Jan. 28 2015 10:14 AM

Critics claim change belies smart-growth planning

RogerLewis
Land-use activist Roger Lewis, at the courthouse before a hearing in the Jack in the Box case
Photo by Joshua Emerson Smith

If the San Diego City Attorney's office gets its way, a judge will never rule on whether Jack in the Box and the city duped the public. Residents argue that the fast-food giant's North Park drive-through was improperly permitted by the city, but a lawsuit brought on their behalf may get tossed on a technicality if a judge finds it was filed several days too late.

In a last-ditch effort to prevent this, public-interest attorney Cory Briggs stood before San Diego Superior Court Judge Ronald Prager on Friday and relentlessly argued for his client, the North Park Preservation Coalition. Repeatedly referencing the roughly two-dozen residents who packed the courtroom, he made the case that the city and the corporation had consistently misled the public, which resulted in the timing of the lawsuit.

One of those residents in attendance was independent land-use professional Roger Lewis. While a ruling could be appealed, Lewis seemed, if not resigned, somewhat cynical. A former member of the North Park Planning Committee, for years he's led the charge against what he sees as a pattern of improper permitting by the city in his neighborhood.

"People always complain about how hard it is to move something through the city's Development Services Department, that they get dinged on everything in the code," he said. "And what's resonated with the people in the community is that there's a different set of rules for the larger players."

While waiting for the judge's decision, Lewis and others now face a more fundamental fight. In response to the lawsuit, the city recently drafted changes to the rules that critics fear will make it even easier for businesses such as Jack in the Box to avoid conforming to so-called principles of "smart growth" that are written into the rulebook, the city's land-development code.

The proposed fix is "almost laughable," said Rick Pyles, a central figure in the North Park Preservation Coalition and board member of the neighborhood's planning committee. "It closes some of the doors to abuse, but will surely allow circumventing zoning and land use."

Folks such as Lewis and Pyles advocate for pedestrian-friendly neighborhoods with lively sidewalks and a reduced reliance on cars. And they're not alone in their vision of the urban village. Smart-growth principles were enshrined not only in the land code, but also in the general plan, the city's guiding land-use document, dubbed "City of Villages."

In 2000, the land code was updated to restrict in certain areas uses seen as antithetical to the urban village, including drive-through restaurants and gas stations.

Businesses that predated the changes were grandfathered in as "previously conforming." If an owner of such a business wanted to spend more than 50 percent of the assessed value of the property on renovations, he or she would need to go through a public process. In order to get approval for construction, a business owner could be forced to make concessions to the local planning committee.

Now, under Mayor Kevin Faulconer, the Development Services Department (DSD) has drafted a revision to the code that, among other changes, removes that stipulation. Under the draft changes, the public process would now be triggered if 50 percent of a structure's exterior walls are removed.

The new regulations are designed to avoid the types of disputes that led to the Jack in the Box lawsuit, Amanda Lee, a DSD project manager who worked on the draft language, said in an email.

"It will provide greater certainty and predictability to the permit process," she said. "This is because the exterior walls of a structure and any proposed demolition or removal of those walls is quantifiable and measurable on a set of construction plans and can better measure the physical extent of the construction more objectively."

That logic provided little comfort for Lewis, who said the changes would substantially weaken the ability of neighborhoods and local planning groups to phase out unwanted land uses.

"They're allowing them to rebuild in perpetuity," he said. "The walls are just a smoke screen. People can go to court until the cows come home over whether a wall's been removed or not."

The North Park Planning Committee sent a letter to the city expressing concerns about the proposed change. However, as of CityBeat's press time, the Community Planners Committee (CPC), which oversees all local planning committees, has yet to oppose the revision.

The land code is not intended to phase out previously conforming uses, said Joe LaCava, chair of the CPC. "All we can really do is aspire to the kind of neighborhoods we want and hope the property owners or merchants will see that and eventually change."

However, the draft update to the land code would also tighten up some important regulations, said Vicki Granowitz, chair of the North Park Planning Committee, who worked closely with the CPC to review the changes. For example, it restricts the operation of a drive-through window to between 6 a.m. and midnight, giving previously conforming businesses seven years to come into compliance. The Jack in the Box drivethrough window in North Park is currently open until 2 a.m.

"From a pragmatic point of view, your choices are to fight for what is not going to be possible or to look at what they've given us and push to make that as strong as possible," she said. "And, to that end, we've got them to add things."

In coming weeks, the Mayor's office will send the draft changes to the Planning Commission. The City Council will then have final approval.

While Lewis and others are frustrated with the changes, few are surprised.

In 2007, when Kentucky Fried Chicken abruptly tore down and rebuilt its North Park restaurant, residents and the local planning committee called for the previously conforming business to relocate next to the sidewalk in accordance with the code. Instead, the city allowed the fast-food chain to keep a parking lot out front.

Then, in 2013, when Jack in the Box rebuilt its restaurant on Upas Street, residents and the planning group argued that the previously conforming business should be forced to remove its drive-through window to conform to the code. However, Jack in the Box wasn't willing to comply, and the business appealed the decision to the Planning Commission, which also unanimously rejected the project.

The city then quietly approved a permit for construction. The renovations proposed by the fastfood chain cost significantly more than 50 percent of the assessed value of the property, which the City Attorney would later opine likely violated the code. However, because the project had been approved, the City Attorney also concluded that Jack in the Box could sue the city if it wasn't al lowed to continue construction.

At the time, City Councilmember Todd Gloria, who represents North Park, denied the city bent the rules for Jack in the Box, arguing that ambiguity in the land code caused the controversy. After the situation came to a head in the fall of 2013, he called for staff to draft changes to the code.

The idea that the stipulation based on assessed value could be manipulated was something that the North Park Planning Committee has debated, Granowitz said.

"On one hand, people felt like the valuation was difficult to nail down to something specific," she said. "They felt like it could be manipulated. Others felt like the only way to keep the city honest is have both provisions."

Lewis doesn't see it that way. It's clear that the city violated its own rules, and if the lawsuit against Jack in the Box and the city ever makes it to court, the community will be vindicated, he said.

"If what our elected leaders tell us they're doing on our behalf is something that we can't believe in," he asked, "then where are we as a city?"

Update: San Diego Superior Court Judge Ronald Prager recently ruled in favor of the city of San Diego and Jack in the Box, dismissing the lawsuit by the North Park Preservation Coalition, which challenged a building permit issued to the fast-food company for a drive-through restaurant. The Judge found the coalition failed to file the suit within a 90-day statute of limitations, which started with the city's issuance of a permit on May 2.

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

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