Sept. 11 2013 09:49 AM

City ultimately chose to be sued by people rather than a huge corporation

Roger Lewis has led efforts to stop Jack in the Box from flouting pedestrian-oriented zoning laws.
Photo by Joshua Emerson Smith

Increasingly, the corner of Upas and 30th streets attracts fashionable North Park residents. Bluefoot Bar & Lounge serves up craft beer and cocktails to thirsty hipsters, while servers at The Smoking Goat next door dish out high-end eats. Across the road, an upscale mixed-use development promises more than two-dozen lofts and a number of new restaurants for the trendy corner.

"The neighborhood's changed significantly in the last 20 years," says Roger Lewis, a longstanding member of the North Park Planning Committee, who's worked to make the neighborhood more pedestrian-friendly. Thanks to his and other residents' efforts, the city zoned the area to restrict auto-intensive uses, such as live-music venues and drive-through restaurants.

However, despite city code, at the center of the up-and-coming intersection stands a newly remodeled, shiny red-and-white Jack in the Box drive-through restaurant. With a squawk box that can be heard until 2 a.m., some residents say the fast-food eatery clashes with the surrounding businesses and adjacent single-family homes.

"Everybody that's been involved with this from the beginning said the issue has been the drive-through," said Lewis, who's led the opposition to the remodeling project. "Jack in the Box was welcome to exist here in the appropriate pedestrian orientation."

After the city amended the area's zoning code in 2000, the more-than-50-year-old restaurant—at 2959 Upas St.— was grandfathered in. But, as a condition, Jack in the Box couldn't make upgrades that cost more than half of the value of the structure without approval from the North Park Planning Committee or an appeal to the city Planning Commission.

Despite failing to get permission from either, the fast food restaurant officially reopened its doors on Monday after months of construction, which stopped just shy of completely tearing down the entire building.

The renovations started in May when the city's Development Services Department permitted the project as a remodel, a process that doesn't require approval from elected officials. However, the estimated cost of the project listed on the permit was about $216,000—far more than 50 percent of the value of the structure, which the county Assessor's Office puts at about $133,000.

Neighborhood residents continue to blast the city, saying leaders failed to enforce the zoning code and allowed the San Diego-based fast-food giant to get away with the project despite exceeding the spending cap.

"They rammed this thing through for Jack in the Box," said Robert Barry, who chairs the North Park Planning Committee's Urban Design and Project Review Subcommittee. "By making it a staff decision instead of a Planning Commission decision, it never came to us. They screwed us, and the city let them."

City leaders disagree, arguing that the remodel didn't require approval from the neighborhood group or the Planning Commission.

"When the permits were issued, I think the city's hands were effectively tied," said City Council President and now interim mayor Todd Gloria, whose district includes North Park.

Gloria said he interviewed Tom Tomlinson, who currently heads the Development Services Department, about the issue.

"I've heard those arguments," Gloria said. "I believe, based on a conversation that I had with our interim director of Development Services, that he's heard that as well, and it's their professional opinion that that's not the case in this project."

However, according to a confidential opinion issued by the City Attorney's office in July, which was given to the City Council and other officials, the citizens may have been right. CityBeat read the document.

"The city attorney said there was a strong likelihood that Development Services Department had used the wrong process in issuing the permit," said Linda Perine, who worked closely on the issue as former Mayor Bob Filner's director of community outreach. "We tried to work with operations and the city attorney to find a solution."

Rather than focus on the idea that the project was improperly permitted, Gloria has criticized Jack in the Box for "manipulating" the city's definition of a "remodel," blaming the project on loose language in the city's code.

"The average person would say tearing down a structure to the point that there's either one wall left or a few studs remaining, that that isn't a remodel," he said. "But under our code, it is. That's the kind of thing that needs to be tightened up."

However, that wasn't good enough for neighborhood residents, who filed a lawsuit in early August demanding that the city shut down the drive-through, maintaining it was improperly permitted.

"Winning the lawsuit will put a lid on problems like this, but the only way to seal the bottle in the future is to get new political leadership that isn't afraid to stand up for the residents and doesn't just pay lip service to them," said the citizens' attorney, Cory Briggs.

The city's Development Services Department declined to comment, citing the ongoing litigation. The City Attorney's office did not respond to questions.

The issue started back in 2011 when the fast-food company approached the North Park Planning Committee about completely rebuilding the restaurant. After the idea was rejected, the company appealed to the Planning Commission. Although Development Services staff recommended approval, the commissioners, in 2012, denied the extensive construction project.

At that point, Jack in the Box applied directly to the city for a building permit to remodel the structure. On May 2, the permit was granted for "extensive demolition of interior and exterior walls and roof structure…." Construction started in June, but by July, city inspectors determined the project had exceeded the scope of its permit. Angry residents contacted the city, and then Filner's staff organized a meeting with Tomlinson and others.

While the city expressed concern with the extent of demolition, Development Services staff argued that the spending cap on the city-issued building permit did not apply because the drive-through was a "feature" as opposed to a "use," said Barry and others who attended the meeting.

"They said the drive-through window is not something that they have control over, anymore than the front door," Barry said. "The jargon is the issue. A ‘feature' versus a ‘use' is a big difference in terms of how it's regulated under the municipal code. A use can be restricted. A design feature is just an aspect of the building."

Filner's staff and neighborhood residents remained skeptical, and the former mayor directed Tomlinson to get an official opinion from the city attorney. Tomlinson sent a memo to Deputy City Attorney Heidi Vonblom on July 3 asking about the legality of the permit. At the same time, Filner held a press conference to announce he was asking the city attorney to sign off on a stop-work order on the project. In July, the City Attorney's office issued the confidential opinion and warned that forcing Jack in the Box to stop construction could lead to a lawsuit.

Filner pushed the idea of the stop-work order, but the city attorney never signed off on it. In an Aug. 1 letter to neighborhood resident Vicky Heithaus, Lee Burdick, Filner's chief of staff, wrote:

"The Mayor directed the issuance of a stop work order on this project precisely because the City Attorney had opined that the process used to issue the permits was inconsistent with the City's Land Development Code ("LDC"). However, under the LDC, a stop-work order must be approved by the City Attorney's office…."

Eventually, Filner's sexual-harassment scandal distracted from the issue and construction was allowed to move forward.

In a last-ditch effort to block Jack in the Box from operating the drive-through, Filner on Aug. 29 issued a different kind of order, a stop-use order. However, upon taking over the Mayor's office, Gloria immediately rescinded it, arguing that the move exposed the city to legal attack by the fast-food giant. The city had to choose whether it wanted to be sued by Jack in the Box or the neighborhood residents, and Filner sided with the residents, Perine said.

"The duly-elected mayor, under excruciatingly difficult circumstances, made the right decision and issued the stop-use order," Perine said. "He chose to protect the neighborhoods and the community-planning process, to honor the rule of law and use the code properly for the benefit of the citizens of the city—not the bureaucracy, not the moneyed interests."

Because of the residents' lawsuit, a judge will likely weigh in on whether the project violated city code or if the rules can be interpreted as officials maintain. In the meantime, North Park residents have a gleaming new Jack in the Box to remind them of the question: Is it our laws or our leaders that are inadequate?

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