October 29, 2010

Strange Bedfellows

Bruce Tarzy is supporting John Mullin, Don Higginson, and Carl Kruse for Poway City Council.

Who'd of thunk it?

Tarzy, Mullin, Higginson and Kruse go way back in Poway politics. Tarzy was elected to the first council 30 yrs ago. Kruse was appointed 2 yrs later to fill the term of Clyde Rexrode, who died the day before he was re-elected. Mullin served on a committtee to advise the council whether Poway should form a redevelopment agency in 1983, and was chairman of the first official Redevelopment Advisory Committee in 1985. Higginson's was first elected nearly a quarter of a century ago. Their voices are not new voices in Poway politics. What is new is seeing old political foes regroup.

It is no surprise that Tarzy is supporting his longtime friend, Carl Kruse. They both served as officers of the Green Valley Civic Association (GVCA) and they even vacation together. Some people have said that Carl Kruse is Bruce Tarzy's personal council member.

It is surprising that Tarzy is supporting Higginson and Mullin. Back in the mid-1980s, one of the chief political issues was how Poway should grow. Tarzy (and Kruse) were on the side of slow, controlled growth. Mullin and Higginson were pushing for more development. In 1988, the 2 sides lined up behind competing ballot propositions, Prop FF (slow growth) and Prop GG (the developer's alternative). Prop FF was sponsored by a group called "Poway Citizens for Limited Growth". Bruce Tarzy, Jerry Hargarten and Bob Emery were key architects of Prop FF. The competing proposition, Prop GG, the "quality of life initiative" was written by council member Linda Brannon. Higginson and Mullin favored Prop GG.

Before I get into the Prop FF-GG contest, I want to paint a little picture of what Poway was like in those days. There was no industrial park in the hills of south Poway. There was no Old Coach development or Maderas gold course. Scripps Poway Parkway, known as "alternate this" or "alternate that", was only a pencil mark on a map. The houses in the Arbolitos development were just starting to show up on the horizon. A brand spanking new shopping center, anchored by a Target store just opened. There was no Wal-Mart. Our original "town center", Creekside, was a grazing area for cows. There was nothing between the Poway city limits and the freeway except open space.

When Poway incorporated in 1980, one of the first things the council did was to impose a building moratorium until a new development plan was approved. The first council was dedicated to keeping Poway rural and controlling growth.

In the 1986 election, Don Higginson and Linda Brannon defeated Linda Oravec and Mary Shepardson, two of the original Poway councilmembers. This was the only election that any incumbent Poway council member ever lost. The moment marked a major shift in Poway politics. Higginson and Brannon were both considered "pro-growth" in a community that had incorporated, largely to control their own growth.

In the 1988 election, Bruce Tarzy (who had decided not to run for re-election) and Bob Emery (who was running for re-election) teamed up to write and support a proposition that was later named Prop FF on the ballot. Tarzy and Emery hoped to prevent future councils, ones with the likes of, ummm, say a Brannon or Higginson, from being able to ruin their vision of what Poway should look like.

As a competing measure, Brannon wrote Prop GG, the "quality of life" initiative, the kind of thing developers love. Higginson and Mullin supported Prop GG.

Prop GG qualified for the ballot after paid signature gatherers obtained the necessary number of signatures. The council passed resolution 88-085 on August 2, 1988, thereby putting Prop FF on the ballot.

A few days before the election, a group of five Poway residents delivered a letter to City of Poway special counsel complaining about some campaign hanky panky between Bob Emery's election committee and Poway Citizens for Limited Growth, the committee that was formed to get Prop FF passed by the voters. Specifically, the group claimed that Bob Emery's campaign committee was controlling the Prop FF committee (Poway Citizens for Limited Growth) and that they were sharing campaign expenses.

(The Tribune. San Diego, Calif.: Nov 3, 1988. pg. B.8)

The seven-page letter contends that Emery's committee controls the FF committee and has violated Poway's campaign-finance laws by collecting contributions above the $100 amount allowed for controlled committees.


The complaint given to Knoepp contends that Poway Citizens for Limited Growth became a "controlled committee" Sept. 24, when two airplane banners touting Emery and Proposition FF flew over Poway during the city's Poway Days celebration.


The difference in the shared cost indicates that the Emery committee controls the Proposition FF committee's financing, the five said.

When a committee is considered "controlled," under Poway's campaign ordinance, a contributor can give no more than $100 to each campaign.

According to campaign disclosure statements filed with the Poway city clerk, nine contributors have given $100 or more to the Emery re-election committee and $100 or more to the committee for Proposition FF, which would require voter approval to increase density in rural residential areas. Three people, including Councilman Bruce Tarzy, have given the $100 maximum to Emery and $500 or more to Poway Citizens for Limited Growth.

