Canyon High Music Director Harold Witten accepted a pie in the face from the winner of a Golden Warrior marching band competition.
Court says this "illegal spot zoning" is permissible
By Tina Richards
A lower court ruling calling a multi-resident senior living facility slated for a single-family North Tustin neighborhood ”illegal spot zoning” was overturned by an appellate court, Jan. 13.
The proposed facility is slated for seven acres on Newport Blvd. owned by the Catholic Diocese of Orange. It falls under the purview of the North Tustin Specific Plan, which does not provide for multi-family residences on that parcel. The land has historically been zoned for a church or a school, neither of which the church has any interest in building there.
The Diocese partnered with Kisco Senior Living on the proposed age-qualified facility, and the county planning department and board of supervisors rewrote the NTSP to accommodate it. About 96 percent of the community opposed the development, calling its three-story facade “too tall” for the neighborhood that surrounds it and noting that commercial enterprises are not permitted north of 17th Street.
First round goes to FCA
The community was alarmed that its specific plan had been so quickly modified and disagreed with many of the development’s California Environmental Quality Act (CEQA) findings. The Foothill Communities Association (FCA) sued the developer and Orange County -- and won. Judge Gail Adler called the specific plan revisions “arbitrary and capricious illegal spot zoning.” She did not rule on the CEQA merits.
The developer appealed the decision, but the county dropped out of the proceedings under the urging of then-newly-elected Third District Supervisor Todd Spitzer.
While the appellate court agreed that the changes to the NTSP were indeed “spot zoning,” it found that they were not illegal. “Although the board’s [of supervisors] actions constituted spot zoning, the spot zoning was permissible” the court wrote. “The rezoning ordinance may be justified if a substantial public need exists.”
The court ruled that such a need had been identified by county supervisors. In deciding the case overall, the appellate judges were “deferential to the board.” That deference included a finding implying the board could change the North Tustin Specific Plan as it saw fit. “The plan did not constitute a contract entered into by the county; specific plans may be amended as often as deemed necessary by the legislative body.”
A changing planscape
Further, the court noted that while the NTSP zoning was appropriate when the document was created in 1982, “we find that the passage of more than 30 years, the development of the county and the changing needs of the people of the county (especially senior citizens) were proper for the board to consider in determining that the project site might be more appropriately rezoned for other uses.”
The merits of FCA’s legal challenge regarding CEQA issues have not yet been addressed by either court. By ruling that the project involved illegal spot zoning, the superior court effectively quashed the development and Judge Adler did not go further and examine the CEQA issues. Therefore, that part of the lawsuit was not part of the appellate court appeal. It has been referred back to the superior court.
“Pursuing this case is important to the community for the purpose of maintaining the integrity of the North Tustin Specific Plan,” FCA President Rick Nelson says. “Doing so will encourage land uses that were agreed to in the NTSP by the governmental, commercial and residential creators of the plan. The NTSP was intended to avoid piecemeal development that was not part of the comprehensive planning process. Such piecemeal approval is exactly what occurred with this high-density senior living facility.
“We’re looking at our options,” he adds. “This isn’t over yet.”
Planning Commission wrestles with East Orange
By Tina Richards
The public hearing on the Rio Santiago development slated for the 110-acre East Orange parcel known as Sully-Miller has been continued for a third time to Feb. 19 by the Orange Planning Commission, as it struggles to understand the nuances of a project one commissioner described as having “moving parts.”
The commission is tasked with making a recommendation to the Orange City Council whether to change long-held zoning designations and approve the project as it stands, or send the developer, Milan Capital/JMI Properties, back to the drawing board. The planned project -- 265 units of senior housing, 130 tract homes, a managed sports facility and 50 acres of open space surrounding Santiago Creek -- has been hotly contested by East Orange residents who note that it is counter to existing planning documents and is not an appropriate use of the property, which itself has a checkered past.
