Council Is Blindsided Again!

While watching Tuesday’s Council meeting (04/15) my cellphone blew up with calls and texts saying, in one form or another, that Council is blindsided again. Most referenced last December’s Council reorganization meeting as the blindsiding benchmark.

Madrona-yes-1After receiving Planning Commission approval, first in 2008 and then in 2013, the Madrona development was challenged again by a small but vocal special interest group Hills For Everyone. Their Vice President/Treasurer, Bev Perry, took the lead role as appellant and asked Council to overturn the Commission’s decision.

After several hearings going back to November of last year, the appellant presented their objections to the project, the applicant presented overriding considerations, both sides rebutted the other’s facts and figures and the public was given the opportunity to wade in, on the record, with their opinions.

The finish line was in sight.

Or was it? With the public hearing closed, this was to be the wrap-up discussion by Council with a vote to either uphold the appeal or deny it – in essence to deny or approve the development moving forward. Then Council, at least some of them, had the rug pulled out from under their feet.

brett_praysSuddenly we were listening to Mayor Murdock and Mayor Pro Tem Marrick dive into their special list of additional considerations ranging from the ridiculous to the sublime.

No one calling or texting me thought this was appropriate and wondered why neither other Council members or the City Attorney interjected and pulled the plug on their dog and pony show.

Well within their rights.

christine_talksI discussed this with folks either having  a strong background in planning and development or legal authorities specializing in development law.

Murdock and Marrick were well within their rights to present their considerations.

But what is legal may not be prudent. Many still question their secretive style which seemed more than a little politically motivated. Plus, the items they rattled off, with marginal support from other Council members, added weeks to a process most in the community were ready to put to bed.

How critically important are these last minute considerations?

roy_intervenesHere, lifted from Roy Moore’s Brea Net (#682) newsletter, are the items in question. (The commentary is mine, don’t go calling Roy on this.)

Roy concludes, “As you can see many are relatively harmless with minimum cost impact. Others are major and may be hard for the developer to comply. The Council approved a motion to ask staff to develop a draft of the [above] conditions for approval of the Madrona development. The Madrona saga continues on May 6.”

1.  Madrona should not be a gated community.

Claiming that good old Brea’s reputation would be poorly served by creating a security barrier around executive estates, that it would appear snobby… I guess Marrick overlooked the numerous gated apartment and condo properties throughout Brea.

Besides, why would owners of million dollar plus homes want that sort of security anyway?

2.  Other than for emergency uses, Olinda Place will never be used by Madrona residents for daily use.

This really doesn’t provide an overriding consideration benefitting much of Brea outside of Olinda Village residents, the loud voices droning on and on supporting Hills for Everyone.

marty_motionsNoteworthy however is that this allowed emergency use provides the second ingress egress point felt mandatory by Councilman Simonoff who seemed to be weighing his total view of Madrona based on a public safety technicality.

To be sure, Simonoff has a lengthy track record of fighting for public safety issues. Someone should remind him that Fire Chief Kanaabe was satisfied with the plan as written.

When I questioned Simonoff about this, he reconfirmed his position relative to safety issues and said that, if Olinda Village came to him today for approval, he would likely vote no on it as well.

3.  A system should be included in the development to collect and recycle water runoff.

For most concerned this is a useful and feasible consideration. Not sure where they want it collected or how they want it redistributed. I suppose we’ll hear more at the next meeting.

4.  Each home should have the capability to collect and recycle “gray” water.

This will likely prove more difficult, more costly, because it calls for two parallel plumbing systems, doubles the number of connections and requires the addition of individual purification systems. No figures were given regarding water savings. And again, I have to ask what is the overriding benefit derived by the rest of us living in Brea? Weren’t water issues determined to be non-issues now?

5.  The developer should procure water shares in Cal Domestic for the City.

david_respondsIn a word, impossible. There are no shares available now. The current price per share is $16,000 dollars.

What, you want a check so if and when shares become available we can acquire them? How big a check? At what price per share? Putting this “water in lieu” idea on the table is unfeasible, impractical.

