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Mission Valley Project May Violate Code

— In early September the plan to build the Pacific Coast Office Building into Mission Valley's southern hillside sounded innocuous enough to community watchdog Randy Berkman. Then the building's developer, Robert Pollack, sent him a mid-October e-mail promising not to build during the California gnatcatcher's nesting season.

"That was the first time I remember an owner offering anything like that," Berkman tells me. "I saw it as a plus, but it also made me think something else might be wrong, so I closely reviewed the plan's mitigated negative declaration. I then found legal issues."

Pollack, a La Mesa plastic surgeon, was proposing construction at the southern end of Scheidler Way, off Camino del Rio South between I-15 and 805. In December 2003 he had purchased five acres there for $250,000, or $50,000 per acre. That low price for Mission Valley property suggested to Berkman that the parcel has "developability problems." What eventually concerned him about the office building was the amount of earth it would remove from the hillside, the length and size of its retaining walls, and its intrusion into designated open space. The Mission Valley Community Plan and the San Diego Municipal Code provide guidelines covering each issue. And the Pacific Coast Office Building project, according to Berkman, was going to violate those guidelines.

Take the 6300 cubic yards of excavation to a depth of 23 feet that the project requires. "A standard dump truck holds 10 cubic yards," says Berkman. "That's 630 dump truck loads of soil, and they're saying that would be only a minimal disturbance of the natural terrain, which happens to contain coastal sage scrub, the gnatcatcher's natural habitat [both the gnatcatcher and the habitat are environmentally threatened]. The south hillsides in Mission Valley still do have a fair amount of coastal sage left. The restrictions in the Mission Valley plan are either no grading at the base of the slopes or minimal grading higher up. So at least we have a minimal-disturbance restriction in place. Will the city now assert that 630 dump trucks of excavation is minimal?"

Then there's the 1865 feet of retaining wall that the project requires. "The walls are noncompliant with municipal code, which says that building walls for erosion on steep hillsides is permitted only to protect existing primary structures or public improvements. The key word is 'existing.' These walls were being built only for a future private building. And anyway, if you have to make a fortress out of your office building," asks Berkman, "doesn't that tell you that something is wrong here? But it wouldn't surprise me to see the city twist that language or basically ignore it."

Another critic of the Pacific Coast Office Building has been Eric Bowlby, the San Diego chapter of the Sierra Club's canyon and creeks preservation organizer. On October 27, Bowlby wrote to Bob Didion, a project officer in the city's Development Services Department, requesting that the developer be required to file an environmental impact report instead of a mitigated negative declaration. An environmental impact report is required when a project will have a "significant adverse effect" on the environment; a mitigated negative declaration is filed when a project can be revised so that a potentially significant adverse effect can be reduced to insignificance. Bowlby cited negative "visual impacts" along with the excavation and retaining-wall problems that the project would cause. He also noted that the construction was set to take place on land classified as "steep hillside," a terrain the Mission Valley Community Plan protects. "Mission Valley's landmark steep hillsides warrant the consideration of project alternatives that reduce and avoid such impacts," wrote Bowlby.

In the meantime, both Berkman and Bowlby began smelling something fishy about the office building's proposed height. In a section entitled "Preservation of Steep Slopes," the San Diego Municipal Code states, "Development, including road construction, above the 150 foot line shall not occur." And the Mission Valley Community Plan reads, "Development oriented to the Valley and accessed by roads from the Valley floor should not extend above the 150-foot elevation contour."

The Pacific Coast Office Building's final mitigated negative declaration acknowledges this restriction. But it also contains drawings with 150-foot-plus elevations typed in print so small they are almost impossible to read. Elevations that high would push the building into designated open space and be illegal. "It shows how well this plan was covered up," says Berkman. "You had to be like Sherlock Holmes to figure it out."

To a clarification inquiry by Randy Berkman, Elizabeth Shearer-Nguyen, the city's analyst for the project, responded that the proposed office building would not intrude into designated open space. Not satisfied, however, Berkman on October 31 contacted the city's Bill Tripp, assigned to the project as its manager. Tripp admitted that the building would reach a 200-foot elevation, intruding 50 feet into the designated open-space area. In a subsequent e-mail to the San Diego city attorney's office, Berkman wrote, "When the city staff makes misleading statements to get a project approved, this cannot and should not be tolerated."

