3844 Albatross Street and the grading next to it.
  • 3844 Albatross Street and the grading next to it.
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A developer’s plan to build on a canyon property in Hillcrest sparked an ever-escalating two-year dispute with the project’s immediate neighbors. As the differences have become more contentious, one or the other side has appealed to the city’s Code Enforcement department, the San Diego Police Department, and the Occupational Safety and Health Administration ­— all culminating in a civil lawsuit.

County records show Michael Donovan’s company, SDPB Holdings, LLC, which owns dozens of properties throughout the city, purchased a house at 3844 Albatross Street in 2013 — three blocks west of First Avenue, a block north of Robinson Avenue — as well as three contiguous undeveloped lots within adjacent Florence Canyon. In 2015, Donovan submitted, then withdrew, a proposal to the city requesting a vacation of public property to support construction of multiple single-family residences on the lots.

Backhoe driver moves fallen tree

Backhoe driver moves fallen tree

Donovan had engaged in a similar project in 2014, when he planned to develop five canyon lots near the intersection of Granada Avenue and Fir Street in South Park. That project stalled in the review process. A letter to Donovan from the city’s Development Services department listed vocal neighborhood opposition and the canyon’s status as environmentally sensitive land among the challenges Donovan would face while trying to obtain permits for the project.

3844 Albatross construction

3844 Albatross construction

The city’s Land Development Manual deems steep hillsides of greater than 25 percent grade to be considered environmentally sensitive. Because his Florence Canyon properties also included steep slopes, coupled with neighborhood opposition, Donovan would face regulatory challenges with the canyon development in Hillcrest similar to those he’d encountered in South Park.

Neighbors on Albatross

Neighbors on Albatross

However, the house at 3844 Albatross Street stood on level ground. SDPB Holdings entered into an agreement with Hillcrest resident Pete Samulewicz to build a new residence on this property and subsequently sell it to Samulewicz. Donovan applied for and received a demolition permit entitling him to tear down the existing home.

On January 14th, 2017, Ramona-based general contractor Hillcrest Builders sent a demolition crew, working on behalf of SDPB Holdings, to 3844 Albatross. But neighbors say that some members of the crew bypassed the house altogether. Instead, they drove equipment down into adjacent Florence Canyon and spent the next several days flattening its slopes. While some of the contractors started demolishing the house, others in the canyon took down trees, removed vegetation, and leveled a creek bed that functioned as storm drainage by funneling runoff from University Avenue above it.

Trees cleared

Trees cleared

“They had a permit to demolish the house,” explains Carol Emerick, who has lived across the street from the existing home for decades. “But,” she adds, “they went right down there [into the canyon] and started bulldozing.”

Another neighbor, Dawn Taggett, watched the contractors from her home, next door to the house to be demolished. She recalls, “They came down, they cut down the trees, they flattened out a large portion of the stream bed, they removed a lot of vegetation… it was a bushy hillside, but very steep.”

Emerick, Taggett, and a couple other residents of the short block of Albatross Street — which dead-ends at the canyon — had taken an interest in the proposed development in 2015. They posted fliers to call attention to a June 2015 meeting of the Uptown Planning Committee scheduled to hear Donovan’s proposal in a public forum, and showed up to voice their concerns.

In addition to wishing to protect the canyon, they expressed opposition to Donovan’s request to vacate public land. Specifically, they wished to keep a small island parklet at the end of the block, that Donovan had proposed removing to make room for a house he wanted to build. Lined with trees and palms, the parklet features a bench looking northwest into the canyon.

After voicing their opposition, Taggett and Emerick contend Donovan confronted them and other neighbors outside the meeting, threatening to sue if they persisted, and insisting he would get his way. “We came out, and he threatened each and every one of us,” Taggett remembers, “he said he was going to bulldoze everything, take down all of the trees… he said he would destroy our neighborhood.”

Upon witnessing the unpermitted grading activity this January, the Albatross neighbors reported it to the city’s Development Services Code Enforcement section for grading without a permit, and SDPB Holdings was found to be in violation. However, because the unpermitted work began the Saturday morning of the long Martin Luther King holiday weekend, the south canyon slope, trees, vegetation, and creek bed were razed by the time a zoning investigator inspected the site, on January 18th.