Did you not listen to staff when they told you this? You keep laying it on thick how wonderful, how brilliant these folks are who, as Murdock put it, “get the big bucks…” Why don’t you listen to them? They’re trying to earn their keep. Let ’em!

6.  The future buyers should have the option to include solar panels on their home.

ron_babblesAnother half baked snake bit idea. From your conversation it’s clear that you have no clue how this would be implemented. Kudos to Garcia for mumbling something about solar panels he saw once at a League of Cities meeting that look like shingles. Maybe I was the only one who heard him because the discussion raced off in another direction and the whole matter was dumped into staff’s lap.

7.  The development should contain 10% of the homes as true custom homes on minimum one-half acre lots.

There are half acre lots already, maybe they could be designated as your “custom” lots Ms. Marrick. But wait! This sounds really snobby to me! Big fat mini-mansions in the hills? How does this not completely conflict with your wanting no security gates? You can’t have it both ways, pick one and argue for it.

8.  At least one of the pocket parks should contain amenities such as a tot lot.

Hmmm, pretending that you didn’t come up with this months ago Ms. Marrick, the idea still gets stuck in first gear for me. Tell me how many families able to afford million dollar plus homes have kids still in the toddler stage? Are they supposed to wait until they become grandparents before the amenity is useful to them? Or maybe you thought all of Brea’s young moms and dads would flock there, through the un-gated entry, on weekends and holidays. Yeah, that will help sell executive homes.

9.  Provide back up generators for the two water pumping stations on Carbon Canyon Road.

Might be a bit excessive considering that the Fire Chief, already satisfied with the development, has a clear plan to cover this need. This sounds more like bankrolling political collateral. We’ll know for sure if, during campaign season, we see another of those “Look What I Did For Ya” flyers circulating all over town.

10. Get Cal Trans approval to the ingress and egress to the tract before beginning any excavation.

This is an absolute. It should have been on the “list” months ago. The space out there is tight and Cal Trans has a reputation of taking forever on matters like this. The Olinda Village signal took what, two years to get approved? Seems like it. This is the developer’s number one mission. Without this, nothing else being discussed matters.

11.  Increase projected school fees.

12.  Increase projected transportation fees.

These get lumped together because they’re statutory fees and arbitrarily doubling them, as pointed out Tuesday night, is actionable. The school fees are totally out of the scope of city business and Murdock needs to start paying better attention in class. These should be pulled off the list before the next meeting if for no other reason than to minimize the embarrassment to the community.

At the risk of opening Pandora’s box.

markman_chidesAfter the meeting the applicant’s attorney approached City Attorney Markman seeking to confirm that he and the applicant’s people will now be allowed to meet with city staff.

Both Murdock and Marrick, in there comments, alluded to this needing to happen. Markman confirmed that access was assured.

Really? What I discovered is that the appellant and her people had unlimited access to Council and staff during the hearings but that Markman barred city staff from having any contact with the applicant or their staff. What purpose did this serve?

It’s like trying to negotiate peace between Russia and the Ukraine… and telling the Ukraine they can’t come to the negotiating table. Sorry, but that sounds totally counterproductive to me and I’m surprised Council put up with it.

As long as the box is open.

Another issue that surfaced was, with all of these “new” considerations on the table, should the public hearing be reopened allowing the public to speak on the record again? When I queried Markman about this via email, here is his response.

“A reopened additional hearing would not be required legally. A Council may modify a project through conditioning as a result of a hearing process without reopening the hearing to discuss the Council’s revisions. The Council may reopen the hearing if the Council decides to do so by motion.”

Roy Moore asked the question. Brett Murdock said absolutely not. Markman said it’s possible but not required. The more people talked, the more they thought about what meaningful contribution John Q. Public made in this whole affair and the less interested they were in reopening public comment.

I agree. Don’t reopen the public hearing. Seriously, go back and watch the meetings.

Except for three or four very well articulated positions, everything else became a din of emotionally delivered soundbites of canned Hills For Everyone rhetoric delivered over and over like a broken record.

