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City emails show employees scrambling to justify North Park Jack in the Box permits

Fast-food chain was not the only one scrambling to find a way around the building code.

A few feet taller, with new exterior and interior walls and fresh coats of paint, and a nice new parking lot, The Jack in the Box on Upas and 30th Street in North Park is now open for business.

It's been a long hard slog for executives who spent the past two years battling the community to remodel the existing 50-plus year-old restaurant. It wasn't just the community they had to convince. The chain's biggest challenge was to try and get around the zoning law which now prohibits drive-throughs from operating at that location. A rebuild, even a renovation costing more than 50 percent of market value would effectively wipe out the drive-through privilege. But after being denied at every turn, executives decided to go around the community and the code by applying for a construction permit, not a development permit. In doing so, they agreed to keep the exterior walls. Weeks later, the only thing left standing were two studs.

Now, the City and Jack in the Box will have to defend their actions in court.

Meanwhile internal emails have been released showing the extent to which development services employees scrambled to find a justification for issuing the permits.

In a July 3 email, obtained through a public records request, Senior Planner for the City Amanda Lee found a way around the drive-through restriction. Lee argued that because the restaurant was allowed some exceptions in the past, such as hours of operation and use of a drive-through, then all of those exceptions would qualify as "previously conforming uses."

"My thought is that if this limitation on hours from [land-use code] 141.0607 is applicable to this site, we might be able to make an argument to apply the previously conforming categories..."

Five days later, after the July 4th holiday, Lee's colleague, Karen Flaherty, a plan review specialist responded to the suggestion. In her email, Flaherty said the directive had already been issued by then Director Kelly Broughton.

"I was informed that because the use is "eating and drinking establishment," the drive-thru hours of operation were considered to be development regulations..." read Flaherty's email.

"It was determined that the new construction was an "expansion/enlargement" that complied with all of the development regulations and could be considered as a Process One construction permit.

"It was determined by our (former) Deputy Director, Bob Manis, that we would not look at drive-thru as a use but as a development regulation."

Three weeks later the interim-director for the department issued the following talking points to be used in case of press inquiries.

"Unfortunately, my prediction in our meeting on July 3rd has come true, we have won the war and lost the battle.

After further review of the land development code and consultation with the City Attorney's Office, it has been determined that the Jack in the Box project can proceed in accordance with the approved plans.

A thorough review of the permit process and a critical assessment of the applicable municipal code sections reconfirmed that the permit was issued correctly.

Through this process it also became very apparent that the Previously Conforming Premises and Uses chapter of the Municipal Code is ambiguous and needs improvement.

It allows for differing interpretations and be used by applicants to extend the use of their previously conforming premises and uses beyond the intent of the code."

Those talking points are likely to appear again in the ensuing legal battle which has a group of North Park residents pitted against the City and a large corporation.

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A few feet taller, with new exterior and interior walls and fresh coats of paint, and a nice new parking lot, The Jack in the Box on Upas and 30th Street in North Park is now open for business.

It's been a long hard slog for executives who spent the past two years battling the community to remodel the existing 50-plus year-old restaurant. It wasn't just the community they had to convince. The chain's biggest challenge was to try and get around the zoning law which now prohibits drive-throughs from operating at that location. A rebuild, even a renovation costing more than 50 percent of market value would effectively wipe out the drive-through privilege. But after being denied at every turn, executives decided to go around the community and the code by applying for a construction permit, not a development permit. In doing so, they agreed to keep the exterior walls. Weeks later, the only thing left standing were two studs.

Now, the City and Jack in the Box will have to defend their actions in court.

Meanwhile internal emails have been released showing the extent to which development services employees scrambled to find a justification for issuing the permits.

In a July 3 email, obtained through a public records request, Senior Planner for the City Amanda Lee found a way around the drive-through restriction. Lee argued that because the restaurant was allowed some exceptions in the past, such as hours of operation and use of a drive-through, then all of those exceptions would qualify as "previously conforming uses."

"My thought is that if this limitation on hours from [land-use code] 141.0607 is applicable to this site, we might be able to make an argument to apply the previously conforming categories..."

Five days later, after the July 4th holiday, Lee's colleague, Karen Flaherty, a plan review specialist responded to the suggestion. In her email, Flaherty said the directive had already been issued by then Director Kelly Broughton.

"I was informed that because the use is "eating and drinking establishment," the drive-thru hours of operation were considered to be development regulations..." read Flaherty's email.

"It was determined that the new construction was an "expansion/enlargement" that complied with all of the development regulations and could be considered as a Process One construction permit.

"It was determined by our (former) Deputy Director, Bob Manis, that we would not look at drive-thru as a use but as a development regulation."

Three weeks later the interim-director for the department issued the following talking points to be used in case of press inquiries.

"Unfortunately, my prediction in our meeting on July 3rd has come true, we have won the war and lost the battle.

