Jan. 28 2013 01:37 PM

Judge tentatively rules that City Council approval broke municipal law

Irwin Jacobs, with wife Joan
Photo by David Rolland

"Yes, risk taking is inherently failure-prone. Otherwise, it would be called sure-thing-taking."
—Jim McMahon

Could this coming Friday mark the end of the road for Irwin Jacobs' contentious $45-million makeover plan for Balboa Park?

No one yet knows for sure, but a tentative ruling issued last Friday in a Superior Court case pitting the city and the Plaza de Panama Committee, which is led by Qualcomm co-founder Jacobs, against local preservationists and their supporters would likely, if upheld, present a major setback.

In a seemingly anguished preliminary ruling, Superior Court Judge Timothy Taylor concludes that while the months-long public deliberative process over the controversial park remodel project was adequate, the city "abused its discretion" by finding that "economic hardship" would result if the plan were rejected.

In the city's Municipal Code, "economic hardship" is defined in this case as "no reasonable beneficial use of the property," and it was this finding that a majority of the San Diego City Council invoked to justify altering the historic park when it approved the project in July. The project would return the plazas de California and Panama to pedestrian use while redirecting vehicular traffic over a new bypass bridge from the west to a massive new garden-topped, submerged, paid-parking structure behind the Spreckels Organ Pavilion.

But in his tentative ruling—which could become final this Friday—Taylor shreds the city's case.

Referring to the arguments the city and committee put forth that denying the project would someday affect the regional economy or lead to untenable future road conflicts between vehicles and pedestrians, Taylor wrote, "Setting aside for the moment the inherently speculative nature of such predictions, these arguments seek to add words to the Municipal Code that are not contained therein."

Relying on such "future facts," the judge said, is "largely beside the point."

"Parking lots are a lawful and reasonably beneficial use, even if an undesirable one," he said. "The critical finding by the City Council is so lacking in evidentiary support as to render it unreasonable; it must therefore be set aside."

Project proponents will have their opportunity on Friday to argue otherwise before Taylor, but the task seems uphill and the mood murky.

City Council President Todd Gloria, an exuberant Jacobs-plan supporter whose district includes Balboa Park, called the tentative ruling "a blow to the people's dream of polishing our city's crown jewel in time for the 2015 centennial celebration."

He added: "This is a sad day for those of us who understand the need to reclaim precious parkland from cars and give it back to the people for their enjoyment. While this is no doubt a setback, I am confident dedicated San Diegans will continue to selflessly champion needed improvements in Balboa Park just as they have for nearly 100 years."

Bruce Coons, executive director of Save Our Heritage Organisation (SOHO), the local preservationist group that filed suit in August challenging the council decision, offered a different perspective. "We are thrilled with the court's strong tentative ruling regarding the city's abuse of discretion in violating its Municipal Code, and we look forward to the final ruling Feb. 1," Coons said in a statement.

"This ruling," Coons continued, "will allow SOHO and other stakeholders to achieve the long-held goal of eliminating parking in Balboa Park's Plaza de Panama in a non-destructive and un-intrusive way, while protecting the Balboa Park National Historic Landmark District that we all cherish."

Coons gave credit to the "tens of thousands of San Diegans who agreed that the historic integrity and character of Balboa Park's landmarked structures, gardens and open space must be preserved. This important victory is yours."

The judge seems aware that his ruling, if made permanent, will have significant consequences. "Not lost on the court is the very real possibility that this decision will cause [the committee] to abandon its efforts to raise money for a long-desired project in Balboa Park," he wrote, "and at a minimum render very difficult a centennial celebration along the lines hoped for by so many."

But it's clear that Team Jacobs won't go down without a fight. Gordon Kovtun, program manager for the Plaza de Panama project, told Spin Cycle that "we are disappointed with the opinion related to the finding of ‘reasonable beneficial use' of the car-dominated plazas. The court recognized in its ruling that the Plaza de Panama project's benefits far outweigh its impacts, that the environmental-impact report's consideration of the alternatives was ‘above reproach,' and that SOHO's opposition is ‘short-sighted.'

"We believe that the court's tentative ruling on the use issue is in error, and our attorneys intend to vigorously present our case to the court during oral arguments Friday."

Asked if Jacobs will pull the plug on the project if the ruling stands, Kovtun hedged. "It is too early to say what action would be taken in the face of the final ruling. As the judge said, it would be a sad day if we were to lose this opportunity."

He added that, to date, the committee has spent more than $8 million on design work, environmental studies and community outreach on the project.

Spin Cycle reached out unsuccessfully to the offices of Mayor Bob Filner and City Attorney Jan Goldsmith for their take on the preliminary ruling.

Filner is likely giddy at the prospect that a massive project pushed so feverishly by the previous administration may be heading to the trash heap. Last month, the new mayor told a Hillcrest crowd, "I hope that the court finds with the historical SOHO and some of those who want to save Balboa Park, but I've got to follow whatever the court says."

Could this mean yet another testy visit by Filner to City Council chambers in the near future to theatrically demand a fork be put in the Jacobs plan? As Judge Taylor said, "future facts" are hard to predict.

Update: Moments after posting this story, we received this emailed comment from the City Attorney's office:

"We thank Judge Taylor for the early tentative ruling. We call them 'tentative' rulings because they can be changed. Judge Taylor's advance ruling will allow both sides to focus on the key issue.

"Friday's hearing will have an impact in Balboa Park for generations to come and will determine whether the City can free up this jewel for pedestrians as envisioned by the City Council."

Update 2: On Monday, Feb. 4, Taylor upheld his tentative ruling.


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