January 2018

By Tina Richards

 Third District Supervisor Todd Spitzer, holding three aces, folded to approve a contested zone change on a Cowan Heights property and certify the Environmental Impact Report (EIR). The approvals  enable a 21-home development to be built, despite local concerns about parking, defensible fire space and lot size.

Spitzer, whose district includes the six-acre parcel on Newport Avenue, was given deference on the requested zone change by his colleagues at the Dec. 12 Board of Supervisors meeting.  Usually willing to go above and beyond to protect the best interests of unincorporated North Tustin, this time the supervisor conceded to the needs of developer Steve Sheldon.  His colleagues, Andrew Do, Shawn Nelson and Lisa Bartlett (Michelle Steel was absent), were, however, prepared to postpone the decision until some of the issues raised by residents and their attorney, John McClendon, could be ironed out.

Cowan Heights residents have opposed the zone change since it was first introduced almost two years ago.  The property is currently zoned for residences with 20,000-sq.-ft. lots, which is consistent with the existing community.  Neighbors have argued that the existing zoning is in place for a reason, that a development with smaller lots will be incompatible with Cowan Heights, that speeding traffic on Newport Avenue will create an unsafe condition at the project’s single access point, and that wall-to-wall housing will undermine the street’s status as a scenic thoroughfare.

The roar of the crowd
Residents showed up in force when the North Tustin Advisory Committee heard the issue in December 2016.  The committee, which advises the county on local land use, had previously rejected a seven-unit development on the same parcel, and voted unanimously to deny developer Steve Sheldon’s request for three times that number.

Sheldon is working with the family that owns the property, and has been unwilling to make significant changes to his original development footprint.  His original plan called for 22 homes on lots averaging 10,000 sq. ft. (some smaller, some larger).  He subsequently agreed to reduce the number of units by one and put 21 homes on minimum 10,000-sq.-ft. lots.  He later increased the setbacks from Newport Avenue and introduced several one-story homes to preserve the views of residents behind the property.

Ten thousand square feet, residents insist, is still too small.  When the planning commission held a public hearing on the rezoning, Nov. 8, the Cowan Heights community attended to make their case for denial.  The commission approved Sheldon’s project by a unanimous vote.

Ahead of the final Dec. 12 hearing by the Board of Supervisors, the Foothill Communities Association (FCA) hired an attorney to supplement the opposition expressed by 2,500 residents who signed a petition, sent letters and emails to each supervisor, and the roomful of homeowners who attended the board meeting to speak on behalf of their community.

Courting a battle
“I don’t want to sue you,” Attorney McClendon said to the board, as he listed the reasons why he would.  “Spot zoning,” he said, “is the antithesis of rational zoning.  And that’s what this is.  The only benefit is to the property owner.”

The EIR had (by law), he noted, identified an alternative to the 21-unit project that was “environmentally superior.”  Building fewer houses would have less impact on the surrounding community, would not require a zone change, and would not be opposed by the neighbors.  Yet, he said, the alternative was ignored by the developer and the county.

McClendon also brought up the recent Canyon Fire 2 that destroyed Peters Canyon Park, and could have taken out Cowan Heights if the wind had continued.  “The property is located in a fire hazard severity zone,” he pointed out, “but the EIR didn’t look at the fire hazard.”  He said he had sought out the opinion of a fire professional who confirmed that fewer homes do, indeed, reduce fire exposure.  It is easier to defend houses that are farther apart; access is impinged by smaller setbacks.  The fire danger imposed by 21 houses versus five, for example, is great.  And tall houses (two-stories) catch fire easier because they catch more embers, he reported.

Odd man out
Spitzer advised the audience and his colleagues that he drives by the site every day. “It’s a different type of property,” he said.  “It’s in Cowan Heights, but it’s closer to Orange.  It’s a difficult property to develop.”  He noted that he had offered to meet with Sheldon and the FCA to negotiate a compromise, but that FCA had turned him down.  He announced his support of the rezoning and the project.

Shawn Nelson had questions about resident and guest parking.  There wasn’t enough, he said.  “There’s one too many houses on each side of the street.  What happens when residents have guests?  They can’t park on Newport.”

Lisa Bartlett didn’t like the look of the proposed block wall bordering Newport, and suggested that residents would prefer bushes and trees.

Andrew Do was bothered by the spot zoning.  “We have to live by the rules,” he said.  “We need to decide the bigger picture. There has to be a standard, not guerilla warfare going door to door.”

A better solution
Do asked FCA President Rick Nelson why he rejected Spitzer’s offer to negotiate.  Nelson explained that they had met with Sheldon three times and made some progress, but it was not reflected in the plans.  “We are,” Nelson stressed, “willing to negotiate.”

“There are concerns on this board,” Do acknowledged, “starting with one house too many on either end.”  It was clear that Spitzer’s colleagues were reluctant to approve the project, but were deferring to him because the parcel is in his district.

“The feedback from the board allows me to negotiate,” Spitzer said.  “Let me do my job and negotiate something that makes sense.”

The board seemed ready to delay the decision until Spitzer could meet with the developer and the community.  Just ahead of that likely motion, Sheldon hurried to the podium and asked the board to certify the EIR and approve the zone change, noting that he’d be willing to negotiate on the project details later.

Better wait than sever
Do asked county counsel if the board could certify the EIR and approve the zone change now, but hold off on project approvals until a future meeting. Counsel told the board that separating the certification of an EIR from the project was not common.  “It could be done, but is unusual,” she said.  She further explained that once the EIR is certified, the county filed paperwork that started the clock ticking, and either party had 30 days to file a lawsuit. 

McClendon advocated postponing the decision. “Let’s avoid a lawsuit,” he said.  

The board was poised to delay its decision, when Sheldon raced to the podium again.  The developer insisted that the EIR be certified and the zone change approved.  “I’m not afraid of a lawsuit,” he said.  “We can work out the details in 30 days.”

Spitzer acquiesced and motioned to certify the EIR and okay the zone change, but delay approvals of the project itself until negotiations could take place.  Do, Bartlett and Nelson, following the third district supervisor, agreed.  Project approval is continued until Feb. 6.

​​Spitzer leads OC Board of Supervisors to

approve unwelcome zone change