On January 27th, code enforcement issued a Civil Penalty Notice and Order to Donavan and SDPB Holdings, showing the group had violated ten development code sections in “performing grading (removal of trees, vegetation, and earth) on steep slope…without the required inspections or permits.” The notice goes on to state the work created a risk of mud slides, uncontrolled water runoff, storm-water contamination, and storm-drain pollution.

That risk statement was confirmed when an influx of winter storms flooded the newly graded canyon. “That used to be a deep streambed,” Taggett explains, “[Donovan] came through and he flattened it all out. So instead of being channeled to the storm drain, the water dispersed everywhere, and everything was underwater.”

The order levied penalties of “$1000 per violation per day,” beginning January 18th, until such time as the violations were corrected. That included obtaining a grading permit and successful completion of “all required inspections.” It issued a deadline of February 27th to accomplish this.

Hillcrest Builders subsequently fashioned a new storm channel made of wooden stakes and plastic liner to comply with the drainage complaint. However, it could not return the canyon slope, its vegetation, or trees. Instead, SDPB Holdings submitted an application for a grading permit for the affected lots, retroactively.

The city’s Development Services website shows the grading permit application was completed on April 14th — 86 days after penalties were to be assessed. However, to date, none have been. And it’s unclear whether they will be.

When Carol Emerick reached out to councilman Chris Ward’s office in April to follow up on the code enforcement, she received the response, “As you are aware, we have been shepherding this project as well as your concerns, since it first came to our attention in January…but at this time, neither our office nor Code Enforcement will take any further action.”

Asked why no fines had been levied for unpermitted grading after the February 27 compliance date passed, Michael Richmond, deputy director of the Code Enforcement division, issued a statement: “In the event that correction requirements are not met, the City would schedule an Administrative Civil Penalty Hearing to present the case and to seek civil penalties. In this case, plans and application for a grading permit have been submitted as required and are currently in review. To date, no determination has been made to take the case to a hearing. CED continues to closely monitor progress toward compliance.”

To the neighbors on Albatross Street, it appears as though Donovan and SDPB Holdings has succeeded in bypassing the city’s regulatory authority to destroy the landscape standing in the way of his development — and, by applying for the permit to do so after the fact, has avoided consequence.

“They were cited,” says Dawn Taggett, “but it’s easier to ask for forgiveness than permission.”

However, while the grading-permit application has forestalled enforcement of penalties, it can only do so until the city decides whether or not to approve it. To that end, a spokesman for the city pledges that the current, flattened condition of the canyon should not have any bearing — for this application, at least — on its status as environmentally sensitive land, which will “be determined based on the preexisting condition prior to any unpermitted activity.”

Of course at this point, as Taggett points out, “The slope isn’t there to be measured.”

In the meantime, Donovan has followed through on repeated threats to sue any of the Albatross Street neighbors who get in his way. A lawsuit filed May 1 by Donovan’s attorney, Lou Segreti, makes eight separate complaints, including: intentional interference with contract, slander, libel, assault, battery, and infliction of emotional distress.

The latter three charges stem from a minor physical confrontation that took place on March 7th, the lawsuit citing Donovan’s ongoing fear that, “Mr. Emerick is capable of engaging in physical violence.”

That would be septuagenarian Robert Emerick, Carol’s husband and a retired professor of sociology at San Diego State. Both Emericks are specifically named in Donovan’s lawsuit, along with up to 25 other potential “Does” to be named later.

Emerick explains that during a heated conversation that took place on Albatross Street on March 7th, he threw “half a cup” of “lukewarm coffee” at Donovan. Emerick contends he was provoked.

“He’s a Trump kind of bully,” asserts Emerick.

“He is beyond confrontational,” says Taggett, “bombastic and arrogant and aggressive and threatening.”

“He’s a big guy,” describes neighbor Laura Arehart, “very intimidating in his body language, in his tone…in the loudness of his voice.” Arehart, an employee of the San Diego city attorney’s office, doesn’t live on Albatross, but was walking her dog on the block on February 3rd, where she witnessed an interaction between Donovan and Carol Emerick.

This was one week after the code-violation notice was issued, and Carol Emerick maintains that Donovan was angry about the neighbors’ involvement. The older woman claims the taller man stood close to her and again threatened her with a lawsuit. “He said, ‘You just want to smack me, don’t you?’” recalls Carol. “He said, ‘You better have your papers in order. I’m going to come get you.’”

