Digging Tunnels Under the 30 Foot Height Limit – Part 1

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?

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.

There 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’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

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.