By Shawn Raymundo
A handful of former city officials continue to voice their opposition to the San Juan Capistrano City Council’s recent decision to negotiate with the developer of a proposed camping and “glamping” site on San Juan Capistrano’s Northwest Open Space.
One of those officials, former councilmember Mark Nielsen, has proposed the idea of taking legal action against the city if it doesn’t allow the public to vote on a potential zone change should the city council move forward with Red Tail Acquisitions.
In early March, the city council voted, 4-1, in favor of going into exclusive negotiations with Red Tail Acquisitions, which has proposed implementing a “traditional camping and ‘glamping’ destination” on part of the site.
Nielsen said he’s been working to “inform the public that this is not an appropriate use of the Northwest Open Space without a vote of the people.”
While actively speaking out against the plans, Nielsen has pushed for a public vote under Measure X, which is triggered when there’s a zoning change request from General Plan Open Space to any other designation.
Currently, the Northwest Open Space is classified as “community park” under the General Plan Open Space Land Use designation. There are several classifications under Open Space Land Use, including “open space recreation,” “community park,” “general open space” and “neighborhood park.”
If Red Tail successfully negotiates its plan, it would need to request a classification change from “community park” to “open space recreation,” according to the city. The city has stated that this situation wouldn’t trigger a Measure X vote, because the potential development calls only for changing the land use classification and not the General Plan designation.
Nielsen explained that should the city make a formal decision to proceed with Red Tail without a public vote, he would simultaneously organize a referendum to overturn the council and file a lawsuit, possibly compelling the city to initiate a Measure X vote.
According to the city, voters can challenge legislation approved by the council through a referendum, or petition process, and must be completed within 30 days of the council’s approval.
Nielsen explained that in order to protect the open space from any initial stage of development, he intends to conduct both actions simultaneously because of the time restraints associated with each method.
Rather than submitting a referendum first and seeing how it plays out before filing a lawsuit, Nielsen said the city could have already begun moving forward, allowing the beginning stages of construction.
“If you wait a long period of time, it can create a problem,” he said. “If the city is moving forward . . . as an example, if they’re moving aggressively forward and allow someone to start construction—anything like that—you don’t want to be in a position for them to do so because you haven’t instituted proper safeguards.”
Mayor Pro Tem Troy Bourne, who introduced the motion during the March 5 council meeting to negotiate with Red Tail, said the threat of a lawsuit over the issue “saddens” him, as he campaigned on reducing the city’s legal expenses and exposure to litigation.
“Mark knows that we have not voted to take any action on the Northwest Open Space. We’re simply trying to get as much information as we can about our options so that we can make an informed decision later this year,” Bourne said in an email. “When we have that information, it will be presented to the public, and I hope they will be very engaged in the decision process. They certainly have more of a vested interest in the outcome than Mark’s lawyers.”
In response to Nielsen’s comments about pursuing legal action, Assistant City Manager Jacob Green said in an email, “The City and legal counsel are still reviewing and analyzing all input received from the public during the Council meeting on March 5.”
Nielsen argues that even though this negotiation period is only meant to allow the council to explore the plans in greater detail and no formal decision has been made, the idea of allowing negotiations in the first place means the council is already considering developing the land.
“If they basically recognize that the land should be preserved as open space, that the intention was to keep that as open space, then there’s no purpose in investigating (and saying), ‘Well, let’s look at what would happen if we did that,’ ” he said.
During San Juan’s weekly Coffee Chat at Hennessy’s Tavern on Friday, March 29, much of the conversation gravitated toward the potential use of the open space. Former councilmembers Kerry Ferguson, Laura Freese, Tom Hribar and Nielsen each had turns expressing their concerns with the potential development.
Freese said it’s important for newer residents of the city to understand why the Northwest Open Space is a significant piece of land for the rest of the community.
“It’s important that people know that it was not done by the seat of our pants, and was instead well thought out and voted on,” Freese told The Capistrano Dispatch. “People have to know how important things like open space are to the people of SJC, that they would vote to tax themselves.”
The open space was purchased in the early 1990s through the voter-approved Measure D Open Space Bond measure. The principal amount of the bond debt was $21 million, which was paid off in August 2017.
According to the city, the purpose of the bond was “to acquire lands for park, agriculture, open space, and related uses, in order to save these lands from potential residential and commercial development and to develop youth, senior and other community facilities.”
When asked whether she would support a legal challenge over the Measure X vote, Freese said that’s where she would draw the line.
“I am an anti-lawsuit type of person,” she said. “I agree with their philosophy that we fought too hard to let this go on the wayside; I’m on their side on that, but I don’t do lawsuit . . . all it does it cost the taxpayers money.”
Mayor Brian Maryott, who voted against negotiating with Red Tail, also attended that Friday Coffee Chat, during which he echoed the chorus of frustrations over the proposal. Maryott also used an expletive to describe the argument that the city needs to develop the site to bring in much-needed revenue to pay for other projects such as the planned skatepark.
The city, he noted, is expected to receive Transient Occupancy Tax revenue from the Inn at the Mission luxury hotel that’s supposed to open later this year, as well as a $3 million payment from the County of Orange over its extended use of the Prima Deshecha Landfill.
While prefacing that he likes his fellow councilmembers and enjoys working with them, Maryott stated that “this council does not value open space for the sake of open space.”
The city has also planned to construct the community park project called Putuidem Village on a portion of the open space site as a cultural center honoring the Native American tribe, the Acjachemen Nation, also known as the Juaneño.
During the April 16 city council meeting, city staff is expected to present conceptual designs of the project for review.