Homeless Shelter Ballot Update: “…inaccurate.” “…it isn’t correct.” “…error in judgment…”

San Clemente, CA: An emergency public forum brought to light truth, confusion, and misinformation on the pending Rancho San Clemente homeless shelter.

(Two parcels, totaling 10 acres of land along Avenida Pico, are currently in escrow to be purchased by a homeless shelter operator. Read our previous article here.)

By Arrow Santos

(Note: Jim Wynne and Kidder Mathews are NOT involved with either party in this transaction.)

The Background & Setup

After our original story was posted just over a week ago, we received an overwhelming response from the community. Many individuals were surprised or frustrated that an escrow had been opened with a homeless shelter operator without a public announcement. Others we spoke with were not aware their vote was needed before escrow can close. Multiple business park members even stated they had thrown their ballots away without realizing what was going on. 

“If there was not an error in law, there was an error in judgment here on the part of the board of directors…,” Jon Parry of Bemus Landscape

WynneCRE at Kidder Mathews rapidly organized an emergency question and answer forum with San Clemente City Manager James Makshanoff and Rancho San Clemente Business Park Association Attorney Tom Mauriello. The RSCB Association are the Sellers of the two parcels in escrow. The City of San Clemente does not own the land and is not involved in the potential transfer.

The Outlets at San Clemente and the San Clemente Chamber of Commerce served as sponsors for the event, a special thanks to both for their community support.

The Who & What

Dozens of Rancho San Clemente business owners attended the event on Wednesday, October 9. Below is a full video of the forum. We have also included text highlights with timestamps to jump to that section of the video. Click on the provided timestamps below to watch that specific video clip.

Please note, text highlights include sentences taken from longer answers, and the corresponding responses may have included additional language after or before chosen quotes. Thank you to all the business members who attended on such short notice. 

Jim Wynne moderated the event, asking Makshanoff and Mauriello prepared questions for the first half of the session. The remaining time was open to audience members asking their questions and receiving direct responses on behalf of the City of San Clemente and the Rancho San Clemente Business Park Association.

During this live conversational investigation, various inaccuracies were discovered in the letter and ballot mailed out by the RSCB Association.

The Video

The Questions & Answers

Question 1: The Letter with the ballot from the Association states the two parcels in escrow are within the City’s SB2 homeless shelter zoning overlay. Is that accurate? 4:24

“No, it’s not. The properties are on the north side of …Avenida Pico and those are not in the SB2 zone,” said James Makshanoff.

After Makshanoff answered, Tom Mauriello replied, “Our understanding was the 10 acres are in the SB2 zone. The Buyer’s understanding is that they are in the SB2 zone.”

“It doesn’t show the property,” Makshanoff flatly stated upon examining the zoning map provided to the attendees.

Question 2: The letter states it is unknown how the buyer could circumvent the open space restrictions, how could they overcome the restrictions? 6:57

“…Measure V, which requires any open space in the City, any property designated as open space, if you’re going to develop that space and it’s greater than 1 acre in size then it has to go a vote of the people. And you need the majority of the City of San Clemente residents to develop that property,” explained Makshanoff in part.

Question 3: Could the County take the property through eminent domain to allow a homeless shelter? 9:43

“I guess the County could do that, but would the County do that?” Makshanoff asked. 

He then went on to read an email from Orange County Fifth District Supervisor Lisa Bartlett’s office.

“If the Rancho San Clemente property owners were to approve the sale of the parcels for use as emergency shelter, Supervisor Bartlett would not support any effort to obtain County funding or ongoing shelter operations. Our office has verified that County staff is not in discussions with the Emergency Shelter Coalition and would not commit to using this property for a regional shelter,” Makshanoff read from the email text.

Question 4: The letter states that the association board believes that if a shelter was built on the parcels, it would decrease the likelihood of a shelter being constructed in the business park. How would you describe that belief? 10:49

“I’m not convinced a shelter is inevitable,” Makshanoff shared. 11:39

Makshanoff continued, “We filed an amicus brief recently to have the Supreme Court take up the case of Martin V Boise that has placed a difficulty on Western cities when it comes to enforcement of different camping ordinances and such. We figure we’ll hear sometime later this month, or early November, if the Supreme Court is going to hear that case.”

Mauriello clarified for the audience, “People have been discussing the owner vote as a vote to sell the parcels. It’s not a vote whether to sell the parcels or not. It’s a vote required to terminate the parcels from conveyance and the CC&R’s of the Master Association. It might be a subtle difference, but the Board did not need approval of the owners to vote to sell the parcels." 13:36

“They’ve been tough parcels to get people interested in. We’ve talked to various buyers over the years and those efforts were unsuccessful,” said Mauriello.

