Ken Leighton 2:46 p.m., Oct. 15
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.