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Decision in Sherman Heights Walmart case could spell trouble for opponents of North Park Jack in the Box

Recent ruling finds Walmart misrepresented proposal. However, too late for mitigation to take place.

One is a large box store in Sherman Heights. The other is a Jack in the Box fast-food restaurant in North Park. Both have sent the City to court for allowing them to build outside the scope of their permits.

The similarities between the now-open Walmart and the nearly-finished Jack in the Box in North Park are striking.

Earlier this month, on August 8, Judge Timothy Taylor ruled that the City looked the other way while retailer Walmart converted a Sherman Heights warehouse, once a neighborhood farmer's market, into a 42,000 square-foot retail store. Despite the finding, the Superior Court Judge did not order the City or Walmart to make good to nearby residents. Instead, he ordered a formal declaration be issued stating "that the City failed to comply with CEQA in allowing the Project to proceed in 2012."

Taylor found that the mega-retailer played down the size and scope of their building proposal.

"The Project contemplated by [Walmart] in 2011 was significantly different than anything that was "on the drawing board" in 2009.

Walmart's proposal stated that "no development, new construction, or alteration of the existing structure" would take place. Nor were any "alterations to the exterior facades" proposed." Lastly, the retailer's proposal did not anticipate that any new construction or development to the "exterior facade of the building" would take place.

From Taylor's ruling:

"Consequently, there was no analysis of the impact of the removal of one of the two "towers;" there was no analysis of the impact (if any) of the partial removal (and subsequent rebuilding) of some of the walls; there was no analysis of the impact (if any) of the change in the signage; there was no analysis of the impact of the change in use from a "Farmer's Market" with sporadic hours to a full time, full service modern supermarket; and there was no analysis of the changes in the Project's traffic and circulation impacts between what was contemplated in 2009 and that which was contemplated in 2011 (and is now a reality).

"The court rejects [Walmart's] continued refrain that the 2011 plan submittal contemplated only minor "tenant improvements." The building official who was responsible for reviewing the late 2011 application would have been well within her or his rights had s/he determined that there was no ministerial duty in 2011 to issue a building permit, because the 2011 plans differed significantly from anything contemplated in the 2009 SDP and CUP.

The Superior Court Judge wrote that the City should have followed-up by denying the application as was proposed at the time, or, at least required additional studies looking into potential impacts.

In his formal ruling, Taylor wrote that shutting down the store or ordering some type of mitigation would be impractical. "...[It] is simply too late to afford the petitioner the relief it seeks. The rebuilding is over and the supermarket is open; nothing would be gained (and potentially much lost) by ordering the City to set aside project approvals at this late date."

The ruling may cast a shadow as far as North Park, especially for those denizens fighting what they say is an illegal rebuild of a Jack in the Box fast-food restaurant.

http://www.kpbs.org/news/2013/aug/16/roundtable-filner-saga-rolls-north-park-vs-jack-bo/

Walmart's empty pledge to leave the exterior walls intact were also made by Jack in the Box on their application to renovate a drive-through restaurant near the intersection of Upas and 30th Street.

http://www.sandiegoreader.com/news/2012/feb/01/citylights2-jack-in-the-box-north-park/

The end-around by each company shows obvious gaps in the City's permitting process. And, residents surrounding controversial projects are now having to try and fill those gaps in court.

All North Park residents can do is hope the similarities with Walmart stops there and the judge does not make them live with the City's mistake. The two sides are expected back in court on September 13.

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One is a large box store in Sherman Heights. The other is a Jack in the Box fast-food restaurant in North Park. Both have sent the City to court for allowing them to build outside the scope of their permits.

The similarities between the now-open Walmart and the nearly-finished Jack in the Box in North Park are striking.

Earlier this month, on August 8, Judge Timothy Taylor ruled that the City looked the other way while retailer Walmart converted a Sherman Heights warehouse, once a neighborhood farmer's market, into a 42,000 square-foot retail store. Despite the finding, the Superior Court Judge did not order the City or Walmart to make good to nearby residents. Instead, he ordered a formal declaration be issued stating "that the City failed to comply with CEQA in allowing the Project to proceed in 2012."

Taylor found that the mega-retailer played down the size and scope of their building proposal.

"The Project contemplated by [Walmart] in 2011 was significantly different than anything that was "on the drawing board" in 2009.

Walmart's proposal stated that "no development, new construction, or alteration of the existing structure" would take place. Nor were any "alterations to the exterior facades" proposed." Lastly, the retailer's proposal did not anticipate that any new construction or development to the "exterior facade of the building" would take place.