Hmmmm. Sounds familiar, doesn't it? It is a classic campaign maneuver. Just before the election, one or several of a candidate's supporters file a letter of complaint against their candidate's opponent. The complaints get some press, and it goes to a special counsel who holds off on looking at the complaint until after the election and then he/she dismisses it.

One of the 5 people who signed the letter of complaint against Emery and the Prop FF committee was John Mullin. Mullin's complaints against Emery and the Prop FF committee were found to be without merit. But for the record, special counsels appointed to oversee election complaints generally dismiss all of the complaints. Serious complainers must file a signed grievance with the Fair Political Practices Commission (FPPC). During that same 1988 election, somebody did send a couple of complaints to the FPPC that resulted in stipulations and fines. One was against Emery's opponent, Larry Valente and the other was against developer Kuebler. Valente was fined $1500 for sending a late campaign mailer titled "The Republican Update"which did not identify Valente's committee as the true source of the piece. Richard Kuebler, a Poway developer, was fined for $17,500 for not disclosing campaign donations in Escondido and for failing to identify himself as the source of two "hit piece" mailers against Bob Emery.

Prop FF beat Prop GG 2-1 in the election. The rest is history.

Fast forward to 2010. Why is a slow growth guy like Tarzy supporting his old pro-development enemy, John Mullin? Mullin has made no secret that he wants to make development easier in Poway. He has proposed a "streamlining process" as a first step. The streamlining will allow staff to approve projects that now require public notice and council approval.

John Mullin is also a member of CALPASC, (California Professional Association of Specialty Contractors). In fact, Mullin is on Government Affairs Committee of CALPASC. When Poway Patch's Margie Palmer queried Mullin about his involvement in this group, Mullin didn't see the inherent conflict of interest.

"My being a member of Cal-PAC is no different than me being a member of the Chamber of Commerce," Mullin said. "It's a trade association. And people who continue to propose that having some sort of significance with regard to my role on the council are incorrect."

Uhmmm, no. CALPASC is not simply a trade association like the local Chamber of Commerce. Now if Mullin was referring to the US Chamber which spend buckets of money, some of it from foreign entities, to influence legislation in the US that is advantageous for businessfolk and disadvantageous for workers, well he may have a point. While the local Poway Chamber does advocate for their members, they don't bring it to the level that CALPASC does. Check out their CALPASC's webpage. They have paid lobbyists who help write and push for certain legislation, de-regulation and judicial remedies. Our local chamber is doing street fairs, not filing "amicus briefs" in court on behalf of contractors.

According to Cal-Access, the California Secretary of State's database, CALPASC has hired 2 firms to lobby for them: Government Strategies, Inc, (2003-2009) and California Strategies & Advocacy, LLC (2009-2010). CALPASC spent just under $300,000 lobbying in 2007-2008 and have reported over $73,000 spent so far in 2009-2010.

It is pretty unethical to be on a legislative body, even a local legislative body and to belong to a group that is lobbying for legislative remedies at the same time.

So why is Bruce Tarzy supporting John Mullin for council? I've got a theory, but I'll save that for a future blog. What's your theory?

October 13, 2010

John Mullin's Terrible, Horrible, No Good, Very Bad Idea*

Mina De Oro Gate
It's already started.

John Mullin, who replaced Betty Rexford in the June, 2010 recall election, is a man on a mission and he isn't wasting any time. Mullin is a developer and a developer's best friend. His goal is to grease the skids for developers, so they can do what they want without any governmental body telling them they have to do it this way or that way.

In the agenda for the October 19, 2010 Poway City Council meeting, there is a memorandum initiated by Councilmember Mullin proposing a "streamlining process." Mullin is proposing that city staff be given the authority to approve certain decisions that currently require council approval. Yes, this would speed the approval process for a development project, but it is a really terrible, horrible, no good, very bad* idea for several reasons.

First, many of the Poway city staff are "at will" employees. They can be hired or fired "at will." So, when a project proposed by an influential friend of a council member or city boffo comes up, there can be a lot of pressure on the staff. Are they gonna go with strict compliance to the rules or do they want to keep their job?

Second, these issues can and do cause a lot of neighborhood conflict, ill will and court suits. Not to mention staff turnover. Decisions that are not made through a public process are easily perceived to be (and often are) biased. Council members or other high level city staff will be tempted to throw their weight around to benefit their friends without the public being aware.

You think it doesn't happen?

Have you forgotten the recall stories? Remember that fire truck story? Supposedly, Betty Rexford got her own fire truck while someone else's house burned down. If that was true, (and I didn't see any proof that it was) then the fire department was easily coerced into providing a favor to a councilmember who wasn't even all that powerful. Poway has refused to clear the air about this incident, or to publicly address whether the incident did or did not take place or to discuss what steps to take to prevent something like that from happening in the future.

