Digging Tunnels Under the 30 Foot Height Limit – Part 1

by on January 28, 2013 · 27 comments

in Civil Rights, Culture, Economy, Environment, History, Ocean Beach, San Diego

Mission Beach coastline

Mission Beach skyline would be very different today if Prop D hadn’t passed iln 1972.

Height Limit Critic Sparks Debate But Important Exemptions Need to Be Acknowledged

This is the first part in a two-part series on the latest debate about the 30 foot height limit. 

New Year’s confetti and the champagne glasses used celebrating the end of  2012 – a year that marked the 40th anniversary of the 30 foot height limit in San Diego – had barely been cleaned up when the assault on that height limit began.  It all started in a January 3rd Voice of San Diego article questioning any positive attributes of the 30 foot limit.

Not exactly like a “D-Day” type assault, but more like a tunnel being dug – a tunnel designed to undermine the coastal height limit of 1972, writer Andrew Keatts questions the basic character of the  height limit, declares that its essential rigidity will be necessarily and periodically questioned by a city yearning to break free, and gives voice to its critics.  The critics believe that because of the 30 foot height limits, all kinds of problems plague San Diego, with rents and property values at the coast being too high.

And because it has limited construction at the coast, the height limit has forced development inland causing the congestion and traffic jams on freeways on communities east of I-5. Better to let more have ocean views, even in high-rises  than to suffer the high coastal values and rents and highway parking lots of those less-fortunate who are unable to live at the coast.

Despite his tunnel vision,  Keatts did create a genuine discussion in response to his article and its supplement. Keatts himself only acknowledged some of the positive aspects of its legacy – the saving of views and coastal access, but does say that the 30 foot height limit … :

has shaped San Diego’s beach neighborhoods, not only by eliminating the large, beach-blocking structures that inspired it, but by creating a uniform three-story townscape from Point Loma to La Jolla.

Keatts goes on downplaying, ignoring, or even misrepresenting other more key results and consequences. A few who support the 30 foot height limit responded making a rack of excellent points – many that we agree with; that Prop D was in the public interest, has resulted in many positive contributions to the quality of life not only for those who do live at the coast but for those who don’t as well, it was a people’s gambit to halt greedy developers, etc.

Roughly there are two sides; those who support it categorically, and those who want to change it.  Those who want to change it are themselves divided into those who want to abolish it and those who want to see it more flexible, loosened up.

Yet neither side acknowledged some of the ways that the 30 foot height limit has already been undermined, with exceptions and exemptions, and that some tunnels have already been dug near and around it.  These need to be explored or at least re-mapped and lit up. Plus a light needs to be shined on other ways the City has historically circumvented and gotten around it.

Yes, it is true, Prop D – or what the 30 foot height limit was called on the ballot when it was passed overwhelmingly by the voters of San Diego – has already been circumvented. Prop D called for no building with more than 30 feet in height within the coastal zone, west of I-5. But look around the coast, and Mission Bay, and downtown – there are obviously many  exceptions to a strict interpretation of its meaning. Naturally, a number of large hotels and apartments in Mission Beach, Mission Bay and La Jolla were already developed or in the pipeline before the voters approved Prop D. But why are there more?

Capri bythesea PB

Pacific Beach’s Capri by the Sea – the building that got the opposition moving, which resulted in the 30 foot height limit in San Diego’s coastal zone.

Key Points About Prop D

Prop D passed overwhelmingly, with nearly 64% of the vote. It’s important to remember that it passed in precincts and neighborhoods across this massive, stretched-out municipality we call San Diego. It passed in Clairemont, North Park, Southeast San Diego by big margins, and at the beach it passed with an 80% vote.

The election was in 1972. But “legal challenges” bogged down its implementation for another four years. To say that there were some legal challenges is to seriously underplay how the building industry immediately threw legal logjams at the people’s electoral victory, filing appeal after appeal.

And the San Diego City Council was no help – many were in the pockets of developers – .  As one veteran of that battle later put it, the general attitude of the Council was  ‘you have no business involving yourselves in our business.’ Yet the height limitation supporters took it all the way to the US Supreme Court – and won (the Supremes refused to overturn the California Supreme Court upholding the initiative), and Prop D was finally implemented in 1976.

