this is appropriate action for a city like Tustin, who purports to be business friendly, to be conducting.

To deflect attacks from the root problem, the staff report addresses the questions asked by the city council regarding business licensing for realtors. The city currently has a policy in place that seems adequate. Perhaps they should leave well enough alone and concentrate on MAS operations.

That’s it for this week’s meeting. We’ll try to keep you posted on any changes.

Closed Session

Conference with Legal Counsel

Two items each Exposure to and Initiation of Litigation.

Existing Litigation – Marie Sales on Behalf of Paul J. Quintanar v. City of Tustin et al.

Confernence With Real Property Negotiators

MCAS properties, 14 lots, OC Property Company (Cushman Wakefield).

Price and Terms of Payment APN: 430-391-12, 430-391-09, and 430-391-03, Tustin Unified School District.

Property Address/Description 2345 Barranca Pkwy and 15 acres of the N/E corner of Red Hill Avenue and Warner Avenue – Army Reserve negotiating.

Regular Business Agenda

Consent Calendar

Item 4, City Option to Retain or Delegate Authority for Award of Ambulance Contnract.

Item 5, Master MOU Between City of Tustin and County of Orange for Public Safety Realignment and Post Release Community Supervision Authorized Expenditures.

Regular Business Items

Item 6, Approve Agreement with the City of Irvine, et al, to Fund the Peters Canyon Wash Channel Water Capture and Reuse Pipeline.

Item 7, Recommendation of the Finance Director’s Appointment as the City Treasurer.

Item 8, Business License Program.

Amante & Songstad Still Remembered For Ethics Breach

Where-Are-They-Now with AmanteIn the category of “where are they and what are they doing now”, my friend Omar Masry from the hinterland of NoCal, sent me a link to an interesting LA Times article.

Awhile back, we wrote an article on an Orange County Grand Jury report titled, “The Use of Government Influence on Private Education Institution“.  The report alleged that then Tustin City Councilman Jerry Amante and Laguna Niguel City Councilman Alan Songstad misused their positions as elected officials to unduly influence and discredit a report on city manager compensation authored by a couple of students at Brandman University.

When the report was issued, it was lauded by OC Supervisor, Shawn Nelson who honored the two authors, Cindy Smith and Janet Voshall, for their integrity and for bringing to light the incredibly high salary of high ranking government officials. The report became even more significant when the Bell scandal, outlining heavy corruption by that city’s highest ranking officials, became news.

Unfortunately, it also brought heavy fallout to Fred Smoller, the founder and head of the Public Administration Program at Brandman as well as the authors of the original report. According to the LA Times article, Smith and Voshall had to leave Orange County to find work. Smoller also wound up resigning from the program he founded:

Fred Smoller, who founded the master’s program in public administration at Brandman, accused college leaders of buckling to pressure from conservative local politicians and trampling academic freedom.

“The resignation was the only way I could draw attention to the backdoor politicking that threatened the independence and academic integrity of the MPA program,” Smoller said.

And, although Smoller remains at Chapman University (Chapman, Brandman, what’s the dif?) he has lost faith in the program he founded.

Cindy Smith summed it up when she said, “The Good Old Boys Club is alive and well.”

Jerry Amante should know. His efforts to establish a corrupt legacy of influence in the city of Tustin are well documented. Amante, for his part, claimed he and Songstad did not try to influence anyone. He claimed the grand jury report was inflated and incorrect.  There was  no influence put upon school officials. At one point, he slammed the grand jury saying that James Doti, Songstad and he were the only ones in the room (remember, the smartest guys in the room) and they were the only ones who knew what was said.

But that is not the indication from Songstad who, according to the report, said they did, in fact, discuss the issue with James Doti and made what the grand jury later construed as veiled threats to not hire any students from Brandman. Well, we know of at least two who have not been hired.

Fred Smoller, for his part, defended the students actions. He also refused to buckle under pressure to release their email addresses and phone numbers to Laguna Hills City Manager, Bruce Channing, then the highest paid (and apparently most angry) city manager in Orange County. Channing did get one thing: Smoller agreed the title page should not carry the institution’s brand and that was subsequently changed.

Remember the League of California Cities? They are one of the chief lobbying and quasi-governmental entities that really run the government. In essence, it’s a club for local politicians where the makers and shakers throughout the state decide in unison what’s best for us. Amante and Songstad, as members of the club, asked the League to respond to the report. Shortly after the League refused, Orange County broke away from the League and formed a separate good-old-boys club known as the Association of California Cities-Orange County. Yup, that’s right. When the conservatives couldn’t get their way, they stamped their feet and took their ball home, leaving Orange County with even less influence  in Sacramento than it had before.

We’d like to get Amante’s side of the story but, according to the Times story, he isn’t answering the phone these days. I doubt any of the other players are either.

Alas, we may never know whether lies or truth came out in the Grand Jury investigation. A lawyer hired by Fred Smoller was unsuccessful in getting the transcripts of grand jury session released to the public. The lawyer who headed the investgation for the grand jury stamped the report “particularly sensitive”.

Barbara Kogerman, the one who commissioned the report to begin with is now Mayor of Laguna Hills. During the investigation, she had been accused of making the report a campaign piece. Perhaps so. But, it was also a factual piece of information that should have been brought before the public long ago when the city manager’s office stopped being about public service and began being sold to the highest bidder.

So, where are they? According to the Times article, Cindy Smith is selling insurance in Phoenix, Voshall works for the United Nations and Smoller is at Chapman University hoping to start another public administration program. All of them have found a higher calling. Talk about a blessing in disguise.