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Lawyers for fast-food chain Jack in the Box and the City of San Diego have crafted their defense to a lawsuit from residents over the demolition and rebuild of a drive-through restaurant on Upas Street in North Park.

Their legal argument: The controversy is all part of a master plan devised by Mayor Bob Filner to divert attention away from the current sexual harassment scandal.

The suit, filed August 12 in Superior Court by a group of concerned residents, accuses the restaurant chain of trying to sidestep City zoning laws by misrepresenting the scope of their project.

During an August 14 court hearing, attorneys for Jack in the Box and the City questioned the legitimacy of a letter from then-interim director of Development Services, Tom Tomlinson, to the City Attorney's Office. about the project.

"Note that many members of the community have strongly voiced their opposition to the project. The applicant has shown a flagrant disregard for the welfare of the community and the integrity of the permitting process...This office seeks a determination from the City Attorney if the violation of the ministerial permit, and the misrepresentations of fact to the community,constitute grounds for a Stop Work Order and forfeiture of the vested rights," reads Tomlinson's letter to city attorneys.

In court, lawyers for the defense weren't buying it.

"I'll make an offer of proof, if we need to. We believe that that letter was essentially ghost written at least in part by Mayor Filner and or Lee Burdick. There was clearly a division in the City, from our perspective, in which the Mayor --I think he -- I'm speculating -- wanted to divert attention from other things that were uncomfortable," argued attorney for Jack in the Box Dana Dunwoody from Sheppard Mullin according to an unofficial court transcript.

Jana Will from the City Attorney's Office seconded Dunwoody's argument a short while later when Judge Ronald Prager inquired about Tomlinson's request for legal advice.

"I think if I were provided the sufficient time to obtain declarations that I need to present to you today, that portion of the legal services request form was written by a person named Vince Hall, who is no longer with the City. He's not the top dog.

"So although it's presented as a single document, I think when you break it down, there are bits and pieces of it that really aren't stated based on any real factual basis."

The burden of proof rests with the plaintiffs whose battle with Jack in the Box spans several years.

Problems began shortly after executives approached residents with plans to demolish and rebuild their aging 1961 restaurant. The problem, however, zoning laws had changed since the restaurant opened. The new zoning designation prohibits drive-through restaurants. But Jack in the Box was exempt from the zoning requirement because it had been open long before those changes were made.

Executives refused to acknowledge the land-use designation. In 2012, they proposed a larger restaurant and expanded hours of operation. The residents objected to the plan; as did the North Park Planning Committee; as did the City's Planning Commission.

In response, Jack in the Box approached development services with another idea, the rebuild would be more of a renovation. No changes would be made to the existing footprint.

"The location and the size of the building are not changing. We are not demolishing any of the exterior walls," wrote construction manager Mike Hogenbom in a May 31 letter to the neighborhood planning committee.

Weeks later, all but two studs remained from the old restaurant.

The residents responded with a lawsuit against the City and Jack in the Box.

In court, attorney for the residents, Cory Briggs, responded to conspiracy theories brought up by his colleagues.

"Come on, let's not do this nonsense stuff. Give me a break. Let's just talk about this case. We have got enough political nonsense going on in this city."

Judge Prager, however, denied a request to halt construction. Work will continue at the site. Concrete for the new driveway is expected be poured as early as next week.

The parties will appear back in court on September 13 to set a trial date.

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Comments

Yankeedoodle Aug. 15, 2013 @ 2:06 p.m.

I am surprised by the decision of Judge Prager, who is usually very careful. Jack broke the law and thumbed its nose at the neighborhood and the city.

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Dorian Hargrove Aug. 15, 2013 @ 4:18 p.m.

YD, according to the transcript Prager said residents won't suffer if work continued whereas JIB would. As for JIB thumbing its nose, they are also saying that the 90-day statute of limitations for objections to permits have expired, therefore lawsuit is invalid. Briggs, however, says that the 90-days should have started when residents noticed the demolition and when JIB went back to the City for more permits.-dH

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aardvark Aug. 15, 2013 @ 2:07 p.m.

