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On The City Council Agenda – June 3, 2014

sex offender squadA tough issue facing the Tustin City Council Tuesday will be the repeal of the majority of its local sex offender ordinances. As you may have read, the California Appeals Court has struck down most local sex offender laws and both Irvine and Orange have repealed their ordinances. Tustin is following suit by repealing that part of the ordinance that prohibits sex offenders from entering city parks.

Don’t worry, your children are safe. The ordinances in question were rather far reaching and unnecessarily built upon state law which already effectively limited sex offenders from entering parks and schools without permission. At the time, the city jumped on the Republican bandwagon to enact mostly superfluous laws. The appeals court simply put the onus back on the state (where it should be) to enact appropriate laws and get rid of the checkerboard of (sometimes) confusing local ordinances. Police will still be able to do their job without the perceived rights violations that could potentially occur. Yup, I hate to say it, sex offenders have rights, too.

Tustin police will also be able to enforce the residency restrictions of state law as well.

Before tackling the regular business of the day, however, the city council will meet to discuss the proposed budget for  the coming fiscal year. This budget workshop will convene at 4 pm in city council chambers and the public is invited to comment and discuss the proposals. I am still looking through the documents myself. The summary gives a flat, conservative picture of the city’s approach to finance. At the outset, I would simply ask them to take a closer look at items they purchased out of the reserve fund last year and ensure like items are budgeted for. The reserve should stop being used as a slush fund for pet projects. You can see the proposed budget here.

Back under Regular Business, the city council will consider a proposal by the Community Development Department to increase the budget for a consultant by $100,000. The purpose is to develop a downtown commercial core plan. The council previously approved more than $60,000 for the study. In publishing the RFP, they apparently discovered consultants aren’t cheap.

We still believe the study could best be done by city planners with perhaps a minimum of outside help. Unfortunately, City Manager Jeff Parker and Community Development Director Elizabeth Binsack are intent on maintaining the Republican cant to privatization, even for projects where it is obvious city planners have an advantage.

The last item of Regular Business is one close to my own heart. Item 15, Consideration of Supporting Assembly Bill 1453 – Orange County Veterans Cemetery. Through the history of the El Toro and Tustin Marine air bases, our city has a long history of serving veterans. The closest veterans cemetery is Riverside National Cemetery near March Air Force Base.

Sharon Quirk-Silva’s Assembly Bill 1453 would authorize the construction of a state veterans cemetery in Orange County. The latest proposal would place a veterans cemetery on El Toro property, a situation faced by an unenthusiastic Irvine City Council who have gone as far as to hire a Feng Shiu consultant. Apparently, cemeteries are not consistent with a Feng Shui lifestyle.

Anyway, it took awhile but Tustin city fathers must have read my blog asking for support for Silva’s bill. Yes, this deserves discussion as to where it will be located. But, we owe it to our veterans to give them a final resting place in their own county.

Special Meeting – 4:00 pm

Workshop on proposed budget for fiscal year 2014-2015.

Closed Session – 5:30 pm

Conference with Legal Counsel – 2 items each of initiation and exposure to litigation

Liability Claim – Maria Teresa Dunn Clam No. 14-02

Conference with Real Property Negotiators – TUSD

Regular City Council Meeting – 7:00 pm


Student Government Day 2014 – Ethan Banks, Amy Coulter, Olivia Bancroft, Alison Greenberg

“Everyday Hero” – Jim Carson, Orangewood Children’s Foundation

Public Hearing

Annual Levying of Assessments – Tustin Landscape and Lighting District for Fiscal Year 2014-15

Consent Calendar

Review City Conflict of Interest Code – City Manager

Call for Election – November 4, 2014 – 2 council positions

Approve Grants of Easements Southern California Edison over portions of roadways and parcels of Tustin Legacy properties.

Regular Business

Request for Appropriation – Downtown Commercial Core Plan, Consutant fees and agreements. Additional funds requested.

Exclusive Sales Listing Agreement – CBRE Inc. for Tusting Legacy Area 4

Repeal of Sex Offender Ordinance – Repeals certain sections of city code to conform with recent court of appeals decisions.

