The Tustin City Planning Commission has a busy night with two meetings ahead of them on Tuesday, January 28th. Prior to meeting as the planning commission, they will come together next door to their usual meeting place of the city council chambers, in the Clifton C. Miller Community Center. This will be to act as the Building Board of Appeals for one item. That meeting begins at 6 pm with a Closed Session preceding at 4:30 pm.
That item is the Irvine Company’s appeal from the school fee calculation for property they are developing on the MCAS property. At issue is whether the city may collect fees using what the city calls the Building Division’s standard practice in determining accessible space. The Irvine Company alleges the method the city uses is in direct conflict with state law and that state law supersedes the city’s standard practice.
I would like to say they will be able to work out their differences. However, prior to the meeting is a Closed Session listed only as “Exposure to Litigation – One Case”. I am betting the exposure will be a direct result of the expected determination of the Board of Appeals. Hopefully, they can work out their differences without spending another million dollars on fantasy law. We would suggest the commissioners get their advice from someone other than the City Attorney, who has previously shown his ineptness at advising the city council on legal matters.
The Agenda allows for a one hour meeting prior to the start of the regular Planning Commission meeting, which will take place in the city council chambers as usual.
The regular Planning Commission meeting will host three public hearings as well as two items of regular business, all of which may generate considerable discussion.
Items 2 & 4, Appeal of Denial of Massage Establishment Application – Tustin Day Spa and Le Petite Spa are both related issues. According to the staff reports, the applicants for the permits were the targets of undercover operations at the same addresses that resulted in several “masseuses” being arrested for prostitution. The establishments they were operating in were shut down as a result of the investigations.
It didn’t take much detective work by observant city employees and the police department to determine the applicants were directly involced with the owners of the previously shuttered businesses, attempting to re-open in the same locations with, basically, the same operation.
The Community Development Department is recommending the Planning Commission uphold the denial. We’re no fans of these types of establishments for the obvious reason they take advantage of the women that work there as well as patrons, leaving this less than a victimless crime – allegedly, of course.
We can’t argue with Item Number 2, Conditional Use Permit & Design Review for a wireless cellphone tower masquerading as a eucalyptus tree. The 55 foot Verizon Wireless tower will be located in a business-industrial complex off Jamboree Road and should not present problems for businesses in the area.
Under Regular Business, there may be some discussion regarding Item 5, Design Review – AT&T Utility Cabinets.
The design review is for 25 above-ground utility cabinets located mostly on public rights-of-way throughout Tustin to house and operate equipment for their U-Verse service. The city owns most of the proposed locations.
City staff are proposing three options for the Planning Commission. The first is to adopt a resolution authorizing the installation of the 25 cabinets as a combination of above and underground cabinets.
The second option would allow the 25 cabinets, but all of them would have to be underground. The third option would deny the application altogether. It’s doubtful this option would be taken by the commissioners as AT&T has invested heavily in their infrastructure in the city and would probably not be averse to litigation. Likewise, the city council, to which this would be appealed next, has demonstrated that they are not interested in defending any concerns of Tustin residents when it comes to dealing with the utility companies, regardless of the legitimacy of their reasoning.That leaves the two remaining options or another one determined by the Planning Commission. The only saving grace is that city staff are also not in favor of the project as proposed by AT&T.
According to the staff report, AT&T originally submitted a master plan for upgrading existing and installation of new utility cabinets back in 2007. That design review was denied. AT&T did not move forward with the project again until late last year when another design review was submitted. Commission concerns included AT&T’s opposition to co-locating equipment (sound familiar?) and so-called art/screening of the utility cabinets.
There is no doubt the equipment is or soon will become necessary to effect AT&T internet service in Tustin. I spoke with a representative today and confirmed that, eventually, DSL service will be terminated as newer, state-of-the-art, technology takes its place. And, AT&T’s U-verse entertainment service appears to have all the best parts of cable and satellite TV without the exposed cables we in Old Town Tustin have come to know and hate.The city’s genuine concern over ADA, safety and aesthetic issues, however, may take a back seat to AT&Ts possible threat of litigation. That being the case, it would be a good idea to come up with a workable compromise.
That’s it for the meeting(s) this week. We will keep you informed of anything worth reporting. Now that we ordered our upgrade to U-verse service (hey, we were on the phone with them anyway), it should make it easier to download those lengthy videos.
The city of Tustin is looking for a few good people to serve on various commissions.
Two seats on the Planning Commission are available due to term expirations. Selected applicants will serve for two years. Jeff Thompson and Wisam “Sam” Altowaiji terms expire March 1st.
