San Diego Ocean Beach real estate broker David Stebbins is like a man standing in the front row at a theater: when viewers behind him ask him to sit down, he yells, "I paid for this seat; I can do what I want." Such is the view of Randy Berkman, a community activist who keeps an eye on controversial land-use deals in San Diego.
Stebbins owns a one-story, 1250-square-foot duplex on West Point Loma Boulevard behind Dog Beach. He wants to replace it with a three-story, 1750-square-foot single-family residence that he says he will live in. The new house will block the ocean view of James Landry, who lives across the street in a third-floor condominium. On March 1, the San Diego Planning Commission unanimously approved Stebbins's plans. Landry has filed an appeal of the decision to the city council. He will be joined by co-appellant Randy Berkman.
An important feature of Stebbins's plan is 800 square feet of parking he wants to build underneath his new house. To do it, he will have to dig seven feet below the area's 100-year floodplain. When Berkman first heard about the parking plan, he wondered, "How did this get through [the San Diego Development Services Department's] first plan check? Well, in a sense, it didn't," he tells me as we sit on a concrete park bench behind the Stebbins duplex. "Someone from the City was on the ball and said, 'You're deviating from the municipal code here.' "
That was in 2004. By late 2005, Stebbins figured he could answer any objections the City might have. On October 26 he wrote to development services' Laila Iskandar stating, "The flood zone I am in was created, I believe, prior to the levee; this levee now protects my property from floods which, if you look at the map, come not from the ocean, but from the [San Diego] River. Flooding, if any, would be low velocity and shallow due to protection of the levee.... During the last horrific winter, the parking lot in back of my property stayed dry as a bone." Stebbins went on to offer spending "the money to floodproof the basement according to your/an engineer's instructions...." He eventually proposed a system to seal the basement and pump out any water that gets into it.
"I am only building a 1750-square-foot house," continued Stebbins. "If I must park above ground, this would reduce an already modest house (by anyone's standards) to a tiny house.... The result would be just another boxy, drab house.
"With all due respect, sooner or later the City must realize that this valuable land cannot be allowed to remain a sort of Beach Ghetto. The parking is currently all done in the setbacks. Half the tenants have constructed illegal ocean view decks. All of the properties on my block are eyesores."
Stebbins went on to cite several other property owners on the block who support his plan. "They have all expressed [interest in] doing the same thing if I can prove it is doable.... Consequently, once the ball is rolling, there should be an incremental change in the block. Just because I am the first and will 'stick out' does not mean that I do not conform to the [precise plan]. It just means I am the first!"
The reasoning about being "the first" may not come off as rational, but it was important for Stebbins to counter the Ocean Beach Precise Plan with an argument of some kind. The plan dates to the 1970s and makes several points that are relevant to the Stebbins project. First, it demands that new construction be "compatible with the bulk and scale of the neighborhood." Stebbins's three stories, situated in the middle of the block, would not fit in with the low-lying, one-story cottages that make up the rest of the block. Second, the precise plan seeks to "maintain the existing residential character of Ocean Beach as exemplified by a mixture of small-scale residential building types and styles." And third, the precise plan insists "that views available from elevated areas and those adjacent to the beaches and ocean be preserved and enhanced wherever possible."
In wrapping up his letter to planner Laila Iskandar, Stebbins pleaded, "I am asking for a little flexibility on the part of you and your staff. I live and work in Ocean Beach. It would be a great hardship for me to have to move somewhere else in order to live in a bigger house."
On November 4, 2005, Iskandar wrote Stebbins back to say that "City staff cannot support the request for...underground parking for the project site." Iskandar cited "the 100 Year Floodplain zone" and said it was incompatible with "construction below grade in these circumstances." In order for Stebbins to have his project approved, she wrote, he would have to conform to San Diego Municipal Code requirements regarding a "Special Flood Hazard Area." That would mean "the lowest floor, including basement, [would have to be] elevated at least 2 feet above the base flood elevation" rather than seven feet below as in Stebbins's plan.
But Stebbins pressed on, and eventually Laila Iskandar became the City's manager for the project. "I'm not exactly sure when -- what day -- staff changed their mind on this," Randy Berkman tells me. In another situation, the case of the Pacific Coast Office Building in Mission Valley, Berkman remembers the City reversing course -- and then sending out what he calls "a good-news letter." After stopping the project from going forward, a city planner e-mailed the property owner's consultant saying, "Good news! We have decided you don't need to go through the plan amendment process." But, says Berkman, "I haven't seen in the documents any such good-news notification for Stebbins."
On February 8 of this year, project manager Iskandar presented the Stebbins residence to the Planning Commission. She told commissioners everything about the plan but did not mention the reasoning she had given Stebbins a year and a half earlier as a deal breaker. "It's the same game they play," says Berkman. "If you don't tell the public that this has any legal problems, then the project will get approved. Not to tell the public, that's what gets me."
Why did Stebbins finally get a go-ahead?
"Good question, and I haven't quite figured it out," says Berkman. "You can only speculate. But when we present our appeal to the city council, all I will have to do is quote. The best comments about why this project shouldn't go forward have already come from the applicant and city staff. Our appeal now says, 'It is not understood why they changed their minds from a formerly valid assessment of the situation.' " Berkman wants to ask Iskandar, "Why are you now disagreeing with yourself?"
The City may even have attempted to mislead the Planning Commission regarding Federal Emergency Management Agency requirements. In her presentation to the commission, Iskandar cited the agency's Technical Bulletin 3-93 in support of Stebbins's project. The same bulletin is mentioned in the project permits and environmental document. "But the City never mentioned the bulletin's title," says Berkman. "When I tracked it down I saw why. The bulletin is called 'Non-Residential Floodproofing -- Requirements and Certification for Buildings Located in Special Flood Hazard Areas.' It allows for some commercial underground parking in floodplains but doesn't say anything about residential. Then you find Bulletin 6-93, which explicitly says that FEMA prohibits underground parking at a residence in a floodplain.
"In addition, FEMA requires that a project not be a public nuisance. Well, the geotechnical consultant is saying that when they dewater -- take the water out from underneath the site to build the underground parking -- that it is likely to cause settling of the adjacent residences." Berkman admits that the federal agency does allow certain deviations from its code, but they are so strict he does not see how Stebbins would qualify. "One deviation would be for extreme hardship," says Berkman. "I don't see Stebbins's complaint that he would have to move if he can't build his dream house as an 'extreme' situation."
Then there is the matter of blocking other residents' ocean views. Berkman wonders if the City could be opening itself to an inverse condemnation lawsuit if it approves a project that causes neighbors to sustain property value losses. He asks, "What if a lawyer could say, 'Look, you're going against the municipal code and the community plan. As a result, you're diminishing property values across the street, and we have a real estate appraiser willing to put that in writing'?"
And Stebbins has already acknowledged that the neighbors on the block want to follow him if he proves his project is "doable." "I am the first," he said. How many lawsuits might he trigger in the process?