I know I’m going to get royally jammed up on that one so I’m hoping all of you who have turned off Matters From The Audience half way through to watch a rerun of Waking Ned Devine will support me with your comments.

It’s Time To Fish Or Cut Bait.

 

Legal Tactics Called Bait And Switch.

The 10/27/2013 Orange County Register, under “Our Town – Brea,” published the following: (Reprinted here because many of you object to the OCR’s paywall which blocks you from reading articles via links shared here and elsewhere.)

Amicus brief: Ballotpedia, a non-profit group that disseminates information on elections, and California Aware, which tries to improve agencies’ adherence to laws, have filed an amicus brief supporting ex-Councilman Steven Vargas in a court case against Brea over the validity of City Council authored rebuttals to 2012’s Measures T and U.”

What is an Amicus Brief?

Lady-JusticeAmicus Curiae, “… a phrase that literally means “friend of the court” — someone who is not a party to the litigation, but who believes that the court’s decision may affect its interest.” – William H. Rehnquist.

Ballotpedia and Californians Aware believe they are effected by the court’s decision and have filed an Amicus Brief, formal arguments with the court.  The decision on whether to admit the information lies at the discretion of the court.

I believe the brief presents a strong defense of the claims made in the litigation by Vargas. Clearly, the City ignored the letter informing them of their error and chose instead to disregard the law and bear the costs of the litigation that followed.  The whole matter could have been handled, without heavy legal fees, simply by adhering to the law when their error was brought to their attention.

Amicus Brief’s Conclusion.

You can read/download the full Amicus Brief here, or be satisfied by reading it’s concluding content.

“The fact that one of the present measures involved caps to the bait and switchers’ own salaries should raise an eyebrow of skepticism regarding any actions not completely compliant with the Elections Code. The City of Brea whether honest or nefarious in its mistake should not be permitted to swap signatories after the review and challenge period passed.

This Court must ensure that all entities play by the rules as clearly laid out in the Elections Code.  Section 9283 is crystal clear that the ballot arguments need to be signed by whoever authored them and § 9295 provides the only means to correct a ballot argument during the review period.  This was not followed by Respondents and this Court cannot allow a City to follow a different set of rules.

For the foregoing reasons, Amicus respectfully requests that the decision of the Court below be reversed in a published opinion that clearly holds a City is beholden to the exact same set of ballot argument requirements as every other person or entity.  Amicus requests that the City’s signature box bait and switch is not allowed.”

Throwing good money after bad.

tim_2aMy last blog post, Legal Fees Or Legal Fiasco? (scroll down), will give you a perspective on the $154,000 O’Donnell has paid Markman’s firm and how outrageous these fees are in relationship to the work provided.

At a recent Council meeting, Brea resident Don Parker, made a reference to the City of Bell that drew a heated critical response from Markman.

jmarkman_bContrary to the rules governing conducting of public meetings, our City Attorney was neither asked for, nor did he offer a legal opinion.

Pretending he was the 7th member of Council, he blurted out a personal opinion that has no business being expressed while he was involved in the performance of his duties.

Whether discussing the recent unapproved spending of millions of dollars on water shares, the unsanctioned spending of public funds for private travel, the unchecked and rapidly escalating legal costs incurred to cover up a violation of the Election Code, the inadvertent approval of raises Council gave themselves or the brazen disregard for the law that resulted in a member of Council receiving a $2,000 fine from the FPPC for violation of Election law… the common thread is quite apparent.

RRizzoThe loose management style relied upon to run the city, compounded by the obvious lack of transparency and a history for sweeping matters under the carpet, leaves Brea susceptible to the same abuse of power and authority that led to the disaster in Bell.

Is Brea another Bell on the way to happen?

I’m not suggesting that anyone is currently engaged in illegal activities.  I’m saying that the door has been left ajar and that opportunities are ripe for an unscrupulous individual or group to get away with serious larceny.

We need to replace Brea’s less than thorough policies and management guidelines with a set of rules ensuring that opportunities for corrupt activities is virtually zero.