The very first exception made was downtown San Diego – which included parts of Little Italy – this was implicit in the ballot proposition itself.  Today, of course, this is a very, very BEEG deal. In 1972 the San Diego skyline was very different.  All one has to do is check out the harbor downtown to see how this exception worked out.

SeaWorldThere have been other exceptions since the early Seventies vote. These include exemptions for SeaWorld, the Mission Brewery, the San Ysidro Gateway to the Americas – all specific pieces of property -, and the judicially-caused exemption for Liberty Station (aka NTC). Other places must have been grand-parented – such as UCSD – which has been building towering edifices for decades.

 The SeaWorld Exemptions

One of the most prominent exceptions is the SeaWorld exemption. This turned out to have been a big – although lopsided – electoral fight. SeaWorld paid for an initiative to be on the ballot – also called “Prop D” – that allowed them to have an exception to the 30 foot height limit – and they spent thousands – yet they wouldn’t disclose what they wanted to build.  They already had their 320 foot  Sky Tower – (originally built in 1969).  The opposition was led by Donna Frye – and they spent under $100.

SeaWorld splashdown ride

SeaWorld’s Splashdown ride (“not a roller coaster…”)

Well-known environmental activist  Carolyn Chase described it on the San Diego Earth Times :

In November 1998, after a huge PR campaign, voters narrowly approved a new Proposition D, giving Anheuser-Busch/SeaWorld a potential exemption to the height limit on its city leasehold in Mission Bay Park.

Proposition D passed with only 50.7 percent of the vote. That’s not exactly a ringing mandate. But SeaWorld sure treats it like one. …

SeaWorld’s management has consistently dodged and obfuscated throughout their pushes to do whatever they want in Mission Bay Park. Before the election, opponents stated that SeaWorld’s intentions were to be able to build towering roller coasters and hotels. SeaWorld’s General Manager at that time responded, “We have no plans to build a roller coaster. …”

That was in 1998. In 2004, SeaWorld opened its Splash Down ride, coming in at 95 feet. Even though local media called it a “coaster-like” exhibit, SeaWorld continued to claim”it’s not a roller coaster, it’s a splash down ride”.  The  electoral efforts to prevent it from being built obviously failed – efforts, by the way, that catapulted Donna Frye, the Woman Who Should Have Been Mayor, into prominence in local San Diego politics.  See SignOnSanDiego (U-T) by Terry Rodgers, May 21, 2004.  In 2011, SeaWorld announced it was installing a real roller-coaster, a 54 foot ride.

Other Initiative Exemptions

Besides the SeaWorld battle, there were  two other initiatives that passed that allowed for exemptions on specific properties, the Mission Brewery and the San Ysidro Gateways to the Americas. Newly-elected US Congress-member Scott Peters  -praising the 30 foot height limit 5 years ago while he sat on the San Diego Port Commission – cites these other exceptions:

Over the past 35 years, this height restriction has been strictly enforced, maintaining the picturesque views in communities like La Jolla and enhancing the quality of life for all San Diegans.

In the past three decades, voters have only chosen to amend the ordinance and allow buildings higher than 30 feet in the coastal zone three times. Those were for specific properties: the old Mission Brewery west of Mission Hills, SeaWorld and the Gateway of the Americas project in San Ysidro.

 This is confirmed in a Memo from City Attorney Michael Aguirre, March 6, 2006, which stated:

The Proposition [D] is codified at section 132.0505 of the San Diego Municipal Code, and has been amended three times by the voters to allow for the historic restoration of the chimney and rooftop of the Mission Brewery building, as well as development at Sea World and at the International Gateway of the Americas.

Peters, by the way, praised the city as it “has some of the most regulated coastal vistas and public access points in the United States,” and the coast is “clearly visible and a daily presence in the lives of many,” and is “not a walled-off and isolated place.” As a member of the Coastal Commission, he found San Diego’s 30-foot height limit “one of the strictest height land-use regulations along the coast,” and that he”wouldn’t have it any other way.”

The Liberty Station / NTC Exemption

Liberty station hotels Hilton

Hilton hotel at Liberty Station.

Another important exception – and another legal battle lost – was the court decision to allow exceptions to the 30 foot height limit on the former Naval Training Center base – former federal land handed over to the City of San Diego  for free.  In a stunning ruling, Brown-appointee Judge Mac Amos allowed that the voters never “intended” the 30 foot height limit to apply to federal land within the coastal zone, even federal land given to the City for city land.

