4 p.m., Dec. 5
City Attorney and Lawyers from Jack in the Box say Mayor Filner's objections to North Park restaurant rebuild a ploy to divert attention from harassment scandal
Attorneys say Filner used issue to deflect attention from harassment case.
Lawyers for fast-food chain Jack in the Box and the City of San Diego have crafted their defense to a lawsuit from residents over the demolition and rebuild of a drive-through restaurant on Upas Street in North Park.
Their legal argument: The controversy is all part of a master plan devised by Mayor Bob Filner to divert attention away from the current sexual harassment scandal.
The suit, filed August 12 in Superior Court by a group of concerned residents, accuses the restaurant chain of trying to sidestep City zoning laws by misrepresenting the scope of their project.
During an August 14 court hearing, attorneys for Jack in the Box and the City questioned the legitimacy of a letter from then-interim director of Development Services, Tom Tomlinson, to the City Attorney's Office. about the project.
"Note that many members of the community have strongly voiced their opposition to the project. The applicant has shown a flagrant disregard for the welfare of the community and the integrity of the permitting process...This office seeks a determination from the City Attorney if the violation of the ministerial permit, and the misrepresentations of fact to the community,constitute grounds for a Stop Work Order and forfeiture of the vested rights," reads Tomlinson's letter to city attorneys.
In court, lawyers for the defense weren't buying it.
"I'll make an offer of proof, if we need to. We believe that that letter was essentially ghost written at least in part by Mayor Filner and or Lee Burdick. There was clearly a division in the City, from our perspective, in which the Mayor --I think he -- I'm speculating -- wanted to divert attention from other things that were uncomfortable," argued attorney for Jack in the Box Dana Dunwoody from Sheppard Mullin according to an unofficial court transcript.
Jana Will from the City Attorney's Office seconded Dunwoody's argument a short while later when Judge Ronald Prager inquired about Tomlinson's request for legal advice.
"I think if I were provided the sufficient time to obtain declarations that I need to present to you today, that portion of the legal services request form was written by a person named Vince Hall, who is no longer with the City. He's not the top dog.
"So although it's presented as a single document, I think when you break it down, there are bits and pieces of it that really aren't stated based on any real factual basis."
The burden of proof rests with the plaintiffs whose battle with Jack in the Box spans several years.
Problems began shortly after executives approached residents with plans to demolish and rebuild their aging 1961 restaurant. The problem, however, zoning laws had changed since the restaurant opened. The new zoning designation prohibits drive-through restaurants. But Jack in the Box was exempt from the zoning requirement because it had been open long before those changes were made.
Executives refused to acknowledge the land-use designation. In 2012, they proposed a larger restaurant and expanded hours of operation. The residents objected to the plan; as did the North Park Planning Committee; as did the City's Planning Commission.
In response, Jack in the Box approached development services with another idea, the rebuild would be more of a renovation. No changes would be made to the existing footprint.
"The location and the size of the building are not changing. We are not demolishing any of the exterior walls," wrote construction manager Mike Hogenbom in a May 31 letter to the neighborhood planning committee.
Weeks later, all but two studs remained from the old restaurant.
The residents responded with a lawsuit against the City and Jack in the Box.
In court, attorney for the residents, Cory Briggs, responded to conspiracy theories brought up by his colleagues.
"Come on, let's not do this nonsense stuff. Give me a break. Let's just talk about this case. We have got enough political nonsense going on in this city."
Judge Prager, however, denied a request to halt construction. Work will continue at the site. Concrete for the new driveway is expected be poured as early as next week.
The parties will appear back in court on September 13 to set a trial date.