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Judge overrules San Diego City Council on monster Hillcrest condos

"35,000 residents, and we have two tennis courts"

After numerous San Diego Union-Tribune hit pieces, a brand on the city attorney's head now reads "frivolous and futile litigator." No need to heed this guy's advice. Could that be what the city council was thinking when, on September 12, 2006, it ignored Mike Aguirre's 20-page warning that a huge mixed-use project in Hillcrest would be illegal on a number of counts? By a 7-1 vote, the council approved the proposed 12-story structure that local residents called "the monster building."

The 96 condominiums, along with retail space and a parking structure, were to go up on the south side of University Avenue between Third and Fourth avenues. Until January, that is, when the community action group Friends of San Diego filed a lawsuit to stop the project. According to Friends president Tom Mullaney, "We took on the suit in conjunction with a residents group called Save Hillcrest. We then hired a land-use attorney and were assisted by donations of time and money from numerous residents and business owners in the Uptown and Hillcrest communities."

John Taylor was a founding member of Save Hillcrest and owns a home on Third Avenue across the street from the proposed condos. Last year, Taylor organized a petition drive and sent over 2000 signatures to the city council opposing the development. "Even our councilmember, Toni Atkins, ignored them," Taylor tells me. "Her standing in our community really went down after that."

The La Jolla Pacific Development Group planned to build the condos for landowners Michael McPhee and Bruce Leidenberger. "After we filed the lawsuit," says Mullaney, "the developers told us how surprised they were at how much community opposition there was. But the community had been universally against it from day one. In the early planning stages, the developers acted like they were listening carefully to complaints voiced at the Uptown Planners meetings. Then they'd make some minor changes and go their merry way."

Shortly after the lawsuit was filed, Mullaney got his own surprise. A representative from the mayor's office attended the meeting the two sides held to discuss the case. It got Mullaney to thinking -- and to searching at the city clerk's office. There he discovered in a 2005 report that the "Jerry Sanders for Mayor" committee paid rent for office space in a Fifth Avenue building owned by Leidenberger and McPhee. He also saw that in 2005 Leidenberger and his wife Joanne donated $600 to the Sanders campaign. But Mullaney isn't making accusations yet.

On August 23, superior court judge Linda Quinn reversed the city council's decision and halted the condo project, citing numerous "causes of action," most coinciding with the city attorney's analysis. Residents of such a building would cause significant new traffic problems for an already congested Hillcrest. The 12-story, 147-foot structure would be out of character with the rest of the area, which is dominated by 1- and 2-story buildings. The developers did not analyze the project with respect to noise and air quality. The City's Development Services staff did not properly circulate the project's environmental study. The developers did not sufficiently deal with short-term impacts from construction. "The edge of the condominium tower," comments Mullaney, "was going to be right up against University Avenue. A hammer falling on you from construction up top would pretty much ruin your day."

Mullaney's favorite reasoning, however, involves a shortage of parks in the Hillcrest, Uptown, and Mission Hills area. He shows me a photo of two girls hitting a tennis ball back and forth in the middle of the street. "This area has 35,000 residents, and we have two tennis courts," says Mullaney. "Uptown is about 90 percent short of the park acreage it's supposed to have. Kids have to get in a car and go to another community to play a game of baseball or soccer. So a big part of our argument involved a lack of any evidence that the new development would be accompanied by new parks. It's not enough that development impact fees are paid for parks. The law requires evidence that there are actual plans for the parks to be built. The judge ruled in our favor on that and said the City has to provide such evidence, something it hasn't done.

"The trouble with a lot of these developments all over town," claims Mullaney, "is that while the City says it will provide the infrastructure they need, it never does."

Mullaney is especially critical of how the project's environmental study was circulated. "The developers did not properly inform the community when they changed the project's plans," he tells me. "They first bought the property at Third and University and planned for 40-something condos. Later they bought the property next door to the east, increasing the units to over 60. Finally, for the parking structure, they bought a parcel on Third. That brought the project up to 30,000 square feet, and when you have [that much space], the law allows you to add half of the units you already have. So they got another 30-plus condos, bringing the total to 96. That kind of increase would be extremely valuable. The problem is that when each of these changes was made, the developers didn't properly keep the community informed about them. So there were many people who had no idea how extensive the project was going to be. The developers should have completed their environmental report and circulated it after they were all done planning."

The upshot of Judge Quinn's decision was that developers of the monster building neglected to take the community's concerns into consideration. Since Mike Aguirre had originally weighed in on the issue, I pay a visit to his office. I ask him a leading question. "Are the communities, through their planning groups, or in any other way, getting represented before the city council as well as developers are?"

Aguirre gives me a quick "No," which he then qualifies. "It's not that the communities are not being represented as well; their representatives are great. But there's an imbalance in the way the City functions, which in the long run is destroying everybody, including the developers."

I bring up Mayor Sanders's plan to introduce more uniformity into the way planning groups around the city operate. "People in the planning groups are now grumbling about how the change will take away much of their independence. How," I ask, "can that independence be preserved?"