Judge Amos ruled the  City of San Diego had to apply only those portions of local zoning regulations that were consistent with the federally approved base reuse plan, the plan by which NTC was being transferred. The court found that the approved reuse plan for surplus land at a naval training center in San Diego allowed for structures up to 100 feet tall.

The group that brought the suit, Save Our NTC, believed Judge Amos ignored a city Environmental Impact Report that stated that the 30 foot height limit applied, as well as ignoring federal law that states:

“After Federal property (NTC) has been conveyed to non-Federal entities, the property is subject to local land use regulations, including zoning and subdivision regulations, and building codes.”

At the time, activist John McNab  in Alternate News commented:

Voter initiative is supposed to take precedence over government action. In this case, too, Judge Mac Amos found reason to put city interest ahead of voter intent.

On appeal, the Fourth District Court of Appeal ruled in early 2003 that the voter-approved height limitation initiative does not apply to redeveloped land that was part of a military base. (See CP&DR .)

This NTC exception has, of course, allowed large hotels to be built in Liberty Station, right on the waterfront. In the end, Judge Amos’ ruling was just frosting on the cake in one of the largest public-land giveaways  in modern San Diego  history – the handing over of NTC to Corky McMillan. 

Standing back, we can see that we’ve recounted how tunnels have already been dug in and around the 30 foot height limit.  Yet, how exactly is the 30 feet measured? Ah, the devilish details await us in Part 2, as we explore how the City circumvented Prop D for years by the ways it measured building heights, and how, now, perhaps the City is correctly making the measurements as developers and property owners in the coastal zone press and lobby for more exemptions.

{ 26 comments… read them below or add one }

OB Dude January 28, 2013 at 1:36 pm

Anyone know if the new addition to the Holiday Inn near Nimitz/North Harbor Drive is over 30 feet?


Frances O'Neill Zimmerman January 28, 2013 at 2:13 pm

Thank you, Frank Gormlie, for establishing the true history and value of San Diego’s 30-foot height limit as opposed to the Voice of San Diego’s multi-platformed sneak-attack on same.

It’s painful to read about past battles to preserve the height limit: the judicial exception giving carte blanche for developer Corky McMillan’s windfall transformation of the federally-owned Naval Training Center into today’s Liberty Station. Your story reminds me that Sea World’s “splash-down” 95-foot tower was enabled by my favorite Democratic campaign consultant Larry Remer. Looking forward to Part Two’s description of present attempts to undermine the letter and spirit of Prop D.


Randy Dotinga January 28, 2013 at 5:12 pm

Voice of San Diego has a land-use reporter. The land-use reporter notices that we just had an anniversary of an important land-use law. Like all journalists, including this one, the reporter is duty-bound to write stories about anniversaries. He does so.

Big whoop.

As is their wont, the conspiracy-fomenting, black-helicopter-hearing progressives see a plot. When have they not? (Ooo, stand by. I think I might come with a haiku.)



Chris Brewster January 29, 2013 at 7:10 am

The point, as I see it, is that the VOSD journalism in this instance was weak, poorly sourced, and biased, that latter partly due to the lack of historical context of the journalist. It was not VOSD’s finest hour.


Dorothy Lee January 29, 2013 at 8:34 am

Randy, you are just embarrassing yourself, calling people who want the city to respect the old, inner-city neighborhoods’ character “conspiracy-fomenting, black-helicopter-hearing.”
That’s exactly why vosd has few readers, members, commenters, or supporters. Vosd is the third arm of the legless UT, and was always the voice of Jerry Sanders. If Scott Lewis spent as much time doing research (and learning HOW to write and edit) as he did snarking and talking to Rachel Laing and Gerry Braun and all of the Sanders staffers and the UT reporters, there might have been something worth reading in his blogs. Same for the other bloggers at vosd. And the reporting and “research” (I say that with much sarcasm) have always been biased and devoid of anything facts. The article here in OB Rag is the type of research to which you might aspire.
You started it by lobbing insults. Back at you.


Frank Gormlie January 29, 2013 at 9:13 am

“The reporter is duty-bound to write stories about anniversaries. He does so.” If that is so, Randy, then perhaps your reporter could have written his story during the actual anniversary.