After further review of the land development code and consultation with the City Attorney's Office, it has been determined that the Jack in the Box project can proceed in accordance with the approved plans.

A thorough review of the permit process and a critical assessment of the applicable municipal code sections reconfirmed that the permit was issued correctly.

Through this process it also became very apparent that the Previously Conforming Premises and Uses chapter of the Municipal Code is ambiguous and needs improvement.

It allows for differing interpretations and be used by applicants to extend the use of their previously conforming premises and uses beyond the intent of the code."

Those talking points are likely to appear again in the ensuing legal battle which has a group of North Park residents pitted against the City and a large corporation.

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Comments
14

Face it. Zoning is a real mess in San Diego.

Sept. 11, 2013

I think you spell that: ME$$

Sept. 12, 2013

What zoning?

Sept. 11, 2013

Dorian:

Please, enlighten me on this point: why is a City Senior Planner, who is our employee, not Jack's employee, writing "we might be able to make an argument..." Who would be 'we' in this case?

Sept. 11, 2013

That's a fine question you have there, Yank. I guess the answer is that they were looking for ways to clean up the mess they made by issuing the permits in the first place. It will be interesting to see what happens in the lawsuit. -dH

Sept. 11, 2013

Zoning is a tool of politicians to enrich their friends while making it impossible for others to use their property. To attempt an answer to Yankee, the "we" referred to the city staffers who wanted to say yes when the law was saying no. Why did they care? JIB had some juice with the Sanders city hall. The bosses wanted to approve it and have that approval cloaked in the appearance of legality. Hence the hairsplitting.

Sept. 11, 2013

There was a time when property owners had to ask to be rezoned when they did not meet the requirements of the Municipal Code. Skipping that part makes everything go faster - must be part of DSDs process improvement.

Sept. 11, 2013

"It was determined by our Deputy Director, Bob Manis, that we would not look at drive-thru as a use but as a development regulation."

Is Bob Manis back in San Diego? He went to Poway a few years back. If he is back it is bad news for the people of San Diego and good news for every crooked developer around.

Sept. 12, 2013

Pat, Flaherty was referring to previous interpretations. So, no Manis is not back with the City. Sorry for not clarifying. -dH

Sept. 12, 2013

To say that DSD bent over backwards for JIB is putting it mildly, especially since our Mayor (at the time) was the one that was pushing for saying no to JIB...

Suggestion: Get all Council/Staff communications between them and DSD about JIB and I bet that will add yet another level of CYA to this affair.

Sept. 12, 2013

Go after Jack by public pressure on the whole corporation. A corporation selling to the public will respond faster than our City officials. Time to rally, it will be lots of fun. Possible sign: "JACK OFF my sidewalk". Now if we can just work in Carl "Hold" DeMayo, he must be involved somehow.

Sept. 12, 2013

Fortunately, we have some damning documents and emails on our side:

-A request from Interim DSD Director Tom Tomlinson asking CA Jan Goldsmith for clarification on several issues regarding the permitting process, and the propriety of the approval process. This also includes a statement that JIB was out of compliance with the permit that was (erroneously) issued.

-An email from Lee Burdick stating that CA Goldsmith "had opined that the process used to issue the permits was inconsistent with the City’s Land Development Code".

-A letter from Jack in the Box stating that this was to be an interior remodel only.

Of course, the actual dates of these emails and communications in relationship to what the opposition's position was at the time will be critical. If this 'scrambling' was done in response to, and after resident's inquiries and claims, the city will have a hard time justifying the validity of those scrambled cover-ups.

Plus, it is going to be difficult to explain why the original PDP application, and subsequent months--make that years-- of Cycle Issues reports and assessments by DSD, up to and including the hearing before the City Planning Commission, the drive through was consistently and solely referred to as a pre-conforming USE. I don't recall ever hearing the phrase 'development regulation'. Did they all get it wrong during that prolonged process?

Sept. 12, 2013

I'm not for or against whatever is going on with Jack in the Box at 30th and Upas. I am a resident there, walk that street every single day. Yes, I'm careful. It's a busy intersection. What do you expect?

I am curious, though, reading all these comments, about the building going up at the corner of 32nd and North Park Way, which in my mind is an intersection that is even BUSIER than the T-intersection Jack in the Box sits on. Why, if zoning was changed in 2000 to not allow drive-thrus, is this restaurant being allowed to build a NEW drive-thru, and yet Jack in the Box is being sued for their alleged misdeeds and misrepresentations? And if this lawsuit the "neighbors" have against the city goes forward, will this NEW drive-thru that has been permitted not be brought into the argument FOR Jack in the Box?

Sept. 13, 2013

Rosijoni: I am not aware of the exact details but I believe that this area is zoned commercial and that use, whatever that may be, is allowed at that location. The JiB's location is zoned light commercial and residential and is so for the block surrounding the JiB -dH

Sept. 13, 2013

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