Council Candidate Whitburn Denounces New 301 University Project

Developer Claims Absolute Right to Build on Site Without Community Approval

by MARK GABRISH CONLAN

Copyright © 2008 by Mark Gabrish Conlan for Zenger’s Newsmagazine • All rights reserved

Flanked by about 20 community activists as well as city attorney Mike Aguirre, District 3 City Council candidate Stephen Whitburn called a press conference September 7 to denounce the latest incarnation of the controversial 301 University high-rise tower. Held in the parking lot of a mini-mall at 4th and University, one block away from the site of the proposed development, Whitburn and two community activists, John Taylor of Save Hillcrest and Nancy Moors of the Hillcrest Town Council and Hillcrest Business Association, said the new proposal for two separate towers on the site would add to Hillcrest’s already notorious traffic congestion and destroy the village-like character of the neighborhood.

The original 301 University project was proposed in 2006 and approved by the San Diego City Council on an 8-1 vote, with District 6 Councilmember Donna Frye the only vote against it. However, a group called Friends of San Diego sued the city in state court to block the project on the ground that no environmental impact report had been done on it and it would forever change the character of Hillcrest. San Diego County Superior Court Judge Linda Quinn agreed, and issued an order blocking the project from going forward.

“The people of Hillcrest fought successfully against the proposal for a huge 15-story building that would tower over everything in this neighborhood and make the traffic even worse,” Whitburn said in his press conference. “So what do [the developers] do? They propose two buildings that are even bigger, and the city government says that the neighborhood here, and the people who live here, have no say in the matter. Well, the people of this neighborhood have every right to have a say in this matter, and that’s going to start here today.”

The original proposal was for a 150-foot building; the new plans are for two towers on the same site, one 195 feet tall and the other 170 feet tall. Developer Bruce Lightenberger of La Jolla Pacific and its subsidiary, Urban Properties (UP), Inc., told Zenger’s that the project had been redesigned and made taller to reduce its “massing” on the site, so there would be a “punch hole” — a space — between the two buildings instead of a single frontage taking up the whole block. He also said that the new proposal would actually be smaller than the old one, even though it would be taller.

Whitburn argued that Judge Quinn’s decision meant that she agreed “that the project had not been given a proper environmental review; [that the city] had not had a chance to look at the traffic impacts of the project and how it would change the very character of the community of Hillcrest and the surrounding neighborhoods. The judge sent the developer, at that time, back to the drawing board. He told them to do a proper environmental review, and he ordered the city to pay the community’s legal bills.”

When Zenger’s associate editor Leo E. Laurence interviewed Lightenberger two years ago on the original project, he was openly contemptuous of the argument that his project would change the character of the Hillcrest area. Lightenberger said that an 83-year-old woman who’d complained that future generations would never know of the small-scale, pedestrian-friendly ambience Hillcrest had once had if his project was built was “absolutely right. We can go back to the Indians and say, ‘Gee, we’re sorry we’ve changed your neighborhood.’ The time has come and we are ready to go up.”

This time around, Lightenberger was less in-your-face but equally emphatic that the current character of the surrounding blocks isn’t a legitimate issue for the city to consider when approving his project. “It depends on what you define as ‘neighborhood,’” he said. “If you look at the five, six or seven blocks around the area, there are tall and massive buildings in the area.”

Lightenberger said he is having an environmental impact review done on the project, but that the other parts of the 2007 court ruling don’t apply to him or his companies because they weren’t parties to the action — Friends of San Diego sued the city, not the developer — and because this is an entirely new project with nothing in common with the old one except that it’s designed for the same site. In fact, Lightenberger said that because his project fits in with the current zoning for the area, the city has to let him build it regardless of what the neighborhood activists say.

Nor does the Interim Height Ordinance (IHO) passed on July 8 by the San Diego City Council to put a temporary (2 1/2-year) moratorium on high-rise projects in Hillcrest pending an update of the Hillcrest community plan, stop his project. The ordinance restricts new buildings in the Hillcrest/Uptown neighborhoods to 65 feet and in Mission Hills to 50 feet. “It clearly states,” said John Taylor of Save Hillcrest at Whitburn’s press conference, “that no permits or applications [for buildings taller than that] shall be issued after July 29. And this developer submitted an application on August 21.”

Not so fast, said Lightenberger. “We’re grandfathered in,” he claimed. His argument is that the IHO didn’t become effective until one month after its final approval by the city — which was August 29, eight days after he submitted his application. “One of the reasons we submitted it when we did was to protect our rights as a property owner,” Lightenberger told Zenger’s. There’s a 200-foot height limit [under the previous community plan] and we have certain rights as a property owner, and that is why we proceeded with the building design with this ministerial process.”

The word “ministerial” usually means that the property owner has an absolute right to proceed with the project, and the city has no discretion over whether or not it goes forward — and that, Lightenberger said, is exactly the claim he and his companies are making. “We submitted this to the Building Department rather than the Planning Department. There are no deviations or variances. We are in compliance with the zoning for the property.”

Lightenberger is also confident that even if the community files a lawsuit to block his new project, he’ll win. He cited a precedent for a project called Los Arbalitos at 6th and Upas, whose developer prevailed in a community lawsuit at trial and won again on appeal.

During his press conference, Whitburn noted that unlike the previous 301 University proposal, the new project offers no public parking. It was the prospect of additional parking in the neighborhood that persuaded the Hillcrest Business Association (HBA) to endorse the original 301 University in 2006 — breaking ranks with the Uptown Planners, the city-credential neighborhood planning group for Hillcrest and its surrounding neighborhoods, who opposed it from the get-go.

Asked why the new proposal doesn’t include community parking where the old one did, Lightenberger said, “That was one thing I thought we had worked with the community on, and it came back in our face. By adding that [community parking], it added three stories to the design — and the community came back against us on that” [the total height of the building].

Lightenberger was also asked about the economics of his project and why he considers it feasible in the current housing-market bust. “We certainly think the market is going to change,” he said. “This project isn’t going to close units in 2 1/2 years at the minimum, probably closer to three years after we get documentation from the Building Department, and two more years for construction. I wouldn’t want these units on the market now, but we think the market will change.”

According to Lightenberger, the project will still contain commercial space on the ground floor of each building and residential units above — but the residences will be rental units, not condos as in the original project.

At his press conference, Whitburn focused less on the developer and more on the city. “How is it, I ask, that our city government thinks it’s O.K. for La Jolla Pacific Development to submit new projects that exceed the height limits in Hillcrest even before the height limits have taken effect?” he said. “How long have the city bureaucrats known that these developers were once again going to thumb their noses at the residents and the people of this neighborhood?”

Whitburn tied in his opposition to the new incarnation of 301 University to his City Council campaign, and in particular his call for the Council to pass a “Neighborhood Right to Know” law, requiring that neighborhoods receive word of future development plans in time to mount an effective community response and be in on the permit process from the beginning. “Let’s work together to make sure that whatever is built here complies with the new height limit; that the public is involved in the process; that any new project makes this neighborhood better … and that our city government is working for the people,” Whitburn said.