"That's where my office comes out for the neighborhood bill of rights, which will put into the City's charter their fundamental right to participate in the City's major planning decisions.... I think we have a completely different philosophy than the mayor," says Aguirre. "The mayor is looking to again streamline the process to speed things up for the developers. And I think the kind of language he uses is the kind of language that Susan Golding used, and Mayor Murphy used, the developer-friendly language that has accompanied very substantial campaign contributions.

"That is out of step with where we need to be right now. We need to be more thoughtful and careful. We don't want to dry development up, but I think we want to be more like Paris and San Francisco and other places that have maintained beautiful communities while their property values are substantial and the business conditions seem to be pretty resilient. I think being smart is what we want to be. The whole idea of saying 'America's finest city' is just another empty advertising slogan. It doesn't mean anything. It means literally nothing. But to say we want to be America's smartest city -- that does have some content to it, and that's the direction I'd like to see us move.

"What we have to do is make sure we have the water, the wastewater system, the stormwater system, the streets and overall infrastructure, parks, and so on, which we don't have. We have to be honest in guiding that process. What I'd like to see happen is a shift from the development-services approach to environmental planning and protection.... San Diego has had many years of overgrowth and not enough infrastructure.

"We have to transform ourselves from a growth-oriented approach to a sustainability-oriented approach. The Development Services Department is no longer serving anyone's best interests, because they have an impossible job of trying to accommodate growth that doesn't make sense anymore. The developers have driven the political process to get their people in. The City's vision is their business-plan vision, and their vision is not in their own long-term best interests or in the best interests of the city. But I think it's important to move past the vilification, because we've got to get the developers on board. There have to be economic opportunities in San Diego. We don't want to see that dried up. But the market has to serve the larger good. The society as a whole doesn't serve the market; the market serves the society. What's happened here is we've got it backwards. So over and over again [in the development-approval process] there has been no compliance with the law."

Are city councilmembers so unaware of the law? Or do they rely too heavily on arguments of the Development Services Department?

"I think some members of city council have been caught up in the attitude that they want to please the people that got them elected, the ones who finance their campaigns. San Diego is really going through a struggle right now, and my belief is that we're coming to a confrontation point. The City cannot be half honest and half dishonest. It can't be half smart and half dumb. It's going to be all of one thing or all of another, and right now it's unclear which direction it's going to go. The reactionary forces are trying to hold on, but I think it's becoming clear even to them that there isn't much of a future in what they want to do, because eventually they'll just destroy the finances of the City.

"I would say no one in the current situation is being treated fairly. The City has to become the honest broker that sends out clear market signals to the developers so that they can make their business plans accordingly."

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After numerous San Diego Union-Tribune hit pieces, a brand on the city attorney's head now reads "frivolous and futile litigator." No need to heed this guy's advice. Could that be what the city council was thinking when, on September 12, 2006, it ignored Mike Aguirre's 20-page warning that a huge mixed-use project in Hillcrest would be illegal on a number of counts? By a 7-1 vote, the council approved the proposed 12-story structure that local residents called "the monster building."

The 96 condominiums, along with retail space and a parking structure, were to go up on the south side of University Avenue between Third and Fourth avenues. Until January, that is, when the community action group Friends of San Diego filed a lawsuit to stop the project. According to Friends president Tom Mullaney, "We took on the suit in conjunction with a residents group called Save Hillcrest. We then hired a land-use attorney and were assisted by donations of time and money from numerous residents and business owners in the Uptown and Hillcrest communities."

John Taylor was a founding member of Save Hillcrest and owns a home on Third Avenue across the street from the proposed condos. Last year, Taylor organized a petition drive and sent over 2000 signatures to the city council opposing the development. "Even our councilmember, Toni Atkins, ignored them," Taylor tells me. "Her standing in our community really went down after that."

The La Jolla Pacific Development Group planned to build the condos for landowners Michael McPhee and Bruce Leidenberger. "After we filed the lawsuit," says Mullaney, "the developers told us how surprised they were at how much community opposition there was. But the community had been universally against it from day one. In the early planning stages, the developers acted like they were listening carefully to complaints voiced at the Uptown Planners meetings. Then they'd make some minor changes and go their merry way."

Shortly after the lawsuit was filed, Mullaney got his own surprise. A representative from the mayor's office attended the meeting the two sides held to discuss the case. It got Mullaney to thinking -- and to searching at the city clerk's office. There he discovered in a 2005 report that the "Jerry Sanders for Mayor" committee paid rent for office space in a Fifth Avenue building owned by Leidenberger and McPhee. He also saw that in 2005 Leidenberger and his wife Joanne donated $600 to the Sanders campaign. But Mullaney isn't making accusations yet.

On August 23, superior court judge Linda Quinn reversed the city council's decision and halted the condo project, citing numerous "causes of action," most coinciding with the city attorney's analysis. Residents of such a building would cause significant new traffic problems for an already congested Hillcrest. The 12-story, 147-foot structure would be out of character with the rest of the area, which is dominated by 1- and 2-story buildings. The developers did not analyze the project with respect to noise and air quality. The City's Development Services staff did not properly circulate the project's environmental study. The developers did not sufficiently deal with short-term impacts from construction. "The edge of the condominium tower," comments Mullaney, "was going to be right up against University Avenue. A hammer falling on you from construction up top would pretty much ruin your day."