And in terms of conspiracy plots, the one you mention, the “black-helicopter-hearing” type are a standard of the extreme right wing, not progressives. At least get your political factions right. Progressives have other conspiracies to mine, such as this one: ‘Mayor Sanders was in the pocket of developers all along’.


unWASHEdWalmaRtthONG January 28, 2013 at 7:29 pm

Put the skyscrapers on Moana & no where else. Make them affordable housing units.


OB Dude January 28, 2013 at 9:31 pm

Like that idea….Moana! Good place for them ….not too far from Subway and Peets Coffee. Add some by the Thursday Club so they have some place to walk to and can attend meetings and functions. A city of Villages idea.


Frank Gormlie January 29, 2013 at 9:39 am

ooh you guys, I’m falling out of my chair laughing so hard.


Dorothy Lee January 29, 2013 at 8:44 am

If you want to see an example of a hulking, ugly, big-box infill project that looms over an old neighborhood, go by 811 25th Street in Golden Hill. The developers, the darlings of insiders in Sanders’ DSD, CCDC, SDAF, and Urban land Institute (among other groups), got away with building over 40 feet at the back alley level, thanks to a revision in muni code allowing grade to be determined at the highest point on the lot (in this case, the lot front).
It is a horrible-looking building, and forever blocks the sun from the small homes behind it.


Judy Swink January 29, 2013 at 8:50 am

I add my appreciation to that expressed by Fran Z. I also would add additional perspective to the Sea World Height Limit Exemption. Although I believe Sea World (by which I mean Anheuser-Busch in St. Louis) thought that passage of Prop. D would give them carte blanche within their leasehold, the quickly learned otherwise.

When Sea World, soon after passage, began preparing to take their first 30+feet projects to the Coastal Commission, SW was directed by the City to prepare a true “master plan” for their leasehold. When the Planning Commission held a workshop to consider the proposed plan, it sent them away with homework for another workshop, then did so a third time before taking action and making recommendations to the City Council.

It’s important to understand that, prior to adoption of the Sea World Master Plan, SW could bring a project to City staff, maybe do an information presentation to MBPC then jump straight to Coastal Commission w/o pausing at Planning Commission or Council. Cutting to the chase, SW ended up with a plan that is now “indexed” into the Mission Bay Park Master Plan thus subject to some requirements not previously imposed, AND now must bring anything over 30′ to MBPC for consideration, then Park & Recreation Board (and it’s Design Review subcommittee), Planning Commission and City Council before proceeding to Coastal Commission. This ensures that the public has plenty of opportunity to consider and respond to 30-foot-plus projects. Of particular note is that the Planning Commission inserted itself into the chain of reviews for future projects, not normally required once a master plan has been approved.

As regards the 54′ roller coaster approved by Coastal Commission in 2011, it’s likely that the necessary review process for projects over 30′ may have been the reason for Sea World’s plan to excavate 24′, to keep it below the 30′ threshold with the required local public review.


John January 30, 2013 at 12:14 am

“Sea World’s plan to excavate 24?, to keep it below the 30? threshold with the required local public review.”

Is that coaster going in on the east side of their property, near the boat launch ramp park… AKA the old mission bay landfill, AKA the Love Canal of the West Coast, AKA the site that could have been cleaned up under Federal Superfund status except Pete Wilson’s consultants Woodward & Clyde suddenly lost the ability to do simple math when they tried to dump it on Ramada Inn?

Well Disneyland had Space Mountain, wonder what Sea World can do with a roller coaster going through a toxic waste dump? “Captain EO”, for environmental outrage?

But really, aren’t those barrels about rusted through by now, and the chemical mixture experiments beginning to seep into the water table?


Judy Swink January 30, 2013 at 9:11 am

John – no, the coaster is to be built farther west of the west boundary of the landfill. You can see just where in a diagram attached to the Coastal Commission staff report at http://documents.coastal.ca.gov/reports/2011/2/F19a-2-2011.pdf The diagram is page 16 of 17.

The diagram hard to read in the photocopy but the new coaster is substantially west of the so-called Splashdown Ride.