The parcel is currently zoned as “sand and gravel resource,” with 12 acres designated for single family homes. Four separate community, greenbelt and specific plans drawn up in the 1970s call for an open space designation to accommodate parks and recreation. Commissioners must weigh the merits of the developer’s plan, currently seen only in crisp artist’s renderings of meandering pathways, manicured houses, kids and horses, against the existing plans that were based on the area’s penchant for flooding, its proximity to a former landfill and its 100-year history as a mining, rock and asphalt crushing site.
Confounding the review process is an overall lack of project clarity made apparent by the commissioner’s questions to city staff and JMI consultant Ken Ryan. Several major components of the development are loosely defined; city staff has identified 22 unresolved issues that it wants the commission to “opine on;” and the Environmental Impact Report calls out eight elements of the project that will have “significant and unavoidable impacts” on the surrounding area.
Those impacts range from aesthetics to traffic to air quality to hydrology to light and glare. “Has the city ever approved a project with this many unavoidable impacts,” Commissioner Adrienne Gladson asked City Planner Chad Ortlieb. The answer was “no.”
The five member planning commission has been reduced to three as two of them, Bill Cathcart and Bill Steiner, recused themselves. Pat Buttress, Daniel Correa and Gladson have so far heard eight hours of presentations and public comments during two sessions on Jan. 13 and 20. More than 70 people spoke on the record (about three quarters opposed and one quarter in favor) and it wasn’t until late in the second meeting that commissioners began asking their own questions of city staff and the project applicant.
“This is complicated,” Gladson said. “We have a number of entitlements before us. I need the light of all information that tells me what this does in terms of impact to neighborhood plans and the city’s general plan.”
A football for Charlie Brown
And, as Commissioner Correa noted, there are the “moving parts” to contend with. Like the managed recreation complex. The YMCA wants to build an 81,000-sq.-ft facility and several sports fields on the west side of the property. As of now, it has no funding for such an endeavor and can’t be considered a sure thing. “You’re asking us to change the zoning for something that’s up in the air,” Pat Buttress pointed out. “This type of thing takes a great deal of money.”
Ken Ryan assured the panel if the Y doesn’t come through, the developer will find someone else.
Equally airborne are plans to turn management of the 50-acre Santiago Creek portion of the property over to a public agency or nonprofit. The City of Orange has declined; the county has not committed one way or the other. While the developer has not exhausted potential takers, it is not clear who would ultimately be responsible for creek side restoration, oversee public use of the area and ultimately be liable for flood damage.
Oversight of the creek and its surroundings was one of the 22 features city staff identified as “issue items.” Others included the building mass, density, on-site hazardous material, methane migration, private (vs. public) recreational amenities, street and trail standards, and parking code deviations. When Gladson asked about them, Ryan dismissed them as minor points that city staff and the development team had not yet come to terms on. “Twenty-two areas of disagreement?” she recounted. “That sounds like more than a simple disagreement to me.”
History lessons and liability
The majority of public speakers also voiced disagreement with the developer. Several cited the planning documents in place and asked the commission to respect them. Others noted that area streets were already overused and increased traffic from the project will produce near-gridlock. Many reiterated that Santiago Creek is known to flood and that the area is a dam inundation zone. “This has flooded in the past and will flood in your lifetime,” a longtime resident told the commission. “The developer will be long gone; who’s going to be liable for the damage?”
Supporters of the project spoke fervently about its promises – trails, a YMCA, senior housing – and noted that the proposed development would look better than the large mound of dirt that exists there now.
Since JMI purchased the land in 2006, it has been used as a dumping ground for dirt from construction sites. It is dusty, noisy from truck traffic and unsightly. Many East Orange residents believe JMI purposely created an eyesore so neighbors would welcome a well designed housing project.
“We didn’t do that,” Ken Ryan said. “We’re making money from it.” He also reported that “If this project doesn’t get approved, what’s going on today will continue.”
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