The trigger for the Rexford recall was a court suit filed by Rexford's neighbors. The neighbors
claimed that Rexford used city staff to harass them and interfere with their building projects.
Rexford claims she didn't. The city settled out-of-court. Several of the planners that were involved in the case are no longer working for the city. Mullin wants to put more pressure on the staff to make decisions without public notice or council oversight. That's a terrible, horrible, no good, very bad* idea.

While I have immense sympathy for the first time remodeler (I've been there) or someone who has great business plans but is totally confounded by the rules and regulations of getting set up in Poway, I have no soft spots in my heart for developers. I am sure that there are some ethical ones, but more often than not, they use every sneaky trick in the book to get around the rules.

Consider our former mayor, who was a developer. He bought a piece of property that was real cheap because it had some environmental constraints on it. It had protected vernal pools on it. Someone from his company managed to get a City of San Diego staff person to give them a grading permit one day and Cafagna destroyed those vernal pools.
In December 1999, owners of a protected vernal pool site off Arjons Drive, north of downtown San Diego in Mira Mesa, bulldozed a significant portion of the parcel, scrapping off native vegetation and filling in fragile pool basins. Destruction of a protected vernal pool site is a violation of state and federal Endangered Species Acts and would ordinarily be a clear signal for prosecution. However, in this situation, the City of San Diego issued a grading permit without first checking their files and completing a proper investigation. In response, the U.S. Fish and Wildlife Service and the California Department of Fish and Game coauthored a letter informing the city it violated state and federal regulations in addition to San Diego’s own municipal code for issuing permits. The pools were protected in the 1980’s by an agreement approved by the Fish and Wildlife Service with the land’s former owner and that information was communicated during the sale via a signed letter from both real estate brokers involved. Responsible parties claimed ignorance and Michael Cafagna, co-owner of the property, denied any wrongdoing. In late 2002, San Diego County prosecutors quietly dropped the case.

This is the "oopsie" method of getting around the rules. "Oops, did I just grade vernal pools? Oh, sorry, but since they are all wrecked, can I have a building permit?" Cafagna didn't get his building permit that time, but the "oops" trick has been quite successful in Poway.

Whether it is building a garage in the front setback (because it doesn't otherwise fit) and then declaring that someone "mis-measured" and it would be too expensive to rip it down or chopping down heritage trees early one morning on a weekend when code compliance officiers were not available, well, it is all good in Poway. And Mullin wants to make it even better.

In 1993, Bruce Tabb, developer of Old Coach, was ticked off because he thought the Old Coach property was identified as "high quality vegetation" on Sandag maps. With Councilmember Higginson in his office, Tabb called up Poway city planner, Jim Nessel, and "lambasted" him for "not acting in his best interest or appropriately representing him as a property owner in Poway." Tabb even put Higginson on the phone (quasi-judiciality not concerning him here?) to pressure the staff member.

Nessel was POd enough about the experience to write a memo to City Manager Bowersox. A little note at the end also suggested that Tabb had cleared his property 3 times, but staff had only been aware of 2 clearings. Likely he was not permitted for the third clearing.

Higginson and Tabb Harass Staff

Sometimes developers employ sneaky tricks themselves; other times, they hire someone to do it for them. Someone like John Fitch, the former asst city manager, who left that job under not-so-favorable circumstances. After his employment with the city ended, Fitch represented several clients from time-to-time in their bids to get the council to bend the rules in their favor. In 2004, John Fitch represented some property owners living on Eucalyptus Heights Rd and Mina de Oro Rd. who wanted the city to allow them to build a gate across Mina de Oro Rd. They cited security and trash problems as the reason for wanting the gate, although data from the sherif's department did not substantiate that any problem existed.

One of the property owners on Mina de Oro , Menachem Shoval, did not want the gate. He complained that his neighbors had sometimes blocked the road with rocks and debris to prevent him and his guest from reaching his property. Also disputed was whether or not Mina de Oro was a public or private road, even though the city had designated the road as access to the public trail system. On Jan 18, 2005, the council voted on the gate request. Councilmembers Rexford and Boyack voted in favor of the gate, Higginson, Emery and Cafagna were opposed. Fitch was persistent and got the matter brought back before the council on March 22, 2005. This time the gate was unanimously approved.

The Shovals were not happy. They sued and won their case in Superior Court in 2007. In her tentative ruling against the City of Poway, the Judge Lewis ruled that Mina de Oro was a public road and that (bold added for emphasis)
the Court believes the City's approval of the resolution was arbitrary, capricious, and entirely lacking in evidentiary support. Moreover, even if this were a CCP 1094.5, et. seq., writ petition, the Court finds that in the absence of any findings concerning the public nature of the road or the effect of its gating on the public, there is a lack of substantial evidence to support the City's passage of the Resolution.
The city was required to rescind approval of the gate. But first, they considered a work-around of the decree. They considered vacating the road, thereby making it a private road. And the City refused to cite neighbors who were still obstructing the road so that the Shovals could not reach their property.

