Foothills Sentry - October 2023

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Loss of local control “We’re the pesky locals,” Wag- ner said. “That’s why we need Sacramento to tell us what’s good for us. There’s a dispute among lawyers whether the Housing Accountability Act applies here. That’s important.” His main concerns, Wagner explained, are health and safety. He noted the 80,000 sq. ft. of as- bestos-laced asphalt that must be broken up and removed. Asbestos particulates could easily become airborne and pollute the neighbor- hood. While the area itself is not in a high-risk fire zone, it is in the shadow of one. If there was a fire, residents would have a hard time getting past the chokepoints of the narrow, winding streets. That would be exacerbated by the one-way out configuration of the 37-unit complex. “The EIR traf- fic study ignores that emergency,” Wagner noted. Referring back to the develop- er’s notion that the new housing would not introduce more traffic than the racquet club does, the supervisor pointed out that, “If there’s a fire, you’re not playing pickleball or tennis. It’s the resi- dents who have to get out.” Kristina Foley sought clarifica- tion on the impacts of asbestos, fire, state legislation and the cov- enant. The asbestos removal, she was told by County Counsel Ni- "County Supervisors" continued from page 1 cole Walsh, would have to have an abatement plan and it would have to comply with the law. Code compliant Lori Smith, the Fire Authority’s Assistant Chief of Community Risk Reduction, reported that the project was only in “the prelimi- nary stages of approval.” It is next to a fire zone, she confirmed, and will require a fire master plan.” But for now, she said, ingress and egress “meets code.” Walsh also advised that in ad- dition to affordable housing, the state is requiring more moderate and above-moderate-income level units. While the county did not in- clude this site in its 10,000-plus- unit state-mandated Housing Ele- ment plan, these 37 units would be counted in the county's favor. The state’s Housing Account- ability Act requires a jurisdiction to approve housing developments that are consistent with their Gen- eral Plans and zoning. This parcel is zoned A-1 (agriculture) which allows for 0.025 to 0.5 dwellings per acre. County zoning, however, allows up to 18 units per acre on the same property. The General Plan and zoning code are still con- sistent, Walsh asserted because they both allow residential. The only inconsistency, she noted, is the number of units. If the county ended up in court, and lost, the builder could put 18 units on each of the 5.8 acres – over 100 units. The covenant, Walsh explained, allows for uses “permitted in tract 3383, and that includes residen- tial.” While tract 3383 consists of single-family homes on one-half- acre lots, and the project puts six units on an acre, she harkened back to the 18-unit-per-lot zoning and suggested that because “resi- dential” is the common denomina- tor, it is a permitted use. Covenant not a concern Walsh also stressed that because the covenant was between the racquet club property owner and residents of tract 3383, the county was not a party to it. If the county doesn't interfere with its enforce- ability it will have no liability. If it did “come between the parties,” the county could become involved. Doug Chaffee said he was con- cerned about the builder's remedy, an untested theory that developers can build whatever and wherever they want if a jurisdiction does not have a compliant Housing Ele- ment. Orange County’s has not yet been approved by the state; the builder’s remedy however, requires 20% of those units to be affordable. With units costing $1.5 million each, this project does not qualify for the builder’s remedy. Chaffee, however, worried that Zender could sell the property to another developer who would use that le- ver. “I like this project,” he said, “it’s a guard against the builder’s remedy.” Checking the boxes Vicente Sarmiento acknowl- edged that the North Tustin resi- dents had presented their case in a compelling way. The Planning Commission, he said, “heard the emotion, but ruled on the facts. Our role here is to sit as an appel- late body.” If we deny the project and are challenged in court does anything distinguish this? Probably not. One condition of the Housing Accountability Act is that a project must not jeopardize public health or safety. Walsh did not believe that applied in this case. “To deny the project we would have to make findings that it violated health and safety stan- dards. I don’t think we can make those findings.” Amidst his colleagues concerns that state legislation could bring a higher density project to the prop- erty, Wagner pointed out that they were not voting on what might happen in the future, but the ap- peal by North Tustin residents. “We’re not here to choose this project or the builder’s remedy.” Foley, Sarmiento and Chaffee voted to deny the appeal. Wagner dissented. “The community was very disappointed by the 3-1 decision of the Supervisors,” a North Tu- stin spokesperson said, "which ignored strong legal arguments and the voices of constituents throughout the county. The Foot- hill Communities Association is moving forward with legal action and is anxious to present the com- munity’s case in court.”