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The Saga Continues

Photo courtesy of Four Provinces Photography

The Fairbanks family, their lawyer and a small band of supporters attended the continued hearing on their property today. The hearing was officiated by Hearing Officer Greg Palmer.

Most of the more than 6 hours of testimony taken was dominated by Building Official, Henry Huang. The Fairbanks family attorney questioned Huang about notices, orders and the list of corrections sent to Fairbanks. Also discussed were the Notice of Violation and building codes in general.

At one point, Boss Tweed Amante showed up. From reports he sat quietly, watching the proceedings. Amante, as you will recall, instigated the whole issue regarding the Fairbanks property in Old Town, when he appealed the Planning Commission decision to the City Council. When the City Council upheld the Planning Commission’s original order, Amante had his talking head, Elizabeth Binzack, Director of Community Development and the head of the building and planning departments for the city, red tag the apartments which forced the residents to immediately move out. Cited were safety issues that pertain to the modern building code rather than the California Historical Building Code that should prevail in this case.

The matter has been continued, once again, to September 22, 2011. The location is to be announced. Hopefully, they will move it to the council chambers where the hearing can be recorded and televised via the city’s website feed. In any case, we will keep you posted on the progress, or lack thereof, for the Fairbanks. As always, we wish them good luck in this matter.

City Ups the Ante

I woke up this Saturday morning to peruse my overnight Facebook and Twitter feeds and found this little tidbit on the the City of Tustin Facebook Page

Tustin is concerned that the residents of Columbus Grove have not been informed by TUSD of the Heritage facility change so we mailed this informational piece. Instead of opening the elementary school that the residents are paying for, TUSD has moved Hillview Continuation School to the site to make room for Tennis Courts at Foothill. TUSD admits they don’t know how long Hillview will remain and do not have a new site identified. Residents, contact to be added to the informational update list.

Columbus Grove MailerIt was accompanied by a slick pamphlet mailer that outlined the city’s position in the most current lawsuit they have filed against Tustin Unified School District. This is the second lawsuit in as many years between the city and the district. According to the mailer, the city was “forced to file a lawsuit against TUSD fo defend the rights of our citizens to have the school they are paying for.”  According to the city Public Information Officer, the mailer was only mailed to the residents of Columbus Square, which is one of the tracts on the old MCAS. The residents there pay a Mello-Roos tax that funds the school and some infrastructure in the area (We are still waiting to hear from her on the cost of the mailer to the taxpayer).

In the meantime, housing went into a slump, the master developer for the base property pulled out when they could not see a near future profit and the city took over the job of master developer, hoping to market smaller sections of the land and make some other adjustments that would make it easier for developers to build and sell. It is too early to tell if this was a smart move by the city or just another power grab by the council majority. Councilmember Deborah Gavello was the only member to vote against the city acting as master developer. She has not answered any inquiries from us concerning this matter (or any other, in fact).

The mailer appears to be an early move by the city to position itself favorably. Judging from the bad press from the other ongoing lawsuit between the city and TUSD, this is probably a wise move. However, the mailer exaggerates a few of its complaints against TUSD and does not fully explain the entire situation. For example, the mailer fails to explain the TUSD claim that Hillview would have opened with only 78 students rather than the 300-350 it claims it needs to make the school viable. It also alludes that TUSD could have spent the money on building permanent buildings at existing schools that now house classes in portable schoolrooms. That is incorrect, according to the district. TUSD received federal funding and other considerations that required them to build Heritage or return the funding. Knowing that the “historic recession” (we would put that another way) would not last forever and that construction would eventually restart at the former base, TUSD chose to go ahead with construction of schools to eventually serve the area.

Tustin projects over 200 Hillview students and teachers will be driving to the site each day, impacting local traffic and parking as the parking lot can only accommodate 130 vehicles. TUSD argues that, based on experience, most of the students at Hillview do not or will not drive or park at Heritage. So far, that seems to be the case as the new school session opened this week and the parking lot appeared not to be impacted. And 200 people driving to and from the school each day is hardly a traffic concern around here.

The real issue is whether you believe the city’s justification for the lawsuit when it says, “Meanwhile, the Hillview Continuation School site will be converted into tennis courts for North Tustin and Foothill High School.” TUSD has stated emphatically that, while tennis courts are part of the plan, it has no intention of tearing down Hillview and instead will be renovating the site. Once renovations are complete, it will again use Hillview for its intended purpose. The district further states that, once construction begins on the base again, it will reopen Hillview for its intended purpose as an elementary school.