Question 5: If the property owners don’t vote to remove the properties from the CC&R’s, is there anything in the CC&R’s that would prevent a homeless shelter from being built? 21:25

Mauriello answered, “My understanding is that the CC&R’s may preclude the development of a shelter, if the land remains within the CC&R’s, for a variety of reasons.”

Question 6: The letter from the Association states that the removal of the parcels from the CC&R’s is a condition of the close of escrow. Could the Buyer choose to still purchase the properties if the parcels are not terminated from the CC&Rs? Does it give them the right to terminate escrow or does it automatically terminate escrow if the vote doesn’t pass? 23:05

“If that condition is not satisfied, the Buyer would not close. Could they choose to waive that condition and close? Theoretically yes, they could, but they won’t. He told me that,” answered Mauriello. 23:35

Question 7: Do they want the CC&Rs waived for the association fees or other reasons? 23:45

Question 8: If the sale takes place and the open space zoning is removed, would the shelter be limited to 35 beds? 24:13

“Seeing as how this property is outside of the SB2 I would think it wouldn’t be subject to that 35-bed requirement…,” replied City Manager Makshanoff.

He later continued, “Mr. Connor [the Buyer] stated to me, and the City Attorney, and Mayor Pro Tem Dan Bane back in February, that he would do 75 beds there to start. When I asked him if the beds would be limited to homeless people from San Clemente, he said that they would start with San Clemente but that there was no guarantees that it would be just for San Clemente homeless people.” 

Question 9: Is the City of San Clemente willing to purchase the parcels from the Association? 26:21

Question 10: If the City were able to acquire the property, what safeguards could be put in place to ensure the property would not be developed as a homeless shelter? 26:35

Listen to Makshanoff’s full answer on placing a conservation easement on the property to not only stop a homeless shelter but also serve as another piece of the puzzle in blocking a toll road route!

Question 11: How is the vote counted? What is the procedure for the secret ballot vote count? 27:52

Makshanoff shared for the record, “The City owns two lots in the business park, and we plan to vote against it.” 28:21

Question 12: The Civil Codes state the ballot is irrevocable. If a property owner already voted but then sees this new information or realizes the letter and ballot are incorrect, what mechanism is in place for owners to change their votes? 28:19

Questions and Answers from the public 29:17

Including:

• Zoning changes?

• Other buyers?

• Eminent Domain from the State?

• Under 1 Acre loophole?

• Missing ballots?

• New vote with corrected ballot information?

• Moving the SB2 overlay?

• Why didn’t the Association provide more details to the public?

• And many more important questions!

  
  

“The letter that went out talked about that it’s less likely for a shelter to go in the business park, and that’s 100% inaccurate.” -Glenn Walker of Walker Insurance Solutions 31:06

-What if the property is developed under 1 acre to avoid a public community vote? 39:37

-Why didn’t the Association provide more information to the community prior to entering escrow with a homeless shelter operator? 40:48

“If in fact it is voted down and that property over there, the 10 acres, will that be up for sale to anybody that would want to buy it and use that for parks and recreation and stuff?” -Jay Longley of Rainbow Sandals 41:46

-With both the City of San Clemente and Olen Properties wanting to purchase the property, is the Association still asking for property owners to approve the current vote, and if so, why? 49:31

“For those who did not get their ballots, how do they get?” -Krisna Macdonald of Matsushita International 55:02

-Dale Lyon, Senior Vice President of Olen has currently submitted an offered to purchase the property and shared they would have entertained an offer originally if they would have known it was for sale. “We’re voting no.” 55:15

“It’s right across the street. I mean it’s going to impact. It’s going to bring an element to the neighborhood.” -Dale Lyon of Olen Properties 59:56

“Is the ballot going to be valid since it isn’t correct? ... everyone who’s voting thinks that this Pico lot is in the SB2 zone but it’s not….” 1:00:40

“If there was not an error in law, there was an error in judgment here on the part of the board of directors…” -Jon Parry of Bemus Landscape 1:04:43

-Can the SB2 zoning be moved to cover the parcels in escrow? 1:10:38

Closing Statement: 1:11:13

The “Now What?”

Several of these questions were left outstanding by the close of the event, with Mauriello stating he will be talking to the Association’s Board of Directors to find answers for these pending topics. 

We urge you to watch the full video above to gain the ultimate insight on this current Rancho San Clemente homeless shelter escrow situation. Ballots must be returned to the RSCB Association for a vote count by October 30, 2019. 

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