On November 2, Didion, the project officer for the Development Services Department, held a hearing to air public concerns about the office-building project. Deputy city attorney David Miller attended and raised questions about the project's compliance with city code. City staff responded by seeking what Berkman calls "an 11th-hour" exception to the Mission Valley Community Plan. They characterized the building site as an unusual piece of land with a bottom elevation of 150 feet. But Berkman had noticed that the staff's own initial study put the lowest point on the land at 136 feet in elevation. Afterward, Didion instructed city staff to amend the mitigated negative declaration and continued the hearing until January 11. Since then it has been rescheduled to January 18.

Berkman interprets Didion's instructions as demanding "full disclosure of the proposal's plan to [build] into an open space designated area." He says, "I consider what Didion did to be a severe reprimand of staff.... It's saying, 'This thing is so inaccurate and misleading [that you must] redo it.' "

"This is a significant victory for the public," he continues, "the city attorney's office enforcing applicable codes rather than ignoring them and doing whatever staff says is okay."

But Berkman may be overly optimistic. When I talked to Didion shortly after the hearing, he told me that he had directed city staff to review issues raised by Berkman and Bowlby and to change the existing mitigated negative declaration "to address their issues to the greatest possible extent." How strictly he will judge the staff's response when January 18 rolls around is an open question.

Since the hearing, Berkman has found in the city's case file for the Pacific Coast Office Building an interesting letter from the landowner's attorney, J. Michael McDade, to San Diego long-range planner John Wilhoit. The June 3, 2004, letter requests "initiation of a Mission Valley Community Plan amendment to address the proposal's exceeding of the 150-foot elevation limit." The letter is evidence that the project's concept included building into designated open space.

But given heightened attention recently to city heavy-handedness in development issues, Didion, when he revisits the issue in January, may still be responsive to sentiments like those of Terry Weiner, who wrote to him shortly before the November 2 hearing. Weiner is president of Friends of University Heights Open Space. "I have watched in dismay," she wrote, "as our steep hillsides on the south side of Mission Valley are encroached upon in bits and pieces from below.... What type of erosion will occur with the excavation of [6300 cubic yards] of sand from the hillside in the Pacific Coast Office Project?

"I am disturbed that this proposed project seems to violate the spirit as well as the letter of our municipal plans and codes. Much of the importance of the north-facing slopes of Mission Valley lies in the visual relief they give. These southern maritime chaparral and coastal sage scrub hillsides are part of San Diego's remaining natural heritage."

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— In early September the plan to build the Pacific Coast Office Building into Mission Valley's southern hillside sounded innocuous enough to community watchdog Randy Berkman. Then the building's developer, Robert Pollack, sent him a mid-October e-mail promising not to build during the California gnatcatcher's nesting season.

"That was the first time I remember an owner offering anything like that," Berkman tells me. "I saw it as a plus, but it also made me think something else might be wrong, so I closely reviewed the plan's mitigated negative declaration. I then found legal issues."

Pollack, a La Mesa plastic surgeon, was proposing construction at the southern end of Scheidler Way, off Camino del Rio South between I-15 and 805. In December 2003 he had purchased five acres there for $250,000, or $50,000 per acre. That low price for Mission Valley property suggested to Berkman that the parcel has "developability problems." What eventually concerned him about the office building was the amount of earth it would remove from the hillside, the length and size of its retaining walls, and its intrusion into designated open space. The Mission Valley Community Plan and the San Diego Municipal Code provide guidelines covering each issue. And the Pacific Coast Office Building project, according to Berkman, was going to violate those guidelines.

Take the 6300 cubic yards of excavation to a depth of 23 feet that the project requires. "A standard dump truck holds 10 cubic yards," says Berkman. "That's 630 dump truck loads of soil, and they're saying that would be only a minimal disturbance of the natural terrain, which happens to contain coastal sage scrub, the gnatcatcher's natural habitat [both the gnatcatcher and the habitat are environmentally threatened]. The south hillsides in Mission Valley still do have a fair amount of coastal sage left. The restrictions in the Mission Valley plan are either no grading at the base of the slopes or minimal grading higher up. So at least we have a minimal-disturbance restriction in place. Will the city now assert that 630 dump trucks of excavation is minimal?"

Then there's the 1865 feet of retaining wall that the project requires. "The walls are noncompliant with municipal code, which says that building walls for erosion on steep hillsides is permitted only to protect existing primary structures or public improvements. The key word is 'existing.' These walls were being built only for a future private building. And anyway, if you have to make a fortress out of your office building," asks Berkman, "doesn't that tell you that something is wrong here? But it wouldn't surprise me to see the city twist that language or basically ignore it."

