Portugal Place under construction last April. Board members charge the condos exceed the city’s 30-feet height limit.
Point Loma Planners Believe City Allowed Developer to Build Condo Complex Over 30 Foot Height Limit
By Tony de Garate / Special to the OB Rag
Did the developers pull a fast one – with the help of a compliant Development Services Department staff at City Hall – when they built a four-condo structure featuring three stories over semi-underground parking in Roseville?
The Peninsula Community Planning Board is sending a letter of protest to Mayor Kevin Faulconer, alleging the city allowed the developer to exceed the 30-feet height limit when they built condos named Portugal Place at 3102-3104 Avenida de Portugal and 1120-1122 Locust St.
The board approved the letter 12-0 at its monthly meeting Sept. 18 at the Point Loma/Hervey Library. (See below for text of letter.)
The letter, drafted by Paul Webb of the board’s Project Review Committee and signed by Chair Julia Quinn, charges the city in August of 2013 improperly changed the way it measures height in a manner more generous to developers. Those changes are spelled out in a city document known as technical bulletin BLDG-5-4, entitled “Determination of Building Height in the Coastal Height Limitation Overlay Zone.”
These rules could lead to “radical and intrusive changes to existing residential character” throughout the Peninsula, Webb’s letter charges.
The city measures height as the distance between the highest point of the structure and a point it calls the “reference datum” on the ground. Before the changes, the reference datum had been defined as either the existing or proposed grade, whichever was lower, as stated in municipal code section 113.0270, the letter says.
But the technical bulletin now allows a developer to use the lowest point within five feet of an exterior wall, allowing substantial build up of the grade before determining the reference datum, board members say. In the case of Portugal Place, the developer was permitted to use planters, which also function as retaining walls for the semi-underground parking, as the reference datum, the letter charges.
This definition likely allowed the condos to be one story higher than previously allowed, board members say.
“It is our fear that this will become the template for the development patterns in Roseville and the rest of the Peninsula Community,” the letters states.
The letter also charges the board was never given the opportunity to review or comment on the changes before the technical bulletin was issued.
The 30-feet height limit, which was overwhelmingly approved by voter initiative in 1972, roughly applies to the coastal areas of the city west of Interstate 5, except downtown.
In other Peninsula Planning news:
Pocket Park at Cañon Street Dead-end?
Board members are eying a quarter-acre vacant lot north of Cañon Street and west of where Avenida de Portugal dead-ends as a potential pocket park. The land was once envisioned as a road right-of-way but is now controlled by the city’s Parks and Recreation Department, board Secretary Don Sevrens said.
The site is too small for play equipment but could work nicely as a passive park with benches, landscaping and trails, he said. Sevrens, a former longtime reporter with U-T San Diego, has been studying city documents and meeting with city officials to learn how to make it happen. But some residents expressed reservations, saying they have seen people acting suspiciously at the site.
8 Bedroom, 7,307-sq. ft. Mansion on Sunset Cliffs Blvd Approved
A proposal to tear down a house in a 14,645-feet lot at 875 Sunset Cliffs Blvd. and replace it with an 8-bedroom, 7,307-square-feet house was approved by a 12-0 vote.
Addition to House on San Antonio Ave Approved
A 578-square-feet addition to a house on a 6,260-square-feet lot at 646 San Antonio Ave. was approved 12-0.
Gage Drive Parcel Subdivide Approved
A proposal to subdivide a 54,346-square-feet parcel into three lots at 550 Gage Dr. was approved 10-2.
BELOW: Planners’ Protest Letter, and City Rules and diagram of how to measure 30 feet.
Here is the Peninsula Planners’ protest letter sent to Mayor Faulconer:
Peninsula Community Planning Board
P.O. Box 7994
San Diego, CA 92167
July 17, 2014
The Honorable Kevin Faulconer, Mayor
City of San Diego
I202 C Street
San Diego, CA 92101
Dear Mayor Faulconer
The Peninsula Community Planning Board has become increasingly concerned over what we have seen to be a reinterpretation of the building heights allowed under the Coastal Height Limit Overlay Zone approved by the voters as Proposition D. This concern has resulted from the construction of a residential project at the corner of Avenida de Portugal and Locust Street which appears to violate the interpretation of the Overlay Zone as it has been applied in the past.
