July 17 2013 08:27 AM

Developer began construction of apartments even though aware of code violation, evoking memories of its too-tall tower

Construction of Sunroad’s apartment complex underway
Photo by David Rolland

    At some point by January 2013, developer Sunroad Enterprises had started construction on two apartment buildings in Kearny Mesa despite knowing for months that the projects didn't comply with state building code. Opting to ask for forgiveness rather than permission, the developer then lobbied the City Council—in February 2013—for a workaround to a problem first raised by the city more than a year ago. 

    The development was ground zero in a political firestorm that got San Diego Mayor Bob Filner in hot water a few weeks ago for accepting $100,000 from Sunroad on the city's behalf in an attempt to make things right after Filner objected to how the City Council handled the project.

    Sunroad designed its Centrum apartments, located between Spectrum Center Boulevard and Lightwave Avenue just east of Highway 163, with two 6-foot "fire separation" buffers between the two apartment buildings and a public park that was built in the middle. California Building Code requires a 15-foot separation.

    The discrepancy was noted in April 2012 during a routine city inspection. However, Sunroad never addressed the issue. Instead, within months, the developer started devising a way to bypass the potential code violation. On June 7, consultant Churchill Engineering, Inc. sent a letter to Sunroad Vice President of Development Tom Story discussing a possible workaround.

    "Our opinion is that the park should be considered as a public way for determining the fire separation distance for both buildings facing the park," wrote company President James Churchill. 

    Construction was underway by January—CityBeat hasn't pinpointed the exact date of the groundbreaking—and Sunroad waited until February to approach the city with an alternative way to resolve the issue: Story's  plan was for the City Council to grant two 9-foot easements on either side of the park, barring the city from ever building structures within the easements. Those easements plus the 6-foot buffers that already existed got Sunroad to the required 15-foot separation. 

    Story, who hung up on a CityBeat reporter when contacted for comment, worked closely on the fix with City Councilmember Lorie Zapf, who represents the district that includes Kearny Mesa and chairs the City Council's Land Use & Housing Committee, which endorsed Sunroad's request in March with little discussion, sending it on to the full City Council. In April, the council unanimously approved the easements—as well as a waiver of a council policy that would have made the easements illegal—although Councilmember Marti Emerald raised objections to what she called a give away of public land without compensation.

    A spokesperson for Zapf declined to comment because the project is now the subject of litigation. Attorney Cory Briggs has sued the city and Sunroad over the development.

    "I see this pattern over and over," Briggs said. "This is how business gets done. This is developers and politicians behind the scenes, dressing things up to look a certain way."

    Briggs' lawsuit alleges a "pay-to-play scheme" and argues that the mayor and City Council gave away public property in violation of city policy and without sufficient public vetting.

    "These politicians only give a damn about the public when it's convenient for them," Briggs said. "They're Sunroad, the ones who built the building that was too tall. At what point do you say there's a culture of corruption?" 

    In 2006, Sunroad built an office tower adjacent to Kearny Mesa's Montgomery Field airport, despite knowing the structure's height violated Federal Aviation Administration safety standards. The developer refused to admit it made a mistake, arguing it only found out about the federal restriction shortly before construction was scheduled to take place.

    Story, who'd served as a deputy planning director for the city and then chief-of-staff to former Mayor Dick Murphy until Murphy's resignation, was the liaison for that project, as well.

    Then-Mayor Jerry Sanders initially went to bat for Sunroad, but, ultimately, in 2007, the developer was forced to remove the building's top two floors, paying roughly $1.1 million to give the structure a 20-foot haircut. Sunroad countered by suing the city for $40 million, but a superior court judge dismissed the case in 2009, admonishing the developer for creating a public hazard.

    For Briggs, Sunroad's cavalier behavior is telling.

    "It's not just that things are not working quite right," he said. "People get used to it. People accept that as a norm."

    Briggs sued after Filner was harshly criticized by some City Council members and others for the Mayor's office's role in what was either a payment or a donation made by Sunroad to the city. Filner had vetoed the council's vote to grant the easements, arguing that the city was giving away land while subverting proper administrative process, and checks totaling $100,000 came after Filner signaled to the council that he would not object to an override of his veto. Filner wanted to use the money on two of his favorite projects—an Aug. 11 bicycling event and a veterans plaza in Ocean Beach. He eventually gave the money back to Sunroad.

    Write to joshuas@sdcitybeat.com or follow him on twitter at @jemersonsmith.


    See all events on Tuesday, Dec 6