Another critic of the Pacific Coast Office Building has been Eric Bowlby, the San Diego chapter of the Sierra Club's canyon and creeks preservation organizer. On October 27, Bowlby wrote to Bob Didion, a project officer in the city's Development Services Department, requesting that the developer be required to file an environmental impact report instead of a mitigated negative declaration. An environmental impact report is required when a project will have a "significant adverse effect" on the environment; a mitigated negative declaration is filed when a project can be revised so that a potentially significant adverse effect can be reduced to insignificance. Bowlby cited negative "visual impacts" along with the excavation and retaining-wall problems that the project would cause. He also noted that the construction was set to take place on land classified as "steep hillside," a terrain the Mission Valley Community Plan protects. "Mission Valley's landmark steep hillsides warrant the consideration of project alternatives that reduce and avoid such impacts," wrote Bowlby.

In the meantime, both Berkman and Bowlby began smelling something fishy about the office building's proposed height. In a section entitled "Preservation of Steep Slopes," the San Diego Municipal Code states, "Development, including road construction, above the 150 foot line shall not occur." And the Mission Valley Community Plan reads, "Development oriented to the Valley and accessed by roads from the Valley floor should not extend above the 150-foot elevation contour."

The Pacific Coast Office Building's final mitigated negative declaration acknowledges this restriction. But it also contains drawings with 150-foot-plus elevations typed in print so small they are almost impossible to read. Elevations that high would push the building into designated open space and be illegal. "It shows how well this plan was covered up," says Berkman. "You had to be like Sherlock Holmes to figure it out."

To a clarification inquiry by Randy Berkman, Elizabeth Shearer-Nguyen, the city's analyst for the project, responded that the proposed office building would not intrude into designated open space. Not satisfied, however, Berkman on October 31 contacted the city's Bill Tripp, assigned to the project as its manager. Tripp admitted that the building would reach a 200-foot elevation, intruding 50 feet into the designated open-space area. In a subsequent e-mail to the San Diego city attorney's office, Berkman wrote, "When the city staff makes misleading statements to get a project approved, this cannot and should not be tolerated."

On November 2, Didion, the project officer for the Development Services Department, held a hearing to air public concerns about the office-building project. Deputy city attorney David Miller attended and raised questions about the project's compliance with city code. City staff responded by seeking what Berkman calls "an 11th-hour" exception to the Mission Valley Community Plan. They characterized the building site as an unusual piece of land with a bottom elevation of 150 feet. But Berkman had noticed that the staff's own initial study put the lowest point on the land at 136 feet in elevation. Afterward, Didion instructed city staff to amend the mitigated negative declaration and continued the hearing until January 11. Since then it has been rescheduled to January 18.

Berkman interprets Didion's instructions as demanding "full disclosure of the proposal's plan to [build] into an open space designated area." He says, "I consider what Didion did to be a severe reprimand of staff.... It's saying, 'This thing is so inaccurate and misleading [that you must] redo it.' "

"This is a significant victory for the public," he continues, "the city attorney's office enforcing applicable codes rather than ignoring them and doing whatever staff says is okay."

But Berkman may be overly optimistic. When I talked to Didion shortly after the hearing, he told me that he had directed city staff to review issues raised by Berkman and Bowlby and to change the existing mitigated negative declaration "to address their issues to the greatest possible extent." How strictly he will judge the staff's response when January 18 rolls around is an open question.

Since the hearing, Berkman has found in the city's case file for the Pacific Coast Office Building an interesting letter from the landowner's attorney, J. Michael McDade, to San Diego long-range planner John Wilhoit. The June 3, 2004, letter requests "initiation of a Mission Valley Community Plan amendment to address the proposal's exceeding of the 150-foot elevation limit." The letter is evidence that the project's concept included building into designated open space.

But given heightened attention recently to city heavy-handedness in development issues, Didion, when he revisits the issue in January, may still be responsive to sentiments like those of Terry Weiner, who wrote to him shortly before the November 2 hearing. Weiner is president of Friends of University Heights Open Space. "I have watched in dismay," she wrote, "as our steep hillsides on the south side of Mission Valley are encroached upon in bits and pieces from below.... What type of erosion will occur with the excavation of [6300 cubic yards] of sand from the hillside in the Pacific Coast Office Project?

"I am disturbed that this proposed project seems to violate the spirit as well as the letter of our municipal plans and codes. Much of the importance of the north-facing slopes of Mission Valley lies in the visual relief they give. These southern maritime chaparral and coastal sage scrub hillsides are part of San Diego's remaining natural heritage."

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