Thompson is a longtime member of the Planning Commission who has extensive experience in planning and construction. Jeff lives in Old Town Tustin but has not always sided with Old Town residents. When he feels squeezed, as he did with the Wilcox debacle, he chose to sit out on the proceedings even though he was qualified to vote.
Altowaiji is the new kid on the block… sort of. Sam worked for the city (and for Elizabeth Binsack) until he retired last year. He immediately sought appointment to the Planning Commission and was accepted by the good ol’ boys on the city council. An insider, he has not held any controversial positions on issues and always votes in lockstep with the city staff recommendations.
The Planning Commission meets twice a month in city council chambers and compensation is $150 per meeting. I have heard of two qualified candidates that are considering applying. If they do, we will let you know our opinion (we like them both).
There are also two vacancies on the Community Services Commission due to term vacancies. Both Chairman Ken Henderson and Amy Nakamoto have expiring terms. The Commission meets at 6:00 p.m. on the third Wednesday of each month and serves as an advisory body on recreation, parks, park design, facilities, and programs in Tustin. Compensation is $100.00 per meeting. Applicants are required to be residents and registered voters in the City of Tustin.
On the Audit Commission, R. Lawrence Friend and Gregory Moore have expiring terms. Terms on the Audit Commission are four years and the stipend is $100 per meeting. Commissioners meet 5 times a year and have recently added duties overseeing the city investments.
Applicants must be registered to vote in the Tustin area but, unlike the other to commissions, up to two of the commissioners may be residents within the Tustin Water District but not necessarily the city itself.
Applications must be submitted no later than January 29, 2014 at the close of the business day. You can find the application and further information here. Applications can be submitted in person or emailed to the city clerk’s office at email@example.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.
As with the past few meetings of the Tustin City Council, the topic of business licenses will take up a good portion of what should be the last meeting of the year.
The city council will be asked to decide if and how information related to gross receipts are received by the city. Gross receipts are used in many businesses to calculate the business license fees. Currently, businesses are required to offer proof of gross receipts in the form of a redacted tax return that protects any personal information from being disseminated through public records access. The average fee is $60.00
One of the proposals is to establish a flat fee of $100 for a business license. This would eliminate the requirement to supply tax information altogether and, on its face, appears to be a good alternative.
The third option, which I am sure Councilman Nielsen prefers, is to rely on the good word of the business owner to simply state how much his or her gross receipts are. The staff report points out the glaring problem with this alternative. Obviously, it would require a periodic audit to ensure businesses are telling the truth.
Nielsen, of course, would prefer this method because he is all for anything that protects businesses from the prying eyes of government. By doing so, he proves allegiance to his patrons at the various business councils and real estate associations that have funneled tens thousands of dollars through sham PACs into his and his fellow councilmens’ campaign coffers.
In reality, it is probably time the city looked at raising rates anyway. In the recent past, the city has foregone license and new construction fees to foster a business climate. I suspect most cities in Orange County have moved or are moving toward a modification in fees to increase funds coming into the city coffers. Making everyone pay the same fee, regardless of the value of the business, though, seems a bit unfair. The old system has worked fine and it seems Nielsen is the only one to complain.
In other business, the city council will be asked to approve the publication and appointment (or re-appointment) process for several city commissions seats. Seats open include 2 each on the Planning, Community Services and Audit Commissions.
Both Jeff Thompson and rookie commissioner Sam Altowaiji seats are up this term. I would be surprised if either were to leave now. Jeff is the old salt on the commission, having served several terms. Jeff has a history of community service including Chair of the OCTA Citizens Advisory Committee which advises OCTA on transportation issues.
Altowaiji, who worked for the city before he joined the board, is likely Elizabeth Binsack’s eyes and ears on the commission. However, he was also the only person to run (the only other guy was disqualified) and could potentially be unseated by another (any other) qualified candidate. We have one in mind but he is keeping mum on whether he will run for a seat..
The final item under regular business is consideration of an ordinance establishing a formal purchasing process, something that is long overdue in a city the size of Tustin. Not that we are accusing anyone of misfeasance. On the contrary, city staff, other than the occassional bonehead move by a department head, are pretty thrifty with our dollars. A formalized purchasing process will keep it that way.
That’s it for city council business this week and for this year (unless someone calls a “special” meeting). The next time the city council meets, it will be to ring in the new year. We hope the Christmas Spirit envelopes the dais (except for the Podiatrist Councilman – a belated Happy Channukah) and they all come back with a sense of renewed community spirit.