The old Jack in the Box at 2959 Upas Street
  • The old Jack in the Box at 2959 Upas Street
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A group of North Park residents will have another chance in court to show that fast-food company Jack in the Box illegally rebuilt a restaurant against current zoning regulations. On May 23, appellate judges from California's Fourth District Court reinstated the lawsuit, granting residents their day in court.

As first reported by the Reader in February 2012, residents became worried when learning that the company was looking to remodel a 1960s era restaurant at 30th and Upas streets in North Park. Residents had long complained about loud noise from the drive-thru, litter on the streets, and late-night delivery trucks idling outside their homes. And while newly adopted zoning laws prohibited drive-thru restaurants at the location, the restaurant was exempt because it had been built long before those laws were put into place. There was one condition: the exemption would not apply if any exterior walls were demolished or moved.

In May 2013, against the wishes of the North Park Planning Group, the city issued permits for what was said to be a remodel of the interior and a reconfiguration of the drive-thru. A few weeks later, to ease residents' concerns about an interior and exterior remodel, a construction manager for Jack in the Box penned a letter to community planning chair Vicki Granowitz. That letter assured them that crews would not be "demolishing any exterior walls."

Weeks later, residents were surprised to see exterior walls knocked down.

In July of 2013, unbeknownst to residents, the city's Development Services Department amended the May 2013 building permit to include "exterior wall adjustments, and footing alterations."

Residents contacted then-mayor Bob Filner's office to complain. Filner's chief of staff, Lee Burdick, responded by saying Filner had wanted to issue a stop-work order but had been unable to get city attorney Jan Goldsmith to sign off on it.

"The more we look into the processing of this application, the more frustrating it is for us and, I am sure, for you and your neighbors," reads the August 1, 2013, letter from Burdick. "...After the Development Services Department forwarded the mayor’s request for a stop‐work order to the [city attorney] for review and approval, [Goldsmith] advised that Jack in the Box was too far along in the construction, the company would likely sue the city if we stopped the development, and they very well might win."

On August 12, 2013, left with few options, residents hired attorney Cory Briggs to file a lawsuit on their behalf. The suit was filed 102 days after the May 3 permit was issued.

During the discovery phase, the city denied requests from Briggs for an original copy of the May 2013 permit that granted demolition of some exterior walls. The city and Jack in the Box refused to provide a copy of the May permit but produced an amended permit issued on July 29, 2013.

Despite the lack of original permits, court judge Ronald Prager dismissed the case because the 90-day statute of limitations on city decisions had expired.

The residents appealed. Yesterday (May 23), appellate court judges reversed Prager's decision, thus sending the case back to a trial court. In their ruling, appellate court judges blasted the city for failing to turn over evidence.

"...City did not present key evidence — the contents and scope of the building permit assertedly issued on May 2, 2013 — with its moving papers, depriving [residents] of an opportunity to respond to that evidence. Instead, city presented a copy of what it claimed to be the original permit for the first time as an exhibit to its reply papers, and argued, also for the first time in reply, that the May 2, 2013, permit reflected the scope of authorized construction."

Appellate court judges added, "Coalition's evidence suggests, and a reasonable fact finder can infer, that the original permit did not encompass demolition or movement of the exterior walls, but that those changes were authorized on July 29, 2013. Thus, City's arguments as to the scope of construction authorized by the May 2, 2013, permit were not pure legal arguments based on undisputed facts, but constituted a disputed factual matter."

Residents will now have their day in court and Briggs will continue to ask the city and Jack in the Box to hand over a copy of the May 2013 permit.

"It is impossible to believe that [Jack in the Box] started its 'remodel' without having the original version of the permit in hand," says Briggs. "All signs point to the City and/or Jack in the Box destroying inconvenient evidence. Fortunately for the public, the appellate court is going to let my client test that hypothesis."

A trial date has not yet been set.

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Comments

tabasco70 May 24, 2016 @ 5:43 p.m.

Most likely fact is that very few of the people who live there, were there when the Jack-in-the-box was originally built. But, this isn't unusual, because people move from location to location within five years. Something that was built over fifty years ago should be grand fathered. In fact, the regulation prohibiting fast food restaurants, is circumspect, because it says that business is less desirable than some both the other businesses in the area. It is a clear case of discrimination after the fact. It is my opinion, that any business that was there before the adoption of the regulation, should be able to do what is considered to be necessary, in today's business environment. If this means re-building the restaurant, then let it be so. This is exactly the position of the city, in my opinion. Any court worth its salt to make a correct decision, should willing to give an affirmative to the desires of Jack-in-the-box, and the city as licensing government agency. However, I do see what the problem is here, and an effort should be made to buy the property at a fair market value, that surrounds the fast food restaurant. If any property owner who doesn't want to sell their property, then they should live with conditions now being lived under.

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AlexClarke May 25, 2016 @ 6:26 a.m.

It seems to me that Jack in the Box (Jack) and the City were saying one thing and doing another. The original permit was issued by the City and Jack confirmed the scope of work and that it would not include moving exterior walls all the while Jack and the City knew that the original permit would be modified without any notice to the North Park Planning Group. Sounds like an end run to me.

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Founder May 27, 2016 @ 9:54 a.m.

tabasco70 — You are either missing the point of the JIB protest or you don't care about what is fair to all those that now have to deal with the fact that JIB changed "the deal" illegally!

FACT: JIB broke the Zoning regulations, after being warned and/or told many times, at many meetings, by many local groups that NP's current zoning laws meant that they could not tear down their exterior walls and rebuild if they wanted to retain their drive-thru.

JIB decided to do it anyway and gambled that they were too big to oppose, since they have lots of money for lawyers! Now, after forcing the local residents to foot the lawyer fees to get their day in court, JIB is going to end up telling the Judge, why they decided to break the law.

The City of SD is also going to have to release construction related documents (that have not yet been released) describing was permitted and just as important, when they were issued.

As far as buying up the surrounding residential property, why should home owners get forced out of their homes just so JIB can break the law and expand their business "footprint," when they knew that local zoning rules prevented them from doing it?

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Founder May 25, 2016 @ 1:39 p.m.

Amazing News! All those that helped raise the money (one donation at a time) to fund this lawsuit will now see that they were wise to help fight this "steam roller" deal that might just make Jan Goldsmith look BAD, since he failed to stick up for all the residents of North Park that not only attended many "facilitated" Jack in the Box (JIB) meeting but also the NPPC meetings where the results were always the same, "Rebuild if you must, BUT DO NOT TEAR DOWN THE OUTSIDE WALLS BECAUSE THAT IS NOW ILLEGAL.

JIB thumbed their nose at NP and decided to tear down the walls (which made installing a new drive thru illegal) and also put pressure on the City to have someone give them an illegal permit... Now the City is covering up their part in this debacle by telling everyone that they cannot release any documents (even though they are public records).

Times are a changing as Bob Dylan said long ago, and since NP residents can now afford a lawyer, it looks like they will not only get their day in Court but will also wind their protest against JIB, which will send a strong message to Developers of all sizes, "Obey the zoning in North Park or you will face the legal consequences!

For all those that have not been following this issue, I urge you to use the links provided and find out why the people of NP are so enraged that JIB thumbed their nose at NP.

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