Judy Swink January 29, 2013 at 8:57 am

I failed to mention that, as a member of the Mission Bay Park Committee, which held several public workshops regarding the first 30’+ projects proposed, I finally asked in frustration if the “Splash Down Ride” included tracks (thus qualifying as a roller coaster, in my opinion), they were forced to say Yes.


Frank Gormlie January 29, 2013 at 9:40 am

Judy, thanks so much for your historical additions; we need material like that …


Craig Nelson January 29, 2013 at 9:55 am

so does the red trolley.


John January 30, 2013 at 12:15 am

So does the Mission Bay Plunge.


Fred Harris January 29, 2013 at 9:20 am

It’s always funny when the Ronpaulzians at the Voice of San Diego talk out of both sides of their out-of-town mouths. Now they’re attacking the height limit which has preserved our beach communities over the last 40 years. They also have regularly attacked downtown residential development as too many towers and too expensive. Gosh… the only place on the coast without a height limit (other than the Lindbergh Field flight path) is downtown. So what do you folks want at the Voice? Oh… an ocean view apartment or house for $300 a month. And you’d have it without that pesky government regulation or NIMBYs. Right.


Joan Larsen January 29, 2013 at 5:22 pm

The City of San Diego has been ruled by developers for so long that it seems imposssible to remember when there was any concern for the everyday citizen. The “height limit” is the ONLY voice the people have to keep us from looking like Palm Bch Fl. Even the redo of the Navy headquarters area will be at least as high as Shapery and the other high rises that blot our landscape. Until the electorate of this county wake up and clean house, we will be robbed by the” new robber barons”. (developers and their minions
I am a native San Diegan, born and raised, and love my city but to watch greed rule over us is very dis-spiriting. Sincerely, granny


Keith Thompson January 29, 2013 at 6:24 pm

The truth is that prop limiting height of construction created urban spraw. We would be able to have a mass transit system that works if we didn’t have so many freeways/outer developed areas. I can read between the lines also, it is not about developers, it is I got my beach/view and screw everyone else. With so many restrictions on beach use..no drinking, no smoking, no fires, no groups over 15, night time curfew on most beaches…if it wasn’t for access laws for the public to use the beach, the I got mine, this is my beach crowd would close and lock the gates to OB,PB,La Jolla, etc. etc.


Judy Swink January 30, 2013 at 8:06 am

Keith, you’re dreaming if you think the large housing developments stretching out north, east and south would not have been built. Developers wanted large swaths of land to build hundreds of single-family homes. With a population that has increased by the hundreds of thousands in the past 40 years, the coastal strip could never begin to accommodate that growth much less offer the profit margins that developments of the scale we’ve seen have created for those developers.


Chris Brewster January 30, 2013 at 8:09 am

“The truth is that prop limiting height of construction created urban sprawl.” Under this theory, there should be no urban sprawl east of I-5.

As for the ‘I got mine assertion’ about those within the coastal zone, I disagree in some aspects and agree in others. When the 30’ height limit was implemented, real estate values in the beach area were not out of line with other areas of the city. In fact, they may well have been lower. Many of those who owned homes along the beachfront (e.g. Mission Beach) used them as summer cottages and rented them out to college students in winter. The Mission Beach boardwalk, for example, was lined with run down beach bungalows in the 80s. If you think about it, those people would have benefitted tremendously had they been able to sell their dumpy homes to condo developers. The limit actually reduced their value, rather than enhancing it.

The bungalows were gradually replaced in many areas, but not all, with much more valuable homes, and more people seem are living in the area year-round. No doubt that the limit has created increased value for individual homeowners over time, much like the Gaslamp Quarter downtown. It was by no means an immediate result and that same land would be far more valuable if there were no height limit. Bottom line is that I don’t see the implementation of the height limit as being aimed at an ‘I got mine’ attitude. I see it as a ‘protect our beach area” attitude, which gradually resulted in increased real estate value.

As for access restrictions: The no smoking ban has nothing to do with beach residents. It was implemented due to anti-smoking and anti-litter moves, which are similar in parks city-wide. The no-drinking issue, fire restrictions, and night curfews are, indeed, primarily a product of local residents trying to limit use of this resource, mostly by non-residents. I lament the idea that those privileged to live near the coast and the coastline have succeeded in limiting freedoms of those who do not. On the other hand, alcohol bans, for example, are the norm in Southern California, even in places with no height limits. Consider Huntington Beach, for example, were people can’t live adjacent to the beach due to PCH and other issues, but where an alcohol ban has been in place for decades.