Arehart did not hear that conversation but witnessed Donovan’s manner become agitated when she approached. “Donovan was aggressive in his body language and in his tone,” she says. “He wasn’t polite, he wasn’t professional, he was trying to be combative.”

She adds that Donovan turned his threats on her, a bystander, accosting her in a loud voice, “What’s your name? Where do you live? I’m going to sue you, too!”

The way Robert Emerick tells it, the March 7th confrontation arose out of that February incident. “I did not appreciate the fact that he was threatening my wife out on the street,” Emerick says, but, “I didn’t see him until March.” Emerick was drinking his morning coffee when he spotted Donovan out on the street with three other men. “I went out there and said, ‘Donovan, don’t you ever threaten my wife again!’”

Emerick claims that at that point Donovan leaned in and said, ‘You better get off the street, because you might get hurt.’” That’s when Emerick says he emptied his coffee cup onto Donovan’s shirt. Two hours later, six police officers showed up at Emerick’s home. First, they frisked him, based on reports they’d allegedly received indicating he was armed with a knife. Then, they charged him with battery.

Speaking through his attorney, Michael Donovan declined to comment for this story, due to pending litigation, other than to say, “SDPB is developing the site under valid permits.”

However, his version of events depicted in the lawsuit filing claim is that Mr. Emerick, “began using profanity to insult Mr. Donovan and his workers,” and that, “When Mr. Donovan responded that he too had a right to be on the street in front of the property, Mr. Emerick threw a hot cup of coffee on Mr. Donovan.”

The lawsuit does not specify whether Donovan sought or received medical attention after the alleged assault and arrest. It does claim that Mr. Emerick, “while being handcuffed, raised both middle fingers towards Mr. Donovan in a hostile gesture.”

The battery charge against Emerick was tossed out at his arraignment, but the real punitive damages sought in the lawsuit return to the charge of “intentional interference with contract.”

That’s because, on April 7th, Pete Samulewicz withdrew from his escrow agreement with Donovan and SDPB Holdings, declining to buy the house Donovan is building at 3844 Albatross Street.

The lawsuit contends its defendants, “Engaged in a campaign of harassment…designed to disrupt SDPB’s efforts to develop and sell the property.” It states the defendants did so by making false claims about the project to Samulewicz; that they, “misrepresented that SDPB was operating without valid permits… and falsely stated that asbestos testing was necessary because of SDPB’s demolition efforts.”

Due to pending litigation, Samulewicz declined to say why he withdrew from his agreement with Donovan. The Albatross neighbors involved acknowledge they’ve had contact with Samulewicz, who has been a neighbor of theirs the entire time, living only a couple blocks from the disputed property. However, they uniformly insist they did not mislead him about problems with the property development.

Claims SDPB was operating without valid permits appear true, based on the code violation issued. And the need for asbestos testing is backed up by another series of violations.

OSHA confirms “SDPB Holdings was issued one general citation for failure to assess the worksite for asbestos containing material.” Additionally, Hillcrest Builders was issued 26 citations at the job site, eight classified as serious, including failure to secure work around asbestos-containing materials.

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Comments

CaptainObvious Aug. 31, 2017 @ 1:01 p.m.

The trees are non- native eucalyptus. Good riddance

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Geranium Aug. 31, 2017 @ 10:09 p.m.

CaptainObvious: Invasive and criminal developers are also non-native. If only it was so easy to get rid of them as trees. Your simplistic and snarky comment seems to ignore the bullying and illegal tactics of a developer who is just doing creepy and harmful stuff to make money. Eucalyptus trees have been living in San Diego since the 19th century and provide perches for the hawks in the canyon and provide other beneficial qualities, like shade and carbon storage. They belong here as much as you do.

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SaintJerry Sept. 2, 2017 @ 7:31 a.m.

Never, ever is there a "kind, nice, thoughtful, considerate, and well-meaning" developer; always the arrogant, self-serving, vitriolic, anti-environmental, and bombastic individuals play the part. It's like central casting sends them into neighbors with their bulldozers and documents given instructions to disturb and dismember. Well, mr. donovan you get the part! Unfortunately, the neighborhood gets the shaft! The "trumpian way" is oozing into all areas of life: enjoy America!

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