Jack in the Box, at the intersection of 30th and Upas streets, before the rebuild, in 2012.
  • Jack in the Box, at the intersection of 30th and Upas streets, before the rebuild, in 2012.
  • Image by Alan Decker
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San Diego Superior Court judge Gregory Pollack ruled today that a complete overhaul of the North Park Jack in the Box was within the scope of the permit. The ruling should put to rest what has been a four-year-long legal battle.

In 2013, a group of residents calling itself the North Park Preservation Coalition sued the city for allowing Jack in the Box to demolish its restaurant located at Upas and 30th streets and construct a new building, despite current zoning that forbids drive-thrus at that location.

THE HISTORY

In 2011, Jack in the Box submitted a proposal to the city to rebuild the 35-year-old restaurant. The company planned to add 234 square feet, extend the drive-thru, and build outdoor seating. Neighbors, however, opposed the plan. They said the proposal would increase traffic, noise, and litter. But most importantly, it was illegal under the city's municipal code. In fact, the city council changed the zoning in 2000 to prevent new drive-thru restaurants from being built in the area. Because it was built before the zoning changes took effect, the Jack in the Box could remain, but only if the restaurant did not close for an extended period of time and if no major rebuild of the restaurant occurred.

The company ditched the proposal and opted to remodel the existing restaurant.

In May 2013, the burger chain obtained permits to renovate the existing restaurant. To ease the neighbors’ concerns, then–construction manager Mike Hogeboom sent a letter to the planning group informing them that the company would not "demolish any exterior walls."

Not long after, residents saw that the restaurant had been completely demolished, save for a handful of studs.

The residents complained of the rebuild to then-mayor Bob Filner. Filner attempted to issue a stop order but had failed to clear it with the city attorney's office before construction began. Filner backed off. The residents then filed a lawsuit in August 2013.

THE LEGAL FIGHT

The neighbors hired attorney Cory Briggs to represent them. In January 2015, judge Ronald Prager found that the group had not filed the lawsuit within 90 days of the permit and was a few days late, thus barring the lawsuit from moving forward.

Briggs and the North Park Preservation Coalition appealed. Last year the appellate court ruled that in fact the statute of limitations had not expired and the lawsuit was sent back to trial court.

Today (September 25), Briggs, deputy city attorney Jana Will, and an attorney for Jack in the Box appeared before judge Gregory Pollack.

After beginning the hearing, Pollack immediately informed the attorneys that he believed the permit allowed for exterior walls to be demolished. He stated that during the course of the remodel crews were forced to demolish additional walls due to dry-rot, which was all within the scope of the permit.

Briggs argued that Pollack would have no way of knowing the scope of the permit because neither the city or Jack in the Box ever produced the original permit, only a revised copy of one. In addition, said Briggs, the company's own construction manager had informed the residents that no exterior walls would be demolished, meaning that the walls were torn down after the permit had been issued.

Deputy attorney Will stated that the city only keeps electronic versions and was not aware if the city had the original plans.

Briggs asked that the judge allow him to depose city workers to testify on the permit process and whether copies of the plans and permits exist.

A judge asked deputy attorney Will whether she would agree. She did not.

"I am not going to subject my clients to abusive depositions by Mr. Briggs," said Will. "This case would never end if we did and Mr. Briggs would continue to raise different issues at the last minute.”

After the hearing, Briggs said his clients had not decided whether to file an appeal.

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Comments

AlexClarke Sept. 25, 2017 @ 4:58 p.m.

Corporate money talks and the public walks.

0

Cassander Sept. 25, 2017 @ 5:30 p.m.

I suspected Pollack would scuttle this case, but at least thought he'd present a fiction less flimsy than "dry rot" (a phrase that could apply to his tenure on the bench). He's had it out for Briggs since he won the Convention Center case on appeal over his ruling. Remember iNewsFarce's corporate-reporting non-story?

No wonder Briggs dismissed his first lawsuit against the city over Business Improvement District taxes rather than have Pollack preside on it—especially as he seemed to agree with the city that San Diegans for Open Government had no members and no standing (yet another tactic without fact).

Looks like Pollack would better serve the people of California if he retired.

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jnojr Sept. 26, 2017 @ 4:34 a.m.

Wow, I wish I had so few problems that I could sit around worrying about the walls of a Jack In The Box.

1

SaintJerry Sept. 26, 2017 @ 7:47 a.m.

Buy a house in that neighborhood and you will have a problem. How about one less JITB and more community centers? Oh, wait then corporations would have to take second chair to the people. More JITBs are exactly what any city needs: bad food, traffic, congestion (in the morning, noon, and dinner time), and trash that will inevitably be transferred from the JITB area to the adjacent neighborhood. Before you corporation-huggers start claiming "more jobs" would be available, think about what types of jobs would be available (low paying, part time ONLY).

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dwbat Sept. 26, 2017 @ 11:59 a.m.

I don't know about that JITB, but the one in Hillcrest attracts the homeless, esp. for the bathroom. So does the Carls Jr. in North Park. If you are a customer, would you want to use their restrooms these days? I don't THINK so, even if they are cleaned daily with 10% bleach solution.

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Visduh Oct. 5, 2017 @ 4:30 p.m.

The concept of "grandfathering" non-conforming uses is a fair one. And it should allow the non-conforming use to keep up the property, lest it become blighted. But I cannot think of a case where a total demolition and replacement was considered a continuation of the non-conforming use. As I read the description, the judge just ignored the idea that anything done to upgrade the restaurant operation had to keep to the continuing use, and not expand it. Yet that's what he did. Briggs won one appeal on this case. I'd say he has a good chance of prevailing on this one, and having the thing sent back to the trial court. But if he does, it will land back in the court of this same judge who will cut him no slack, and who will be really PO'd that he has been smacked once again. Is there any way to win? Only if there's a new judge assigned.

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