03 June 2014

Madrona Approved by Brea City Council, 4-1

Well, after fifteen years, the housing project first called Canyon Crest and now known as Madrona for what is now described as 152 (down from 162) units on 367 acres on the north side of Carbon Canyon in Brea has finally been approved.

At tonight's city council meeting, the vote was 4-1 to approve a resolution denying the appeal of the 2008 planning commission approval of Canyon Crest and to entitle the project with a map.  This now leads to an increase in the value of the property, which its bankrupt owner, Old Standard Life Insurance Company, under receivership with the State of Idaho can now sell to try and realize some profit for its creditors.

As for new standards, the city has, for the first time, approved a housing project that had three statements of overriding consideration from significant adverse unavoidable impacts as identified in the environmental impact report.  This sets a precedent that could make it hard for this or future councils to deny other projects in sensitive areas (which is mainly what is left in terms of little undeveloped space in the city.)

Notably, though, the council hardly gave a second thought to the statements--which were really supposed to support the decision to approve--in favor of the dozen conditions of approval drafted by Mayor Brett Murdock and Mayor pro-term Christine Marick, all of which, in final form, were agreed to by the applicant. 

Old Standard obviously knew that these two were the swing votes (with Marty Simonoff always being against the project and Ron Garcia and Roy Moore always in favor.) 

It was telling that Moore was the one, just moments before casting his "yea" vote, who expressed surprise that the council did not address the statements of overriding consideration, instead hanging their collective hats (while many in the audience hung their heads) on the conditions of approval.

Unabashedly, Murdock, who was, oddly, speaking for Marick this evening, excepting a minor comment on correcting a statement that she did make, stated that their goal was to "tip the scales" to make the project favorable to them, based on what the mayor opined was finding a balance for the concerns of both sides. 

Murdock also tried to claim that he and Marick were against the project as presented before their conditions of approval were offered (that being so, why did they feel the need, as staff obviously did, to go the extra mile [or dollar] to make the development palatable?) 

Oh, yes, balance.

Truly, however, he and Marick weren't looking for balance--they were seeking a way to get the project approved for the applicant by squeezing concessions (some not well received by Old Standard), give the appearance of equal consideration to both sides, look to blunt the force of a lawsuit by Old Standard and who knows what else.

This observer walked in just prior to the council getting ready to offer comments before a vote.  Simonoff spent some time addressing why he thought the project should be rejected, beseeching his colleagues to explain to those who elected them and those whom they represented just why they felt the project's benefits outweighed the concerns, offering "substantive evidence." 

Again, Simonoff took the public safety issue as his linchpin for voting no and was also unhappy with much of the money offered as being "one-time" payments that would not help in the long run with the financial costs of the project.  He also noted this was the first development project he'd ever opposed in years of being on the council. 

Simonoff then offered a motion to vote on approving the appeal, which was conspicuously ignored by Mayor Murdock and the remainder of the council.

Moore responded that he'd made all of his relevant comments in earlier meetings and didn't see the need to elaborate on them, though he offered to reiterate them--to which some audience members vociferously said "no."  He did say that he felt that most comments by the appellant team and audience in opposition were fair and he thanked those persons for offering them.  Later, as noted above, Moore expressed some unease about the lack of attention paid to the statements of overriding consideration--but, then again, his vote was always known to be pro-Madrona anyway.

Garcia similarly stated that his position had been previously given and that Moore's comments covered most of his concerns.  After averring how difficult the process was, he offered some remarkable statements. 

One was that the council relied upon professional city staff, contractors and vendors, while he was quick to then say that the council had to make its own determination, though more in the vein of seeking verification of trust in what these professionals were stating. 

More telling, however, in response to Simonoff's request for public statements of why they were approving the project and its conditions of approval, was Garcia's claim that his offer of meeting with concerned residents one-on-one in his office was not taken up by opponents.

Why might that be?

Well, it could be that talking with an elected official privately in their office without witness or documentation might not be the best way for concerned citizens to express themselves, nor would it be the most desirable way for the citizenry of Brea to know what their elected officials think.  Privatizing a public issue seems highly questionable, at best. 

Then again, Garcia made a special point of noting that there were people who were in favor of Madrona.  What he didn't say (and this is on record in council meeting minutes) is that the vast majority of these pro-Madrona folks were chamber of commerce allies of John Koos, the former planning commissioner who voted to approve the project, as Canyon Crest, in 2008 and then resigned a few years later to be the P.R. front person for Madrona.

Murdock, speaking essentially for Marick, then said a few words about not liking the project as presented and then discussing the importance of offering the conditions of approval.  Remarkably, he then invited applicant attorney John Erskine to address the council under a flimsy guise of a question.  Even more notable was that Erskine had prepared remarks--hardly indicative of a spur-of-the-moment question as the situation called for.

Erskine has had a penchant for offering mildly honeyed praise for the appellants milliseconds before throwing a jab.  First, he, again, set the table for a legal response in court by reminiscing about a time when he was a mayor and council member (this being in Huntington Beach) and how a lawsuit was handled by his city. 

Then, he employed a fancy bit of alliteration in noting that the suit referred to "hypercritical hypertechnical hyperbole," a term he used in modified form to describe the Madrona appellants--while assuring all in the room that the jousting between the two factions was respectful. 

It was also during his remarks that he mentioned 152 units, not the 162 that have been part of the plan for the last five years of so.  He also went on to remark that the eleven conditions were an extraordinary concession for Old Standard to make (but not, presumably, too much to get those
Murdock/Marick swing votes) and spent some time cataloging the most significant and the financial windfall that would result for the city.