The city may have a point. TUSD has changed the wording it uses when referring to the temporary use of Heritage. In the beginning, TUSD said that the maximum time it would use Heritage for alternative purposes would be two years. It is now saying that it will be used “temporarily” without stating a maximum time frame. On their Facebook page, the City of Tustin also alleges a former school superintendent told the city 3 years ago that the plan was to use Heritage as a replacement continuation school all along. Of course, if that is the case, why didn’t the city say something then? The residents of Columbus Square have a valid complaint if they are paying for a school that will not be used for its intended purpose even if near projected attendance increases to the levels the school district says it needs to support the school.

In the meantime, the taxpayer is on the hook for another lawsuit between sovereign entities. The taxpayer is paying for both sides of this argument in legal fees and costs. Tustin can claim TUSD must comply with city requirements for grading permits and other fees. They can even, as they appear to be doing, change their ordinance that previously exempted the school district from obtaining permits from the city for construction.Tustin is relying on California Government Code section 53097 as the basis for the argument. Section 53097 requires a school district to comply with “…any city or county regulation” regarding the review of grading plans. It does not require compliance with city and county regulations regarding the actual grading, however. Section 53097 also lets the city and county off the hook should the school district refuse to comply with any of their regulations as it holds the city harmless for any damage done. This is the argument that TUSD has used all along. If that is the case, there is probably a preemption issue that will be sorted out by the courts. By the way, TUSD has been very forthcoming about the entire issue concerning this lawsuit and the lawsuit over grading permits. You can find most of their side of this story here. The most current press release regarding the Heritage lawsuit can be found here. Tustin says TUSD has been uncooperative and uncommunicative, TUSD says the same of the city. Judging from the documentation presented by both sides, we lean toward TUSD.

This bare-knuckle fight between the City of Tustin and the Tustin Unified School District has gone on for too long. It is time for both sides to stop the rhetoric and sit down at the table to resolve their differences. State mediators and arbitrators are available that can help resolve the issues at hand. Unfortunately, this is starting to feel like another power grab by Mayor Jerry Amante. He was fuming when he found out the city had an ordinance exempting the school district from obtaining permits. So much so that he introduced  an  “emergency” ordinance to change that. Fortunately, the rest of the council did not buy into Jerry’s version of “emergency”. Unfortunately, the ordinance  revision was eventually approved as a regular measure. But, as we said before, there is probably a state preemption that will take precedence.

With all this fighting between the city and the school district, it seems strange to read one item on the City of Tustin website that says, “Tustin Loves Schools“.

Update on Old Town

Update on Old Town: Bret Fairbanks’ hearing was held yesterday at the Tustin Library. After six hours of discussion , it was continued to September 9, 2011. Please support Bret and his family in this matter. We will keep you posted as soon as there is something to report. Here is a complete report from the Register.

“It’s Old Town, Elizabeth”

“It’s Chinatown, Jake.” It’s a great punchline from a well known Jack Nicholson classic. And, just like that great movie, this tale encompasses dark individuals and shadowy connections in government. Most readers are familiar with the Fairbanks property, a private residence built circa 1929 in Old Town Tustin.  Bret Fairbanks has been trying to sell his property, consisting of a main building and 2 apartments, because his family has outgrown the main house. Last year, he approached the city and asked for a letter, requested by a potential buyer, that would state the apartments located on the property could be rebuilt should they burn down. Of course, it had to go before the Planning Commission. So, the city staffers went to work.

In December of last year, the Planning Commission determined that some staff recommendations were unnecessary and deleted them from the proposed resolution making the Fairbanks property a non-conforming rental unit. Not exactly accurate, but close enough. After some back and forth between the commission, the city attorney and Fairbanks, the resolution was passed, 4-0. Case closed, done deal.Fairbanks had some work to do to bring the properties up to the safety standard that the Planning Commission set and everything looked like a go.

Well, not exactly.

