I hope everyone is having a great Martin Luther King Day. We are finally cooling off as the rest of the country embraces another round of freezing weather. It is days like this that remind me why I live in our town Tustin.
It seems the city and the US Army have finally come to an agreement on a property exchange. For more than a year, the city has been pestering the Feds to exchange their current real estate, next to the District Shopping Center, for another parcel located near Warner and Redhill. The idea, of course, is to allow the District to expand while keeping the Army Reserve Center within the confines of the city. Actually, I think the city council could care less about the Army but they do want to serve their masters at the District. Sales tax, after all, is the bread and butter of a city.
This works out for all parties as the Army was in the process of planning new facilities at the current reserve center. According to the staff report, those efforts will now be directed toward the new location. The Army has agreed to submit their plans for comment and to obtain grading permits. This should be interesting over the next few years to see what happens if the plans don’t conform to Elizabeth’s vision. The city has a habit of holding up the permit process when they don’t like what they see. The Army, on the other hand, has a habit of not caring about permits, etc.
Oh yeah, and the “no-cost” agreement includes $170,000 payment to the feds by the city for they cost of the transfer. They also have to make sure water and sewage are in place.
The rest of the agenda has the usual suspects. Along with the final discussion on the Army property swap, there are two other issues, including on between the city and the school district.
Staff are asking the one Public Hearing Item on a development agreement for a 375 home housing tract on the MCAS property be continued to next month due to legal issues. Expect this to be worked out and back on the agenda.
There is little on the Consent Calendar of real interest. However, it should be noted the staff are planning a bocce ball court at Peppertree Park. A great addition that I’m sure our senior will appreciate. But, why only two courts? Oh, and staff may want to revisit the proposed resolution as, according to that, the original intention was to establish a water play area.
Item 13 on the consent calendar is for a grant application for federal funding for parks related programs. The $260,000 grant can be used for virtually anything park related. Staff have already targeted Frontier Park for the bulk of the proceeds. This is one item that could probably use some discussion either now or when the grant is approved.
That’s it for this week’s Tustin City Council meeting. The year is starting off by cleaning up old issues. With an election year up for grabs and two city council seats up for grabs, lets hope it stays that way so our intrepid heroes can concentrate on the important stuff.
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.
We didn’t bother to post the agenda for the Planning Commission last week due to its brevity and lack of interest. The only item of note was an item on AT&T utility cabinets for servicing their U-Verse internet and cable-like system. It seems the city’s resolution of their video issues was short-lived as, a week later, the video is not up so we can’t report on the outcome. We’ll keep you posted.
Tuesday’s Tustin City Council meeting should be a bit more interesting with several items of interest, both on the Consent Calendar as well as the Regular Business Items.
Not much on the Closed Session for the City Attorney to report on even if there is any movement. There is one new item listed as existing litigation regarding the estate of an individual and the police department.
Police had previously declined to discuss the case publicly, stating potential litigation as the reason. TPD did have an encounter with the young man, nineteen year old Paul Quintanar, prior to the accident that took his life. No one has been charged in the incident.
There are also several continuing negotiations concerning MCAS property and swaps with both the TUSD and the US Army Reserve.
The Regular Meeting Agenda is headed by three presentations including one for outgoing Audit Commissioner Richard Hilde.
One glaring item on the Consent Calendar that may be pulled for discussion is Item 4, City Option to Retain or Delegate Authority for Award of Ambulance Contract. Currently, the city retains the authority and, judging from the issues the county is having with its ambulance services, it sounds like it might be a good idea for the city to retain that authority rather than delegate it to the County. The staff report indicates city staff feel the same way.
We’re not sure if Item 5, AB109 MOU on Realignement which would authorize a bank of overtime cash is just for purposes of obtaining what OC Supervisor Janet Nguyen calls, “free money”. AB109 involves the realignment of responsibilities of post-release supervision of prisoners to the community. Previously, most of this was handled by state parole agents. It is now handled almost exclusively by county probation officers.
In reading the agenda report for this item, we found the city has assigned a “Compliance Detective” to monitor the activities of released offenders. Of course, this is what the Orange County Probation Department, who has a full-time deputy probation officer assigned to Tustin, does. So, we’re not sure why the need for additional manpower in this area. We do recognize the detective also monitors sex and drug registrants, not a bad thing in our book.
Under Regular Business, city staff have finally answered all the questions the city council had when they last addressed a recommendation to appoint City Finance Director, Pamela Arends-King as the city’s Treasurer. As we’ve noted before, we endorse the idea of Arends-King being officially appointed to the position. We are opposed, however, to the hefty $8,000 increase in pay, particularly since the previous City Treasurer, George Jeffries, did the same job for half the amount.
The staff report indicates a savings to the General Fund and the Water Enterprise Fund of $19k but they provide no evidence, other than “because we said so”, of the savings. Where is the transparency to the public when calculating these so-called savings?
It seems Boss Tweed Parker is cementing his executive relationships at taxpayer cost.
Item 8, Business License Program, is a request by city staff to continue to use a questionable company to assist them in business license compliance. MAS, a company that has made a living off cities by making it a practice to offend the business owners, has a checkered history in collecting fees for errant businesses who have failed to obtain a license to operate in the city.
When the city first contracted with MAS to collect delinguent business license fees and taxes, we foretold the issues they would have. Businesses have reported harassment and unqualified accusaitons as they have been contacted by MAS representatives who have combed the city on a witch hunt for transgressors. The backlash to the city appears to be catching up with them as they back track on collections.
The proposed recommendation involves refunds and reassessments of the operations. What it should involve is a complete investigation into the business practices of the contractor to determine whether this is appropriate action for a city like Tustin, who purports to be business friendly, to be conducting.
To deflect attacks from the root problem, the staff report addresses the questions asked by the city council regarding business licensing for realtors. The city currently has a policy in place that seems adequate. Perhaps they should leave well enough alone and concentrate on MAS operations.
That’s it for this week’s meeting. We’ll try to keep you posted on any changes.
Conference with Legal Counsel –
Two items each Exposure to and Initiation of Litigation.
Existing Litigation – Marie Sales on Behalf of Paul J. Quintanar v. City of Tustin et al.
Confernence With Real Property Negotiators
MCAS properties, 14 lots, OC Property Company (Cushman Wakefield).
Price and Terms of Payment APN: 430-391-12, 430-391-09, and 430-391-03, Tustin Unified School District.
Property Address/Description 2345 Barranca Pkwy and 15 acres of the N/E corner of Red Hill Avenue and Warner Avenue – Army Reserve negotiating.
Regular Business Agenda
Item 4, City Option to Retain or Delegate Authority for Award of Ambulance Contnract.
Item 5, Master MOU Between City of Tustin and County of Orange for Public Safety Realignment and Post Release Community Supervision Authorized Expenditures.
Regular Business Items
Item 6, Approve Agreement with the City of Irvine, et al, to Fund the Peters Canyon Wash Channel Water Capture and Reuse Pipeline.
Item 7, Recommendation of the Finance Director’s Appointment as the City Treasurer.
Item 8, Business License Program.