Judy Swink January 30, 2013 at 8:45 am

Hi, Chris. I usually agree with what you post in comments but must disagree with your interpretation of the parking lot curfews, alcohol ban and beach fires as the result of beach residents trying to limit access to non-beach residents. Having lived in Mission Beach for 25 years (1970-1995), I know from direct experience that the parking lot closures & alcohol ban were based in public safety.

For many years, residents were disturbed by middle-of-the-night wheelies and loud gatherings in the parking lots. Closures, however, didn’t happen because of noise but because a number of the parking lots became late-night gang gatherings which sometimes became violent, even fatal in at least one case I recall.

The alcohol ban was supported by voters from throughout the city because many people, especially families with kids, often chose not to come to the beach because they perceived the beach and boardwalk as dangerous. We tried to ban alcohol consumption only on the boardwalk & 10′ out from the seawall but problem drinkers just went farther west, screwing things up for the responsible beach users who drank alcohol.

And we do allow fires but only in fire rings for good reason; I’m sure you know of occasions when kids have stepped on live coals because someone carelessly built a fire outside of a fire ring.


Chris Brewster January 30, 2013 at 9:17 am

Hi Judy,

Some thoughts:

“For many years, residents were disturbed by middle-of-the-night wheelies and loud gatherings in the parking lots.” I agree. I also think that as those living nearby increased in affluence, their access to those with the power to limit access increased commensurately. (I live very close to a park and parking lot on Mission Bay that was closed, although I opposed that closure as I viewed it as exclusionary.)

“Closures, however, didn’t happen because of noise but because a number of the parking lots became late-night gang gatherings which sometimes became violent, even fatal in at least one case I recall.” I think this was a tipping point. However, I think that resident’s concerns about the other issues were a big factor and I am not sure if there would have been closures without them. A less onerous approach might have been to close the lots until the problem subsided, then open them again, but once residents got this through, it was not to be undone. Crime is now down significantly citywide, but the parking lots remain closed at night, which excludes nonresidents who may otherwise enjoy a late evening at the beach, quiet or not.

“The alcohol ban was supported by voters from throughout the city.” I agree, although I recall that some areas of the city were far more supportive than others. The impetus for this initiative however, came primarily from activist residents in the beach area.

“And we do allow fires but only in fire rings for good reason.” I am a major proponent of the fire rings for various reasons, but they have been removed from many areas along the Mission Beach boardwalk where they used to be, for example, due to complaints from residents about noise, etc. related to people using them at night near their homes.

As year-round residential use has become the norm, there has been pressure from adjacent residents to keep things quieter, for understandable reasons, but this has the consequence of obstructing access for the general public. That part concerns me because those privileged enough to live near the water should, in my view, accept the public access and public use aspects as part and parcel. As the beach area has gentrified, the tolerance for late night beach parties that were once the norm has more or less ended.


Judy Swink January 30, 2013 at 8:26 am

Keith – I would add that your final sentence about public access requirements is spot on. We can thank the State of California for enacting public access laws and the California Coastal Commission for ensuring provision of public access paths at reasonable points adjacent to private property. On the east coast, there are many states where this isn’t true. The beach is public but, often, you can get to those public beaches only by boat (I grew up there and have experienced this from land as well as by water).

BTW, where did you get the (erroneous) information about groups limited to 15, night time curfews, no fires? There are beach-area parking lot closures at night as the result of bad, even criminal, behavior, but the beach is still open, you just have to walk farther to get there. There are fire rings (even if we have to fight to keep them from time to time), and there’s no numerical limit on groups except in Mission Bay Park where a group exceeding 50 must apply for a park use permit.


ZZ January 30, 2013 at 7:08 pm

I like the two towers in PB. They are attractive and by themselves don’t change the character of the area, in part because the density right around them is pretty low. Cape May Tower is also attractive and not disruptive to the neighborhood, and a couple more buildings like it, even if they were 45 feet or so, could provide some affordable housing.

On the other hand, the wider and lower blocks over Sunset Cliffs are extremely ugly, in part because they are wider and bunched together.


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