Turning Simonoff's "substantive evidence" phrase against him, Erskine coolly pointed to sections in the staff report that showed the Old Standard's offerings were just that and dismissed the appellant's "hypercritical hyperbole" as anything but such evidence.

Murdock invited the applicants to make further statements (again, as thinly veiled questioning) about certain features, like reclaiming water and the nature of a minimum of sixteen custom lots of a half-acre that would be major concessions.

Around this time, appellant head Bev Perry, a former council member and mayor, fairly bounded down the stairs to city attorney Jim Markman, who then approached city planner David Crabtree.  It turned out that Perry was more than upset about a lack of disclosure and notification about some of the changes brought out verbally at the meeting.

Specifically, there was an applicant letter received from the city and not forwarded to the appellants, as well as the statements made about the so-called "Madrona Heights" and its sixteen half-acre custom lots and other modifications that would clearly require a revised map.

Procedurally, this was unfair to the appellants, who were not given the opportunity to be notified of these adjustments and then given adequate time to address them.  This oversight, however, might be useful in a lawsuit.

In fact, Simonoff then took the opportunity to protest that, with the applicant getting a platform to make what were, in essence, further arguments despite the closure of the public hearing (again, behind a tissue of vague questions offered by Murdock), some opportunity should be afforded the appellant to address particular issues.  His question was basically about some statements made by the applicant and staff about "green code" issues relating to how close some of the concessions would get the project to an unprecedented level of certification for energy efficiency and the like.

Appellant team member Eric Johnson had protested from his seat about a statement made by planning director Crabtree about this issue and, on Simonoff's question on that point, came down and forcefully stated that the planner's interpretation was plainly false.

From the baffling to the bizarre, the proceedings lurched toward the inevitable.  Marick made her mild and somewhat unnecessary qualification about some factual aspect to the conditions of approval and expressed her view that the process was heard with great concern for both sides, with fairness and balance and so forth and so on.

After some further commentary by a few members of the council with replies from staff on some questions, principally about projected revenues from property taxes, fire protection, sales taxes and other matters which, in the scheme of things, seemed somewhat incidental, Murdock called for a motion, which was quickly offered and seconded. 

The mayor then asked for a roll call vote and, when Moore was first invited to offer his, he stopped and inquired about the wording--was a "yes" vote for or against the appeal.  After attorney Markman clarified that an affirmative was for the resolution denying the appeal, Moore offered his "yes," followed in short order by Marick, Murdock and Garcia, with Simonoff emphatically stating his opposition.

So, it was done.  Except for occasional guffaws; sighs; exclamations of surprise, frustration and incredulity; and a pointed statements about the upcoming November elections (Moore, Garcia and Murdock being up for reelection then), the proceedings were fairly sedate and ended generally quietly. 

The two-dozen or so opponents of Madrona (who knows how many supporters of the project were there from the community) filed out and made their way to their cars, marveling at many aspects of the process and the fact that, after a decade and a half, the vote finally had happened.

Perhaps, it was inevitable, though a few (present company included) harbored hopes for a 3-2 vote for the appeal and against the project.

There were almost certainly be a lawsuit and some of the irregular, if not downright unlawful, actions at this meeting will be central.  Changes to the project scope and map without proper notification for the appellant, for example, might lead a judge to order another recirculated environmental impact report.

In any case, any prospect of building at Madrona is years away and economic considerations, the next major fire or earthquake and other conditions could change matters. 

Meanwhile, Old Standard will be looking to sell the property as soon as possible.  The rising value of the land will make it hard, though not impossible, for a purchase to preserve the property as open space and, perhaps, a future addition to Chino Hills State Park.  Or, another developer with a better portfolio than the last two owners could acquire it and seek the permits to get Madrona or whatever it would be called down the road built.

At a February speaking engagement, this blogger was talking to a group of audience members afterward.  One of them was a former city staffer who told another individual that Madrona wasn't going to be financially feasible because of the nature of the land and the difficulties inherent in building there.  This is someone who had years of experience with the city and its planning apparatus.

Who knows what is feasible, realistic and achievable with Madrona?

Theoretically, however, the city has probably opened a veritable Pandora's box, giving the green light to a project with an unprecedented three statements of overriding consideration and a dozen conditions of approval; in a "hazardous fire area" as noted on new CalTrans signs along Carbon Canyon Road; next to a road with growing traffic volume and slowing commuter times; in an era and an area of decreasing water supplies, growing fire risk and increasing drought; and concerning in other ways, including the loss of diminishing oak and walnut woodland habitat.

If the city can go this far to give a developer like Old Standard a theoretically or practically developable project, what are the new standards?  What will be the basis of denial for any project in sensitive areas in the city that remain the main locations of future development?  How can the city continue to argue against Shell-Aera's massive proposal for housing in the Puente Hills northwest of Brea given what they've done with Madrona?

Let's not forget, meanwhile, that the City of Chino Hills has already approved 100 houses on its side of Carbon Canyon, with another 102 in the early application stage, but which appear to be entitled.  Those 202 potential units with the 152 (or 162 or whatever Madrona is at the moment), puts the possible total of over 350 houses and some 1,500 or more persons and many more cars.  What will Carbon Canyon become if most or all of these are actually built--though it could be a decade away?

The Madrona saga is not over, but the Rubicon has been crossed.  Will this decision come back to haunt the City of Brea in future years or not?

A short Orange County Register article on last night's proceedings can be found here.

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