Mullaney's favorite reasoning, however, involves a shortage of parks in the Hillcrest, Uptown, and Mission Hills area. He shows me a photo of two girls hitting a tennis ball back and forth in the middle of the street. "This area has 35,000 residents, and we have two tennis courts," says Mullaney. "Uptown is about 90 percent short of the park acreage it's supposed to have. Kids have to get in a car and go to another community to play a game of baseball or soccer. So a big part of our argument involved a lack of any evidence that the new development would be accompanied by new parks. It's not enough that development impact fees are paid for parks. The law requires evidence that there are actual plans for the parks to be built. The judge ruled in our favor on that and said the City has to provide such evidence, something it hasn't done.

"The trouble with a lot of these developments all over town," claims Mullaney, "is that while the City says it will provide the infrastructure they need, it never does."

Mullaney is especially critical of how the project's environmental study was circulated. "The developers did not properly inform the community when they changed the project's plans," he tells me. "They first bought the property at Third and University and planned for 40-something condos. Later they bought the property next door to the east, increasing the units to over 60. Finally, for the parking structure, they bought a parcel on Third. That brought the project up to 30,000 square feet, and when you have [that much space], the law allows you to add half of the units you already have. So they got another 30-plus condos, bringing the total to 96. That kind of increase would be extremely valuable. The problem is that when each of these changes was made, the developers didn't properly keep the community informed about them. So there were many people who had no idea how extensive the project was going to be. The developers should have completed their environmental report and circulated it after they were all done planning."

The upshot of Judge Quinn's decision was that developers of the monster building neglected to take the community's concerns into consideration. Since Mike Aguirre had originally weighed in on the issue, I pay a visit to his office. I ask him a leading question. "Are the communities, through their planning groups, or in any other way, getting represented before the city council as well as developers are?"

Aguirre gives me a quick "No," which he then qualifies. "It's not that the communities are not being represented as well; their representatives are great. But there's an imbalance in the way the City functions, which in the long run is destroying everybody, including the developers."

I bring up Mayor Sanders's plan to introduce more uniformity into the way planning groups around the city operate. "People in the planning groups are now grumbling about how the change will take away much of their independence. How," I ask, "can that independence be preserved?"

"That's where my office comes out for the neighborhood bill of rights, which will put into the City's charter their fundamental right to participate in the City's major planning decisions.... I think we have a completely different philosophy than the mayor," says Aguirre. "The mayor is looking to again streamline the process to speed things up for the developers. And I think the kind of language he uses is the kind of language that Susan Golding used, and Mayor Murphy used, the developer-friendly language that has accompanied very substantial campaign contributions.

"That is out of step with where we need to be right now. We need to be more thoughtful and careful. We don't want to dry development up, but I think we want to be more like Paris and San Francisco and other places that have maintained beautiful communities while their property values are substantial and the business conditions seem to be pretty resilient. I think being smart is what we want to be. The whole idea of saying 'America's finest city' is just another empty advertising slogan. It doesn't mean anything. It means literally nothing. But to say we want to be America's smartest city -- that does have some content to it, and that's the direction I'd like to see us move.

"What we have to do is make sure we have the water, the wastewater system, the stormwater system, the streets and overall infrastructure, parks, and so on, which we don't have. We have to be honest in guiding that process. What I'd like to see happen is a shift from the development-services approach to environmental planning and protection.... San Diego has had many years of overgrowth and not enough infrastructure.

"We have to transform ourselves from a growth-oriented approach to a sustainability-oriented approach. The Development Services Department is no longer serving anyone's best interests, because they have an impossible job of trying to accommodate growth that doesn't make sense anymore. The developers have driven the political process to get their people in. The City's vision is their business-plan vision, and their vision is not in their own long-term best interests or in the best interests of the city. But I think it's important to move past the vilification, because we've got to get the developers on board. There have to be economic opportunities in San Diego. We don't want to see that dried up. But the market has to serve the larger good. The society as a whole doesn't serve the market; the market serves the society. What's happened here is we've got it backwards. So over and over again [in the development-approval process] there has been no compliance with the law."

Are city councilmembers so unaware of the law? Or do they rely too heavily on arguments of the Development Services Department?

"I think some members of city council have been caught up in the attitude that they want to please the people that got them elected, the ones who finance their campaigns. San Diego is really going through a struggle right now, and my belief is that we're coming to a confrontation point. The City cannot be half honest and half dishonest. It can't be half smart and half dumb. It's going to be all of one thing or all of another, and right now it's unclear which direction it's going to go. The reactionary forces are trying to hold on, but I think it's becoming clear even to them that there isn't much of a future in what they want to do, because eventually they'll just destroy the finances of the City.

"I would say no one in the current situation is being treated fairly. The City has to become the honest broker that sends out clear market signals to the developers so that they can make their business plans accordingly."

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