Consideration for Support of Assembly Bill 1453 and Reaffirming Support for Proposition 13 – Resolutions to support Sharon Quirk-Silva’s proposal to establish a veterans cemetery in Orange County. Second resolution would reaffirm city support of Prop 13.

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.

Did the Planning Commission Violate the Brown Act?

Courtesy of Four ProvincesAs we reported on last week’s meeting of the Planning Commission, a tour of several areas of Tustin Legacy was made by the commissioners and some staff prior to the regular meeting. When the regular meeting of the planning commission convened, the tour was discussed briefly in general terms of how informative it was for commission members.

What was not mentioned was whether any business of the Commission was discussed. And, this is important because, whenever a majority of members of a local, publicly appointed or elected body convene for pretty much any reason, the meeting must be open to the public and the public must have an opportunity to be heard. This is true, even if no vote or action is taken. Now, you may be thinking, “It was a tour. What would they discuss?” They might be discussing their kid’s soccer game or school activities. But, what if they discussed zoning issues that might be coming up later that night? Or, what if they, as a group, decided Tustin Legacy should have different population densities than already approved?  What if they had discussed,  in camera, the entertainment permit for your restaurant? If these discussions, (with few exceptions) were held out of public view, our government might act very different toward the public. And, it is why we have open meeting laws.

Government Code 54950 to 54962, otherwise known as the Ralph M. Brown Act, governs meetings for local governments and local public agencies. Recently, Santa Ana was chastised for their failure to insure public access to their meetings. The Tustin City Council has policies in place to make sure the public’s concerns are heard for any matter in the council’s purview. We would like to think that city staff would insure city commissions are properly run as well.

The Planning Commission did notice the tour on the regular agenda published on the website. However, there was no accompanying agenda for the tour itself. We were not sure what mode of transportation the Commission used or if the public was invited to the tour. If they had been, would everyone have traveled together? Were there any reports or  writeups given to the tour group? We don’t know because the public was only told in an offhand manner that the tour would be conducted. This is not the first time I have discussed open meetings with the Planning Commission. Recently, they held a workshop in which issues pertaining to Old Town were discussed. There was apparently no video produced and it was weeks before minutes were placed on the city’s website. Fortunately, the city’s Public Information Officer, Lisa Woolery, previously assured me that minutes had been produced and would be available.

So, right after this tour occurred, I submitted a Public Information Request. Community Sevices Director, Elizabeth Binsack, called me on Friday to discuss the request. Essentially, she told me that the tour was noticed as required and it was open to the public. The Participants did, in fact, take a tour bus to the area. Accompanying the Commissioners on the tour were several city staff from Elizabeth’s department including, Dana Ogdon- Assistant Community Development Director, Justina Willkom-Principal Planner, Scott Reekstin- Senior Planner, David Kendig- City Attorney and Alex Rojas – TUSD — Assistant Superintendent. Knowing the rift between the city and the school district, Alex is a braver man than I. Elizabeth also advised:

As I indicated, we usually do one or two tours a year.  We will accommodate as many as we can on the bus.  It is on a first come first serve request.  This is why we place the approximate times for the designations on the Agenda so if those that cannot make it on the bus, want to follow or only want to go to a certain designation can do so.

I was also invited on the next tour which, according to Binsack, occure once or twice a year.

The agenda she provided was substantially different than the one that was posted on the city website and did, indeed, post the approximate times of all the stops. That was a cause for concern as I told our Community Development Director that there was no indication that the tour was public from the notice posted on the website. She agreed to look into it. In the packet of information she sent to me, there was a separate notice and agenda for the tour, a key factor in determining Brown Act violations. The agenda report provided to me consisted of a couple dozen photos, presumably of toured areas, and a recommendation to receive and file the report.

So, did a Brown Act violation occur? There were no separate minutes and a recording secretary did not attend the tour. However, it was plain from the material provided and the discussion Binsack and I had, that the tour was, indeed, open to the public on a first come first served basis on the tour bus. So, maybe some technical violation may have occured. We’ll leave it at that, for now, and see if they take our suggestions to heart.

Oh, and when I go on that next tour, I will be sure to bring my own caviar and water crackers. I wouldn’t want to be a burden on Tustin taxpayers.