The old Jack in the Box at 2959 Upas Street

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.