It’s party time in Tustin. At least, the Tustin Planning Commission will be making a determination for another community facility in the Tustin Marketplace tonight during a public hearing.
Edwards Theaters recently vacated the building on the Tustin side of the Marketplace. The area, according to the staff report, is 23,000 square feet. The city decided we need a building in the area and has negotiated an agreement with the Irvine Company that will allow the building to be used for anything from staff meetings to quinceneras.
The agreement would also allow further development of the remaining area as well as eliminate fees the Irvine Company has chaged in the past for two other retail centers in the area.
We’re not sure whether the city actually needs another community center (to be called the “City of Tustin Community Center at the Marketplace”. We haven’t heard anyone from the east side of town complaining about a lack of facilities and, quite frankly, the city shouldn’t be in the business of creating and maintaining rental space.
That said, the amendment to the agreement does appear to make it easier for other retail areas to be developed. Fees charged are consistent with other facililties the city operates and the city will be given use of the the facility for community events without cost.
The only other item on the agenda is a second Public Hearing for a zone change and Conditional Use Permit. The parcel in question is the small respite park located on El Caminor Real south of Main Street. The parcel is owned by the citty and the front third of it has been used as a small park since 2007.
This park is a gem of Old Town and the only ones who should have any complaint, if any, would be the property owners on either side. One question that should be asked is, what will the city use the remaining 100 feet of land behind the park for? It seems odd the city wouldn’t find a use for it. We can think of at least one – a community garden that locals could grow vegetables in. Such use would be consistent with the respite park.
So, another exciting week in the City of Tustin. With the approval of the first public hearing, the city should have its hands full planning events for the new community center. It should be interesting to see what kind of events will find their way there.
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.
Although the agenda holds only 5 items, Tuiesday evening should be full for the Tustin Planning Commission.
The first item is a General Plan Conformity Determination for property offered by the Irvine Company in the Marketplace. According to the staff report, the parcel was originally offered to extend Myford Road south of El Camino Real behind the Tustin Auto Center. So far, it has been used as access and excess storage for the Center. Irvine Company proposes to deed the property to the city.
The first of two public hearings for Conditional Use Permits will be postponed at the applicant’s request. The property, located at 155 S. Myrtle Avenu in Old Town, was purchased earlier this year. It looks like the new owner may ask for some new construction. The staff report gives no indication of the type of construction requested. However, since it is in the vicinity of the Wilcox Manor where a 3 ring circus has recently been approved, it wouldn’t surprise us if the enterprising owner were to build a flop house for guests too inebriated to drive home. We won’t know for sure until December when the owner will ask to have the application heard.
The second CUP is for a change to the Master Sign Plan in the Tustin Marketplace. Say, didn’t they just recently change this to just, “The Marketplace”? The request will keep the flavor of the signage in place while enhancing patrons’ ability to more easily find the store of their choice. The modification would allow tenants to place their tower signs with fonts specific to their branding. Other changes include temporary event signage and string bulb lighting. The Irvine Company is also asking to place a larger-than-life directory sign near The Home Depot. According to the staff report, the new signage is designed to enhance, not change, the flavor of the shopping center.
Item 5, Summary of Projects, will probably take the lions share of time on Tuesday. That’s because there are 13 retail projects, along with a slew of infrastructure construction, to discuss. In reading the staff report on the projects, the city staff should be justifiably proud of the work they have accomplished. New businesses include two new hotels and a dozen restaurants and shops. Which Which, a new sandwich shop in the “Tustin” Marketplace was recently visited by the editor and his family. Everyone agreed that, while the sandwiches might be a bit pricey, they were delicious – especially when washed down with one of the best chocolate malts in town. The shop is not just a diner, it’s an adventure.
We have been excited to see the progress made on the Vintage Lady in Old Town. After burning down two years ago, the owner was able to save the facade of the building. A new building, designed by local architect, Nathan Menard, is being erected behind the facade. It will be interesting to see how a modern building interfaces with its historic past. Knowing Nathan, no one will know.
Of cousre, we did notice a few items missing from the summary. Most notably, nothing was said of the Wilcox Manor CUP. Perhaps staff thought the evening may drag on a bit long. At some point, you just have to say no.