In the past, the measurement of height on properties subject to the Height Overlay Zone were measured
from the lower of the existing or proposed grade. The Technical Bulletin “Determination of Building Height in the Coastal Height Limit Overlay Zone (BLDG-5-4)” now establishes the reference datum for determining height as being “the lowest point of elevation of the finished surface of the ground between the exterior wall of a building and a point 5 feet distance from said wall, or the lowest point of elevation of the finished surface of the ground between the exterior wall of a building and the property line if it is less than 5 feet distance from said wall (emphasis added).”
In addition to being inconsistent with past practice, it does not appear to be consistent with the definition of height contained within the Municipal Code. Municipal Code Section 113.0270 states “The maximum permitted structure height is specified in the applicable zone and defines the upper limits of the building envelope for a premises. It is measured vertically from the existing grade or proposed grade, whichever is lower parallel to grade, to form an imaginary plane that is, below which all buildings and structures must be located, except as otherwise described in 113.0270{a}(4) (emphasis added).
In the instance of the Avenida de Portugal project, height was measured from planters which also function as retaining walls for the semi-underground parking. This has resulted in a structure that is three stories over semi-underground parking. Development patterns in this area have generally been limited to two stories over parking and a building height of 30 feet from the grade existing before construction.
Development in the Peninsula Community is governed by the Municipal Code, the Peninsula Community Plan and the City of San Diego General Plan. The Community Plan seeks to implement the General Plan through the following:
The basic concept of this Plan is that the existing stable residential neighborhoods which comprise most of Peninsula should be conserved. This concept is consistent with the General Plan objective that radical and intrusive changes to existing residential character should be avoided in existing, well-maintained communities.
The pattern of development represented by the Avenida de Portugal project represents just such an intrusive change to existing residential character the Plan policy seeks to avoid. It is our fear that this will become the template for the development patterns in Roseville and the rest of the Peninsula Community.
It is also not clear to us when the changes in the implementation of the Coastal Height Overlay occurred. As the official community planning group for the Peninsula Area, changes in the Land Development Code and other implementation ordinances, rules and policies should be presented for our review and comment. We are not aware that this has ever happened.
Furthermore, we do not believe that the height measurement techniques of the Coastal Height Overlay should be allowed to take precedence over those in the Municipal Code sections that govern building height. The more restrictive measurement techniques should be applied to the Overlay Zone as well.
Sincerely
Julia Quinn, Chair
Peninsula Community Planning Board
Cc: The Honorable Ed Harris, Councilmember, Second District
The Honorable Laurie Zapf, Councilmember Elect, Second District
From the San Diego Technical Bulletin:
{ 12 comments… read them below or add one }
These guys need to get sued in the worst way. It’s the only way they are going to stop.
We have an interesting conundrum on our hands. If we don’t allow for infill residential development, houses will be built from El Cajon to Dulzura and beyond, resulting in more sprawl, traffic and air pollution.
But we have our panties in a wad about a supposed violation of 30′ height limit in a mixed use neighborhood in the Coastal Zone even when views aren’t affected.
At the same time the planning board approves an 8,000 sq foot McMansion on Sunset Cliffs 12-0 and no one makes a peep.
I don’t get it. Where are your priorities?
I don’t agree with how this is framed. If projections for regional population growth hold anywhere near true, there will be plenty of development in places like El Cajon and – to a lesser extent – Dulzura regardless of what happens in the Coastal Overlay Zone. But if you are at all familiar with the zoning in the City and County General Plans, you are well aware that much of the outlying areas have been downzoned, and that the bulk of the growth will be directed towards existing urbanized cores that are near transportation centers and infrastructure.
What is at issue here is that the City has changed the calculations for height in a rather significant and not very transparent way. As with the FAR debate, if the City wants to change the rules in such an impactful way on an issue of such concern to its citizens, let’s have that conversation. There is a public process for that. But please don’t try to slide it through the shadows and wait to see if anyone notices, because they will.
Any developer worth a damn knows that they can use this new interpretation to get another 5′-10′ of height above and beyond the well-established 30′ limit. That’s an extra story for potentially tens of thousands of properties in the coastal zone, and surely at least several thousand. More bedrooms, more cars, more traffic, more overcrowded schools, less parking.
Is this such an insignificant change to you that the City should be able to do it through an internal memo?
And just to be perfectly clear that this is your take here, you feel that the elected advisors on community planning boards are to blame for bring this change to the attention of the citizens who vote for them?