Fast forward to the February 15, 2011 meeting of the City Council. Mayor Jerry Amante decides he doesn’t like the Planning Commission’s actions regarding Fairbank’s property and appeals to the city council where he holds the majority (usually). The item was put on hold until March 1st, at the Fairbank’s request, presumably to prepare for the appeal by the Mayor. At that meeting, Jerry’s talking head in the Community Development Department, Elizabeth Binsack, stated that the city decided, even though the Planning Commission approved the structures on the property largely because of their historical significance, that they were just wrong. Plain wrong. Elizabeth and her staff, probably prodded by Jerry, decided that the Planning Commission, which the mayor and council appoint, was in error and the resolution allowing for the non-conforming property should be withdrawn. Essentially, she argued that non-conforming structures need to conform to code or their use could not be waived. Yes, you heard right. She essentially demanded that the resolution be withdrawn because the structures do not conform to the modern building code. We already knew that, Elizabeth. Never mind that the structures involved are historical in nature and never mind that most, if not all, homes in Old Town Tustin do not have any ascertainable permitting and are probably out of sync with the modern building code. She decided it was wrong and so it must be wrong. Of course, after a three hour debate, where the Fairbanks and their attorney presented information on the historical nature of the structures and offered to comply with the original resolution, the council -in a rare vote against Boss Tweed Amante- decided to affirm the Planning Commission’s resolution. Good deal. Done deal.

Not quite.

On March 15th, Amante brought out letters, affidavits and stones written with blood stating that, in an apparent conspiracy plot he uncovered against him and the city, everyone has been lying about this property and that the apartments, built by a former Tustin building official by the way, should not be permitted non-conforming or otherwise. In that meeting, it was clear that Amante was upset that he had been opposed and was out for revenge, regardless of the cost to Fairbanks or the rest of Old Town. Doing the bidding of her boss, Binsack continued to back him up. After his tirade against the Fairbanks property was over, the vote was taken to uphold the appeal and, of course, failed. He did gain another vote when his hit man, Mayor pro tem John Nielsen,  changed coats and sided with him. Fortunately, cooler heads prevailed and the appeal was again denied. Great. Now the Fairbanks could move forward.

Except that the building department, at the Talking Head’s behest, red tagged the buildings.

Bret Fairbanks and his family have been working diligently to resolve the issues concerning the apartments. By the way, these “apartments” are far from luxurious. Speaking with Bret’s dad a few weeks ago, he said the apartments are between 300 and 400 square feet. In some homes, that would be a closet. In any case, they have, up to now, been a minor asset to the property and a significant  charm to this Old Town residence. At one point during the most recent Planning Commission Special Meeting on July 26th, Bret stood in exasperation before the Commission and stated that all he ever wanted to do was to comply with the order of the Commission and get his letter so he could sell his property. He has, essentially, complied with all requirements but the issue appears to be that the city insists on using the modern building code instead of the California Historical Building Code, which should prevail as there is no doubt that this building and the apartments in question are historically protected. The property, including all of its buildings is listed on the Historical Registry.  But, instead of working with Fairbanks to preserve this great property, the city has worked diligently to thwart him at every turn. At one point he said he was out of money because of the city’s bloodletting.

This is our city and the hardhearted, unfeeling and, apparently ignorant Community Development Department, led by Binsack, who are working against the very essence that is Tustin. Old Town used to have a conservancy that worked for both the city and the citizens who chose to live in the Old Town area. Of course, the city council could not have anything standing in the way of their “vision” for the city as a whole. The mayor and council control the Planning Commission membership (but, fortunately, not how they think).  Anyone who has ever dealt with the Community Development Department (as I have) knows they can be charming while putting a gun to your head. The code enforcement believes they have a right to trample your property at will anytime they see fit if they even think a nail is out of place. If the Planning Department invites you to a meeting, my advice is to take your lawyer with you. And guess what? Your conservative mayor, who should be standing for limited government, backs them all to the hilt. Could it be because he has a real estate background? Could it be because his failed Assembly run leaves him few other career choices after leaving office? This is all the more reason why this mayor, who touts fiscal responsibility but squanders money on lawsuits against the school district and micromanages the building department, should be recalled. As the Recall Amante folks say, “How long can we afford this mayor?”

Bret Fairbanks has another hearing on this matter on August 30, 2011 at 10 a.m. in the large conference room at the Tustin Library. Let’s all wish the Fairbanks family and their supporters luck with this. I hope that in the update I provide after the hearing, I will have good news to report. In the meantime, maybe someone can whisper in Elizabeth’s ear, “It’s Old Town, Elizabeth.”