PACIFIC COAST OFFICE BUILDING: A STUDY IN NON-DISCLOSURES

April 12, 2011: A sad day in the history of Mission Valley's south hillsides: Project approved 6-2 with Faulconer, Young, and Lightener changing their 2009 votes against it. God help the valley's habitat with Lorrie Zapf as City Council member in charge. At least Council members Todd Gloria and Marti Emerald had the depth of perception to see through this project's nonsense such as a visual review not including the very road the building is planned on.

May 6, 2010 update: Draft EIR comments due June 16, 2010. Comments can be emailed to DSDEAS@sandiego.gov with project name and Number in SUBJECT line. Project Name: PACIFIC COAST OFFICE BUILDING. Project No. 54384/SCH No. 2005091022. The DEIR correctly states that the No Project alternative is the "environmentally superior" option.

June 10, 2009 UPDATE: City Council again grants appeal 6-1. City Council, led by Donna Frye, required an EIR if this proposal is to proceed. Landowner attorney Mike McDade (who nicely acknowledged that appellants are persuasive) threatened to take case back to court--which appears to be a steep and slippery slope IF he still thinks he can recover money from the City for denying his development. The Court would most likely rule that an EIR mandate from Council is not the final decision of the City and again deny the suit as untimely. Thanks not only to Council member Frye (who literally laid down the law by reading the Mission Valley Plan Hillsides language into her motion), but to Council member Emerald for seconding the motion, and Council members Young, Faulconer, Gloria, and Lightner for approving the appeal. History of the appeal votes: 7-0 September 26, 2006; 6-0 July 31, 2007 (later reconsidered and re-voted 4-3, October 2007); and 4-4 December 4, 2007. The latter tie vote is why the Court ordered a new hearing--to comply with local code requiring a majority vote (5 of 8).

Landowner, Dr. Robert Pollack sued the City of San Diego in February, 2008. The suit alleges "taking" of his property. However, a city can shield itself from takings claims when public safety issues are involved. The Penn Central v. City of New York, U.S. Supreme Court "takings" case states:

"(a) In a wide variety of contexts the government may execute laws or programs that adversely affect recognized economic values without its action constituting a "taking," and in instances such as zoning laws where a state tribunal has reasonably concluded that "the health, safety, morals, or general welfare" would be promoted by prohibiting particular contemplated uses of land, this Court has upheld land-use regulations that destroyed or adversely affected real property interests."

The Mission Valley Plan restricts development above the 150 foot elevation contour, in part, due to "public safety" concerns. In this case, inadequate brush management is proposed (less than Code required 100 feet width). Also, Scheidler Way access road exceeds the allowed grade for fire truck access.

Erosion issues at the site are mentioned in the 2008 Grand Jury Report on Development Services which states:

"The applicaton for the Pacific Coast office Building specified a building that would rise to nearly 200 feet--50 feet i.e. 33% higher than the recommended height limit in the Mission Valley Development Plan. The proposal recently rejected by City Council would REQUIRE AN INTRUSION INTO DEDICATED OPEN SPACE TO ENSURE A MANDATED 100-FOOT BRUSH CLEARANCE ZONE. (BRUSH CLEARANCE ZONES CAN EXCEED 100 FEET, BUT CANNOT BE LESS.) THE BUILDING SITE HAD BEEN FOUND TO BE AN EROSION AND LANDSLIDE HAZARD ZONE APPROXIMATELY 15 YEARS AGO. The proposal suggested, apparently with DSD approval, that this is not true, but the proposal calls for 160[0] feet of retaining wall[s]. Various versions of a Mitigated Negative Declaration (MND) were prepared, but all seemed to CONTAIN ERRORS OF OMISSION. WHEN THE CITY COUNCIL REMANDED ONE PROPOSAL TO THE PLANNING COMMISSION, THE PLANNING COMMISSION MERELY APPROVED IT AGAIN; THERE IS NO INDICATION THAT THEY CARRIED OUT THE REST OF THE COUNCIL'S REQUESTS. The MND for the proposal has now been rejected de facto by the City Council. (The City Council did not have enough yes votes at the meeting when the MND appeal was considered." (p. 4 GJ Report; CAPS added above for emphasis).

The City could simply cite these public safety laws and the Grand Jury Report in defense of any takings claim. Also, the fact that the landower knew in advance that there were legal problems with the land and paid pennies on the dollar ($250,000) for five acres (rather than nearly 3 million dollars/acre for recent Mission Valley floodplain land), makes his "takings" case very weak. Let's hope the City Council is not intimidated by such litigation.