Actually, I believe this change was part of the 7th Update to the Land Development Code, which was approved by the City Council back in 2011 (but did not take effect in the coastal areas until it was certified by the Coastal Commission in 2013). See: http://www.sandiego.gov/development-services/industry/landdevcode/
In other words, this was not simply the result of a Technical Bulletin written by lower-level City staff. It was the result of a legislative action by City Council, which means it did go through the proper review processes (albeit several years ago).
Ultimately, the governing statute for the coastal height limit is Proposition D. If there is any suspicion that this code change may violate Proposition D, then this issue may be worth pursuing. Otherwise I think the Peninsula planners are out of luck.
Well, thanks for wrecking the fun with that clarification, Pete. That’ll teach me to take two years off, haha.
Well I’m still glad they sent the letter. From the looks of those drawings it looks like they can go up 10 feet before they even start measuring for the 30 feet. Even if the City Council allows it, still seems like a “fast one” to me, and the Peninsula Board is right to call them out.
The only thing the 7th update did was to bring the MC back into compliance with Proposition D. There is NOTHING in that update or in any current MC that allows measurement from a new planter that was not in existence when the project was planned. The City ILLEGALLY granted this height and it is a gross violation of the City’s responsibility to the citizens to adhere to the law. If I had the money, I would personally initiate a lawsuit, I agree with an earlier comment, that is what it will take. And, this is only one of the many violations the City grants daily. The whole DSD needs investigation and reorganizing. They are ignoring the parking requirements for new construction or remodeling. They are allowing de facto rezoning of the Peninsula.
I agree, Geoff. Was unaware that the process for the update had been such a public one, but it’s still kinda shady in my view. This isn’t some arcane definition like FAR, where you may or may not have to include 25% enclosed parking, with possible easements reducing the buildable space and all that. We are talking about how tall a building is. There’s really not that much wiggle room in that calculation. Anyone with a tape measure and a ladder understands what that means and can answer that for you.
It’s as if one is being asked to say how tall a room’s ceiling is, but no, we’re not going to measure that from the floor, we are measuring it from this table-top right here. It defies logic and the rules of basic math.
Well, measuring height isn’t quite as simple as you say; on any property with sloping land you cannot simply “measure from the floor,” because the floor is uneven. My understanding is that the 7th Update was intended to further clarify how to measure height on these types of properties. For instance, if you have a highly sloped property, the new provision allows you a little more flexibility to account for the grade differential of your land, rather than forcing you to measure from the lowest point.
However, I do agree with Seth and Geoff that the use of a planter or retaining wall as the base of measurement is highly questionable. Even with the changes from the 7th Update, the MC does not appear to allow a new structure to act as the base of measurement. (And in any case, the lot in question is not steeply sloping, so the additional flexibility granted by the 7th Update should not apply here.) I would be curious to see the actual explanation from Development Services justifying their base of measurement.
Measuring the height of the building from the high point on the lot is actually correct, although it is a change. The City used to measure from the low point and allowed a building to step up a slope. The 7th revision brought the MC back into conformance with Prop D that stated the measurement be taken as provided for in the Uniform Building Code of 1970. Here is what the UBC said:
The height shall be measured from the highest adjoining
sidewalk or ground surface. Provided that the height
measured from the lowest adjoining surface shall not exceed
such maximum height by more than 10 feet.
Notice it says to the “highest adjoining sidewalk or ground surface?” The City changed one word in its documents and instead of “ground” it says “finished” surface, which is not what the 1970 UBC stated. They have interpreted “finished surface” to mean the future finished surface and that is plainly a gross misinterpretation. The City needs to be called out on this and loudly.
It is common practice to have one word completely alter the entire prior meaning: gross, out-of-context yet demonstrative example: I love you – NOT! This is the type of editing that must be monitored by the public thoughtfully.
I wanted to share with everyone the response I received from the city today when I again questioned their measurement method. Here is what they had to say:
“Mr. Page:
Prop D requires applicant to measure height from finished grade. Hence; if applicant build a retaining wall around the building, grade is considered the finished soil’s level. Please see our previous correspondence that was sent from Mr. Teachworth explaining how prop D works.
Thanks
Nabil Chehade”
I cannot express how idiotic this interpretation is. All of us in the Prop D area need to rise up and write the city. Here are emails to use:
“Chehade, Nabil”
“Teachworth, William”
“Ahmadi, Afsaneh”
And the head of the Development Services Department: Robert Vacchi – ravacchi@sandiego.gov