“What a bunch of crap!” San Diego City Councilmember Jim Madaffer raged into the microphone at a public hearing last week. He and his colleagues were listening for a third time in as many months to opponents raise complex environmental arguments against hotelier Doug Manchester's proposed waterfront development at the Navy Broadway Complex, located where Broadway meets Harbor Drive. Madaffer, a supporter of the project from the beginning, ran out of patience.
The opponents “hate this project,” he railed. “They use this as a charade, and it's an excuse and it makes a mockery of this process at City Council.”
Well, yes and no. Sort of. Judging from public comments made during the last two years, members of the San Diego Navy Broadway Complex Coalition really do seem to hate the project, but they take it, as well as the process of attempting to stop it, very, very seriously. They see the project as too big, too obtrusive and too targeted at tourists rather than native San Diegans. They note that the real estate at the western end of Broadway represents one of the last undeveloped pieces of the downtown waterfront and argue that it should be planned with more care and an eye toward public use. They've accessed every weapon in their arsenal—from lawsuits against Manchester, the Navy (which controls the property) and the city to exploiting every possible avenue of appeal to stop it. Armed with new information, obtained through public-record requests, about polluted groundwater and the danger of a terrorist attack on a major Navy command post, they think they have a pretty good case.
Legally speaking, the conflict between Manchester and his opponents centers on the question of whether an environmental assessment conducted back in 1992 should still be valid today. Back then, the Navy and the city shook hands on a deal that gave the city limited authority over the development. No one liked the squat, ugly warehouses and office buildings on the site then, just as no one likes them now. As per standard procedure, the city and the Navy conducted environmental studies of the potential impacts of a new Navy headquarters building using a hypothetical development and projected demographic data. The project languished for 11 years. Then, in 2003, the agreement was extended. Finally, in 2005, under pressure from the Pentagon to use the land or lose it, the Navy picked Manchester to redevelop the property.
In exchange for building the Navy a new headquarters, Manchester got the right to do with the rest of the land what he wants in order to recoup his expenses and turn a profit. His proposal includes four buildings with 3.5 million square feet of office and hotel space, the million-square-foot Navy headquarters, an underground parking garage and a one-acre park. The project fits within the possibilities envisioned in the 1992 environmental study, and downtown's growth has actually been slower than what was imagined. Therefore, Manchester argues, why take the time and expense to do a new study?
Much to the frustration of opponents, the 1992 agreement, read narrowly, sacrifices much of the city's ability to influence the project. It limits city involvement to supplying permits and making sure the project fits within the broad guidelines of something known as the North Embarcadero Visionary Plan. By agreement, even that determination can be made only by the board of the public-private Centre City Development Corporation, which oversees downtown redevelopment. However, any vote made by that body can be appealed to the City Council, which is how Madaffer and his colleagues came to listen to arguments for hearing a full appeal last week. They voted against hearing it in a 6-2 vote.
“There isn't a person on the City Council who isn't frustrated by this,” City Council President Scott Peters told CityBeat. “But we have to follow the law. If we heard the appeal, we open ourselves to a potentially damaging lawsuit.”
Peters is concerned about a part of the 1992 agreement that says “approval shall not be unreasonably withheld,” a legal vagary that makes challenging the project difficult.
At the hearing, Councilmembers Kevin Faulconer and Ben Hueso echoed a similar theme, expressing how much they wish they could make changes to the development, if only their hands weren't tied.
The two members in opposition, Donna Frye and Toni Atkins, counter Madaffer's ire with fury of their own, outraged at the notion that the San Diego City Council gets no say on such an enormous project. Atkins in particular looks back in disbelief on her vote in 2003 to extend the terms of the 1992 agreement.
“Ask the other council members if they understood that they would have no ability to talk about the project. I didn't,” she said. “I can't believe we don't get to get involved with this again. That's just not right.”
Though the project must get city permits, development officials, not the City Council, will make those decisions. These appeals are the only way the council can weigh in at all. Which is exactly the strategy of the NBC Coalition. If the group can blow enough holes in the 1992 study, the City Council would be forced to hear and even maybe uphold an appeal.
One issue that resonated with Atkins and Frye was the question of wastewater removal. The 1992 study said the groundwater beneath the site was not polluted. But a 2004 Navy study found that, in fact, heavy metals and petroleum had seeped into the earth. When construction crews dig foundations for the underground parking garage and the towering office structures, their holes will fill with polluted groundwater. The proposed options are to pump it into the city's sewers (which is illegal by local ordinance) or to pump it into the bay (which would require a hard-to-get permit from the San Diego Regional Water Quality Control Board). The Navy did not respond to calls for comment, but when Frye asked at the hearing how the groundwater problem would be dealt with, a Navy official responded, “I don't know.”
Then there's the problem of terrorism. Documents obtained by the NBC Coalition include an e-mail from regional Navy commander Admiral Leendert Hering.
“Let's stay on message with this,” Hering says in the e-mail. “It is no different than any of the hundreds of other high profile buildings across the country.”
But the building will be the headquarters for the entire Southwest regional command. The project's opponents argue that regulations detailed in the federal Anti-Terrorism Force Protection (ATFP) guidelines have specific requirements for military buildings not on military bases. Among other concerns, the guidelines appear to indicate that the headquarters would need to be set 148 feet off from the street, nearly twice as much as current plans have it set (82 feet).
Neither the ATFP nor the groundwater issue will necessarily doom the project, but NBC Coalition attorney Cory Briggs and his companions argue that, taken together, they show that a lot has changed since 1992.
As an added wrinkle, even the Navy seems to be aware that the study needs updating. Internal e-mails show that Navy officials understood the need to “update and validate” the 1992 analysis with new data. But last fall, internal e-mails and public documents related to the study stopped using that term after an outside consultant told officials that the phrase indicated the need for a new, more detailed environmental review than the Navy wanted to conduct. Even more recently, according to e-mails obtained by CityBeat, lawyers for the Navy had agreed to settle the lawsuit brought by the NBC Coalition by agreeing to do three specialized studies. But the day after lawyers reached an agreement, Navy senior officials withdrew the offer.
Environmental studies require public meetings and time to respond, and, as Manchester's representatives and Admiral Hering have already said, the delays stemming from the appeals have already cost millions of dollars. Neither the Navy nor Manchester wants any more delay, and Manchester has sued to prevent any more appeals. As Council President Peters indicated, if the City Council took up the appeal, the litigious Manchester would likely sue again.But Atkins seems to think this is a fight worth fighting. “We're the City Council; we should be the authority to take this on,” she said. “I don't want to be sued, either. However, this is our waterfront. If ever you're going to have to defend a lawsuit, this is a time to be prepared to do that.”
In the meantime, the NBC Coalition plans to keep appealing at every opportunity.
“We hand them the keys to the handcuffs they've put on themselves,” Briggs said of the City Council. “They aren't willing to turn the key.”