Landowner attorney Mike McDade 2 page letter to City acknowledging a Mission Valley Plan is required to exceed the 150 foot line:



1992 Mission Valley Plan Amendment document which shows Council intent was to protect this and several other south hillside lands.
Page 1 of the 5th (current) MND which mis-states City Council direction "review the alternatives to reduce the impacts."

=======================================================

City Council voted 4-4 December 4, 2007 to grant appeal/require EIR. Since 5 votes are required by CEQA and the City Charter to approve the environmental document-- Mitigated Negative Declaration (MND), the vote has the same effect as granting the appeal: the Pacific Coast Office Building cannot go forward. Special thanks to Council member Frye for making the motion, Council member Faulconer for seconding it, and Council members Atkins and Young for voting for the motion.

The appeal of the same project was granted September 26, 2006. The City Council also heard this appeal July 31, 2007, October 30, 2007. Not once did any Council member make a motion to approve the MND.

SUM:

In September 2005, the landowner, Dr. Robert Pollack and Development Services Department, circulated the MND without any mention of the proposal's legal conflicts with building above the 150 foot elevation line (designated open space) even though this is prohibited by the Mission Valley Planned District Ordinance and the Mission Valley Community Plan. Public comments at the November 2, 2005 hearing sent the MND back to the drawing board for the first of four revisions (5 editions). The September 26, 2006 granting of the appeal required Dr. Pollack "to review the alternatives to reduce the impacts" above the open space line. Instead of following Council direction as required by law, he submitted the same project rejected by Council! Council member Frye sternly lectured his attorney, Michael McDade at the October 30, 2007 hearing for not following Council direction.

Dr. Pollack bought the 4.94 acre parcel in early 2004--for $250,000---pennies on the dollar for Mission Valley office land. Dr. Pollack is reportedly planning to sue the City for millions for "taking" his land. McDade has threatened this at Council and in writing. However, the U.S. Supreme Court exempts cities from "takings" claims when public safety legal restrictions apply. The Mission Valley Plan restricts development above the 150 foot line in part due to public safety issues such as fire and unstable soils. Also, the only access road, Scheidler Way, exceeds the CA Fire Code restriction of 16% grade.

NOTE: On or about December 9, 2007, this website was hacked and deleted, along with all other parts of the RVPP webiste. The webhost is looking into who may have done it.

Dr. Pollack attorney Michael McDade letter acknowledging that encroaching above 150 foot line requires Mission Valley Plan amendment: (Also notice on stationery that Planning Commission Chair Barry Schultz formerly worked for McDade's lawfirm--at least as recently as June, 2004. Schultz chaired the 2 Planning Commission approvals of PCOB (June 2006, May 2007) without mentioning this.
PACIFIC COAST OFFICE BUILDING LOT:



Mitigated Negative Declaration with mis-stated City Council direction "to review the alternatives to reduce the impacts" (no mention of "...reduce the impacts."


1977 EIR describing unmitigated impacts of similar sized office building:


City staff stating Plan Amendment required for encroaching above 150 foot line:

San Diego Reader article
CITY OF SAN DIEGO, MTDB (NOW UNDER SANDAG) 12 YEAR VIOLATION OF FEMA FLOODPLAIN REGULATIONS
WHY BOYCOTT CUSH AUTO GROUP?
RIVER VALLEY PRESERVATION PROJECT
MISSION CITY PARKWAY BRIDGE
MISSION VALLEY YMCA
BLOG OF SAN DIEGO LINKS TO PCOB DOCUMENTS
See December 5, 2007 PCOB story on Blog of San Diego
MISSION VALLEY MOTION MIXUP: READER STORY
DEVELOPMENT ON A SLIPPERY SLOPE: July 12, 2007 READER STORY ON PCOB
MISSION VALLEY PROJECT MAY VIOLATE CODE: 2005 READER ARTICLE ON PCOB
CITY ATTORNEY MEMO SUPPORTING EIR
QUARRY FALLS MAY BE HAZARDOUS TO YOUR HEALTH
HANALEI HOTEL EXPANSION INTO FLOODPLAIN
STARDUST GOLF COURSE DEVELOPMENT AGREEMENT EXPIRES: READER STORY
GRAND JURY REPORT DESCRIBING PROBLEMS WITH PCOB: SEE PAGE 4