The following is a story by the Foothills Sentry newspaper, a Voice of OC media partner covering Orange, Villa Park, Orange Park Acres, Anaheim Hills, North Tustin, Silverado Canyon, and Modjeska Canyon.
This story was published in the Sentry’s January 2016 edition.
The beleaguered North Tustin Specific Plan (NTSP) got a boost when the Orange County Board of Supervisors approved an amendment that removed a “senior residential housing” designation from a seven-acre parcel at 11901 Newport Avenue.
The designation was created in 2011 to accommodate the Catholic Diocese of Orange and Kisco Senior Living’s plans to build a retirement facility on the property. North Tustin residents opposed the three-story complex, avowing that it did not comply with the specific plan. The plan does not permit commercial development northeast of 17th Street, and specifies single-story, single-family residences as appropriate for the area. The parcel, owned by the Catholic Diocese, was also zoned for a church or school, neither of which the landowner wanted to build.
According to county code, senior facilities are commercial enterprises; the planned 355-unit project was clearly outside the mandate of the NTSP. Thus, the senior residential housing (SRH) designation was created to enable the commercial, multi-family development. The designation exists nowhere else in the county.
Illegal, but acceptable
The Foothill Communities Association, representing North Tustin homeowners, filed a lawsuit.
A lower court found the SRH to be illegal spot zoning. The developer and the diocese appealed, and the appellate court ruled that while it was spot zoning, the board of supervisors had the authority to approve it. Although the county had not joined the appeal, the court deferred to the judgment of the board, and granted it great discretion in deciding what was best for a community.
When Supervisor Todd Spitzer was elected, he promised to do what he could to restore the integrity of the NTSP.
“I’ve pledged alliance to the sanctity of the NTSP in every campaign,” he said. “When I first ran for supervisor in 1996, I promised that I would never agree to change the plan, unless it was a separate stand-alone conversation to amend it on its own, not due to a specific project.
” When elected to third district supervisor for the second time in 2012, he renewed his promise, directing county planners to start the process needed to remove the spot zoning. The resulting amendment to restore the NTSP to its original intent came before the county planning commission in November, and it did not fare well.
Commissioners were reluctant to reverse the court ruling and accepted public testimony describing the amendment as anti-Catholic and anti-senior citizen. Without hearing any context for the amendment – that it was restoring the integrity of a specific plan that property owners depended on – the commission voted unanimously to deny it.
The amendment’s appearance before the board of supervisors, Dec. 15, was a different scenario.
The boardroom was packed with supportive FCA members and Spitzer neutralized dissenters’ arguments in his opening remarks. He provided the backstory, put the value of the NTSP in perspective, and explained why it was important to remove the spot zoning that changed a long-standing specific plan without adequate public process.
“When Bill Campbell was supervisor, he drove the decision to amend the NTSP to create a spot zone, senior residential housing,” Spitzer explained. “Did he have the right to do that? Yes, as a duly elected official, he did. But I was, personally, deeply upset by it.” He stated that the specific plan is a “legal document created with the collective effort of the community. I am a vigorous advocate of specific plans and I oppose changing them for a development,” he stressed.
“We’re not here to disapprove or approve a development. We’re here to answer the question, ‘do you believe in the sanctity of the NTSP?’”
A few days before the hearing, Spitzer’s opposition circulated the idea that he should recuse himself because his law firm represents a client that lives in North Tustin; his vote would be a conflict of interest. The supervisor tackled that challenge head-on, reporting that he had conferred with county counsel and the Fair Political Practices Commission, and both had assured him that his vote did not represent a conflict because it did not represent a financial or economic gain.
But wait, there’s more
After listening to 38 public speakers and discussing the pros and cons (the court has ruled, why would we go against it?) of the issue, the board voted, 3 – 2, to remove the spot zoning from the NTSP. Spitzer was joined by Lisa Bartlett and Shawn Nelson. Nelson was a supervisor and the sole “no” vote when the original vote to amend the specific plan came up in 2011.
The NTSP is no longer spot-zoned for senior residential housing, but it is not inviolate. Shortly after Bill Campbell’s board amended North Tustin’s plan, it weakened the Foothill Trabuco Specific Plan to allow a 65-unit development on Santiago Canyon Road. At the same time, the board approved an amendment that allowed supervisors to modify any specific plan at will. That means county islands governed by a specific plan can no longer count on those documents to protect their communities from inappropriate land use. Canyon residents filed a lawsuit and prevailed in the superior court. As with the NTSP suit, the appellate court reversed the ruling, deferring to the authority of the board of supervisors.
Property owners in Foothill Trabuco, Silverado, Orange Park Acres and North Tustin have asked Spitzer to do what he can to reinstate the strength and standing of their specific plans by restoring the original language of the FTSP, and removing the “change it at will” clause in the county general plan.