Didn't Lee Burdick state a few weeks ago that there was nothing that could be done, while pointing the blame for that squarely at the City Attorney's office?

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Yankeedoodle Aug. 15, 2013 @ 2:13 p.m.

That was my understanding. But yesterday, Jack resumed work on its total rebuild very early in the morning...already on the exterior walls.

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Dorian Hargrove Aug. 15, 2013 @ 4:22 p.m.

Yes, Burdick wrote that in a letter to a resident. The City Attorney ruled that the JIB would likely sue, and win, if the City ordered a work stoppage. I guess at the time they were unaware that residents were planning on filing a lawsuit. Kind of puts the City in a pickle. Let JIB sue you or be on their side of the aisle in court. They chose the latter. -dH

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FatCatSegat Aug. 15, 2013 @ 2:17 p.m.

How stupid does Jack in the Box think we are? How stupid do we think Judge Prager is?

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laplayaheritage Aug. 15, 2013 @ 2:52 p.m.

Judge Prager is the judge that made the ruling that there are no Seismic Hazards in San Diego because of a lack of digital Seismic Hazard maps from the State. Therefore San Diego does not have to follow the State Seismic Hazard Mapping Act for the Navy Broadway Complex (NBC). State laws require local government to confirm or deny active faulting in the CEQA planning stage. Not during construction or never.

http://www.latimes.com/news/local/la-me-hollywood-fault-20130815,0,1434970.story

http://www.latimes.com/news/local/la-me-hollywood-fault-20130810,0,1107285.story?page=1

Just last week our State Geologist John Parrish stated that a lack of official digital State seismic hazard maps is no excuse for local governments to ignore evidence of seismic hazards to allow buildings to be siting over presumed active faulting.

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aardvark Aug. 15, 2013 @ 4:42 p.m.

You mean like your convention center/stadium/whatever-else-it-is-supposed-to-be (I think you also proposed a cistern underneath it, or something like that)?

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laplayaheritage Aug. 15, 2013 @ 5:35 p.m.

No. I do not believe there is active faulting under the Convention Center Phase 3 Expansion. The lack of basic engineering and seismic hazard planning does cost everyone in broken subsurface utilities and damage the high rise condos sewers. There are 7+ lawsuits by condo HOA.

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aardvark Aug. 15, 2013 @ 6:17 p.m.

You do not believe? Then you don't know. Sounds like some of those seismic hazard maps need to be done near the convention center and the bay.

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laplayaheritage Aug. 15, 2013 @ 6:59 p.m.

Agreed. No one knows. Only a geological recon was prepared. San Diego needs help from the State.

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rosijoni Aug. 15, 2013 @ 3:04 p.m.

What is the point of a trial date on September 13? That restaurant will be open and operating by then. What do these people expect will happen? Jack in the Box will demolish their brand new restaurant and turn it into a park?!

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Yankeedoodle Aug. 15, 2013 @ 3:49 p.m.

They would have to close it, I'd assume. Then they might learn, in their other business choices, that the rules and regulations of which they're perfectly well aware, are for them too, not just the other poor saps who follow the law. Other businesses run without breaking the law. Do you think they like seeing that some other fellow just gets away with thumbing his nose at the regulations they followed? These businesses compete and Jack took an illegal and unfair advantage. That's wrong, and if they lose in September they will have to pay the price. Fait accompli is not a defense, as far as I know. Perhaps an attorney knows.

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Dorian Hargrove Aug. 15, 2013 @ 4:24 p.m.

You're correct, the restaurant might be open by then. If the judge does find that JIB violated the muni code and CEQA then they could very well be told that they need to abide by current zoning requirements, meaning no longer have a drive-thru. That will be up to Prager to decide.-dH

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Tired_of_PC Aug. 17, 2013 @ 7:41 p.m.

Perhaps a different sort of drive in would be more appropriate for the site. See:

http://www.nydailynews.com/life-style/health/drive-in-sex-boxes-debut-switzerland-article-1.1428953

This could be a very interesting alternative "jack in the box"!!!!!!

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