A little gift from the neighbors blocking access to the Shoval property

The Mina de Oro gate fiasco was not a staff decision, it was approved by the entire council in public session. Imagine what will happen if a staff member is allowed to make such decisions without any public vetting. My next example will do that, and one of the special features is that some of the very same characters that were involved in the Shoval gate case pop up in the Victorian switcheroo.

When the L family moved into their Old Poway home, most of the windows faced a small, vacant lot. The lot was "substandard" under the city's code and general plan, so it was difficult to build on that lot. The lot was once part of a adjacent parcel that had a small house on it. The owner of the small house still owned both parcels and wanted to build a larger house on her lot. She met resistance at the city and gave up. She sold her lot for $50,000 to a Harry Rogers in 2004. Four months later Harry Rogers sold the parcel to his neighbor Dennis Keena for $200,000. Rogers and Keena both lived on Mina de Oro- they were 2 of the people who asked the city to give them a permit for the gate across the road. John Fitch is going to be in this story too. Fitch represented Keena in his request for a variance so that he could build a house on the substandard lot. He needed a variance because the house he had planned was going to spill over into the front, rear and side yard setbacks. Keena would sell the lot for a cool $300,000 after his buddy John Fitch got the variance.

Mrs L reviewed the city documents for the proposed house. She knew the house was going to be much closer to her house than what the city codes allowed. What she didn't know, was that John Fitch was going to ask the council to give his client a "variance envelope" so that they could come back later and substitute a different house with only staff approval, if the house fit within the "variance envelope" for the first house.

The documents that Mrs. L reviewed at the city showed plans for this house - a 2,172 sq ft house with attached 655 sq ft garage:

Imagine her surprise when they started building this house- a 2,850 sq ft house with attached 566 sq ft garage- next door to her:

The Poway code requires an applicant to return to the council for a 2nd approval if they decide to change the design of a proposed project. John Fitch got around that by requesting and receiving approval for a "variance envelope" with approval by a staff member for changes if the changes fit in the variance envelope. The planned switcheroo took place, and a Poway staff member approved the Victorian instead of the first house. Without any oversight, there was nobody who carefully checked to see if the Victorian did indeed fit into the variance envelope. It didn't. When Mrs L complained, the city issued a stop work order. A new variance was needed before work could resume.

Mrs L, Joe St Lucas from SPRA and I met with city manager Rod Gould and city planner Patti Brindle on the Friday before the new "oops" variance would go before the council for approval. Gould profusely apologized to Mrs L for the many staff mistakes. He reminded me of those CEOs telling folks how sorry they were that their faulty tires killed so many people. It was a good act, but I don't think he was sincere because of what happened next. When we asked Gould what the staff recommendation would be for the new variance, he said he would recommend approval. He didn't want the homebuilder to have to incur a lot of additional costs because of all the mistakes. Then Gould said something which stunned me. He said that there would only be 3 council members at the meeting, and the variance would only need 2 votes for approval. He was wrong. I told him he was wrong and he later confirmed with me that he would indeed need 3 votes. What kind of jerk would admit that his staff made mistakes, lots of mistakes and then not give the aggrieved party a fair hearing? Or a least pretend to give the aggrieved party a fair hearing? This was my first meeting with Gould, and I left that meeting with a really bad impression of what kind of person he was.

During the remainder of our meeting, I argued with planner Patti Brindle over her various interpretations of the city code. For example, the code explicitly states how far a porch can protrude into a setback. Ms Brindle insisted that the porch which wrapped on 3 sides of the Victorian house was a patio cover that was "open on three sides" and not a porch. I am not an architect or city planner, but I know the difference between a porch and a patio cover and I was really peeved to see how vociferously she insisted on her screwy interpretation. Mullin wants the staff to be allowed to approve things like this without anyone else getting a peek at what they are doing.

In the end, Brindle amended the variance request again to cover the porch. And the council dutifully approved the oops variance. The total variances given to the project were 13 ft into the front yard setback, 1.5 ft and 6.75 ft into the side yard setbacks, and a whopping 29 feet into the backyard setback. The Victorian house pictured above was built almost 30 feet closer to Mrs L's house than is allowed by our Poway code.

Letting the staff approve projects like this leads to many intentional and unintentional errors. And a lot of anger and tension between prospective neighbors. The city is also at risk for additional court cases. It is a really terrible, horrible, no good, very bad* idea. No doubt John Mullin's supporters are in favor of it. I got a piece of campaign literature from him the other day. It was no surprise to see that John Fitch and his buddies had endorsed John Mullin, the developer's best friend.

* My apologies to Judith Viorst for stealing part of the title of her book, " Alexander and the Terrible, Horrible, No Good, Very Bad Day."