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On The Planning Commission Agenda – January 14, 2014

Credit:  Norroen-Stjarna

Credit: Norroen-Stjarna

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 Tuesday, September 20, 2011

Looking over the agenda for the Tustin City Council this Tuesday are several items of interest. Of course, the first thing on the agenda is the closed session. Prior to that session, the public is allowed to comment on any items the council will discuss in private. Two items of concern for every Tustinite are the pair of lawsuits pending between TUSD and the City. If nothing else, members of the community should comment on the waste of money by Tammany Hall Tustin on these two lawsuits. The City has spent a small fortune on litigation that serves no purpose but to drive a wedge between the city and the district.

A public hearing will be held regarding the JAG Grant. The police department is asking to use the grant to combat methamphetamine (no, we don’t have a meth problem in Tustin) and for related equipment. A great idea. We recommend the city council approve the grant.

One item we should be concerned about is the proposed double-dipping of Christine Shingleton. It is Item #10 under Regular Business. Shingleton currently works full-time as the Assistant City Manager. According to accompanying documents, she plans to retire effective at the end of the year. Apparently, the city has not heard of succession planning and they intend to rehire Shingleton in the newly created position of “Assistant Executive Director”, a new title for a job with much the same job responsibilities she had as Assistant City Manager. The alleged reason for hiring her back immediately is that she is the only one (we’ve heard this before) with expertise in the Redevelopment Agency with regards to MCAS property. One question we have, of course, is why not hire a new assistant CM and have Shingleton bring them up to speed before she retires? Why the creation of a new position?  The answer, of course, is obvious. Shingleton will receive her pension along with a nice salary that could reach $105,000 per year plus minor benefits. That’s not cheap at any rate. Of course, the staff report states that there is no increase in cost, indicating that her current pay and benefits already exceeds the proposed “part-time” pay.

So, we looked into it and found that Shingleton is at the top of her pay scale and receives $180,987 per year in base pay. That is about $87.00 an hour. She also receives a car allowance, health and pension benefits that boost her total compensation to over $230,897 or, about $111.00 per hour. That is not really out of the ballpark for a good assistant city manager, which we assume Christine is. But, instead of using the base pay amount to calculate her double dip in January, the city chose to include total compensation. So, she will continue to effectively receive the cash equivalent of a car allowance, health benefits and pension payment benefits even though PERS should be paying for her healthcare after she retires. That means she pockets the money and, in anyone’s book, that is a raise along with a nice, new executive title.

And, what about when they finally hire a replacement assistant city manager (or a city manager, for that matter)? There is every indication this is an open-ended contract and that Shingleton could continue to serve endlessly, albeit for only 960 hours a year, at the council’s pleasure. We are not accusing anyone specifically around city hall but there is a definite smell of cronyism in the air. And anyone who says this is cost neutral goes to the City of Bell school of accounting. This is one item the council should take a close look at. When I contacted one member of the council, they said they could not discuss an agendized item but that it was “all good”. That indicates to me that this is a done deal unless some citizen stands up and questions what appears to be a common practice for well-liked retiring employees.