From Taylor's ruling:

"Consequently, there was no analysis of the impact of the removal of one of the two "towers;" there was no analysis of the impact (if any) of the partial removal (and subsequent rebuilding) of some of the walls; there was no analysis of the impact (if any) of the change in the signage; there was no analysis of the impact of the change in use from a "Farmer's Market" with sporadic hours to a full time, full service modern supermarket; and there was no analysis of the changes in the Project's traffic and circulation impacts between what was contemplated in 2009 and that which was contemplated in 2011 (and is now a reality).

"The court rejects [Walmart's] continued refrain that the 2011 plan submittal contemplated only minor "tenant improvements." The building official who was responsible for reviewing the late 2011 application would have been well within her or his rights had s/he determined that there was no ministerial duty in 2011 to issue a building permit, because the 2011 plans differed significantly from anything contemplated in the 2009 SDP and CUP.

The Superior Court Judge wrote that the City should have followed-up by denying the application as was proposed at the time, or, at least required additional studies looking into potential impacts.

In his formal ruling, Taylor wrote that shutting down the store or ordering some type of mitigation would be impractical. "...[It] is simply too late to afford the petitioner the relief it seeks. The rebuilding is over and the supermarket is open; nothing would be gained (and potentially much lost) by ordering the City to set aside project approvals at this late date."

The ruling may cast a shadow as far as North Park, especially for those denizens fighting what they say is an illegal rebuild of a Jack in the Box fast-food restaurant.

http://www.kpbs.org/news/2013/aug/16/roundtable-filner-saga-rolls-north-park-vs-jack-bo/

Walmart's empty pledge to leave the exterior walls intact were also made by Jack in the Box on their application to renovate a drive-through restaurant near the intersection of Upas and 30th Street.

http://www.sandiegoreader.com/news/2012/feb/01/citylights2-jack-in-the-box-north-park/

The end-around by each company shows obvious gaps in the City's permitting process. And, residents surrounding controversial projects are now having to try and fill those gaps in court.

All North Park residents can do is hope the similarities with Walmart stops there and the judge does not make them live with the City's mistake. The two sides are expected back in court on September 13.

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Comments
11

This is very interesting. By ordering the city to declare that it didn't comply with CEQA, the city may owe have to compensate the plaintiffs in Sherman Heights (and NP, later) in some way.

Aug. 18, 2013

A ruling from Judge Timothy Taylor that describes but doesn't uphold existing laws and regulations.

This is the same judge who REGRETFULLY found that Irwin Jacobs didn't have a right to build a pay-for-parking garage in Balboa Park and destroy the Cabrillo Bridge in the process.

Maybe it's a good thing that Superior Court hours have been reduced, considering these empty rulings.

Aug. 18, 2013

Complaints need to be filed with the state contractors licensing board against the contractors who went ahead and built the structures without proper permits. At the very minimum the contractors should have their licenses suspended for a year or two.

Aug. 18, 2013

Jack in the Box feeds a diverse community that includes elderly and disabled individuals.

A drive thru will continue to offer them and the entire community a convenient method to order and pick up their meals. Removal of the drive thru denies these individuals their choice to remain in their vehicles

Aug. 19, 2013

Miguel: Good try!

Aug. 19, 2013

Unloading and then loading mobility equipment adds an extra fifteen to twenty minutes. "Try" it sometime.

Aug. 19, 2013

Miguel: driving to another Jack-in-the-Box where drive-thru is allowed takes 5 minutes. Driving to Suguaro's 24 hour drive-thru taco shop takes 2 minutes: try it. How many people starved to death during the few months this location been closed? I think you know the answer to that. Jack's has plenty of paid PR people, please don't kick them and their families out of a job by doing their work free for them.

Aug. 19, 2013

The 30th and Upas location should not be as welcoming as other Jack in the Box locations for people with disabilities. People with disabilities should not have the same opportunities as everyone else to participate in the mainstream of American life -- to enjoy employment opportunities and to purchase goods and services. Let's bring back "separate but equal" while we're at it.

Aug. 19, 2013

Notably, in 2012 when the community tried to stop Walmart's demolition of the Farmer's Market building in Sherman Heights, it was Judge Taylor who decided the project could proceed.

Aug. 19, 2013

Seems like the department in charge of permitting is/was in real need of restructuring. I know the city is still restructuring and let's hope it gets better instead of worse. They have had wild swings between being too restrictive to being too permissive.

My experience was the cost of materials and labor was 25% of the total project. 75% of the costs were for permits, fees and crazy studies that the city wanted. Way to restrictive and expensive. Then they go the other way and are too loose.

I believe it's time to have a professionally run building permit department. That may mean that some of the people who have been with the city for a while must go to make that happen.

Aug. 19, 2013

Seems like when the BIG Companies do business with the City, it is always the City's fault when things go wrong, yet when individuals do anything the City is never at fault...

I wonder why?

Aug. 29, 2013

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