How to Measure the 30 Foot Height Limit in Ocean Beach and Point Loma

by on June 29, 2015 · 32 comments

in Culture, Environment, History, Ocean Beach, Politics, San Diego

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Portugal Place, October 2014

Originally posted June 29, 2015

Editor: At a recent Ocean Beach Planning Board meeting, there was some genuine confusion over just how the 30 foot height limit is measured on a building within the coastal zone, particularly if the building is on a slope or is partially below “grade”.

The following is an instructive discourse on how to actually do that sacred measurement by Geoff Page, a former long-term member of the Peninsula Community Planning Board. Page ended up in a dispute with the San Diego city’s planning department, called the Development Services Department, over the height on a building on Avenida de Portugal over on the east side of the Peninsula.

By Geoff Page

There continues to be confusion as to how to measure a building so that it conforms to the 30-foot height limit.  I thought I had a pretty good idea of how this was calculated but learned some things had changed.

I also learned that the Development Services Department (DSD) has started using a twisted interpretation that resulted in a building on Avenida de Portugal being 36 feet high.

I would like to explain what I have learned about how height is to be measured.  There are three issues.

The first issue is the question of where on a lot the measurement is taken from.  The second issue is wording that the City has brought into the measurement language.

The third issue is the worst one, allowing measurement from future structures on a site, not existing conditions.

Where to Measure From?

The first issue boils down to the question of whether you measure from the low point on a lot or the high point on a lot. In the past, the measurement was taken from the low point on a lot. A building on a slope, for example, had to step back up the slope so that no part of the building exceeded the 30-foot height limit.

In the 7th update of the Municipal Code (MC), the language was changed to bring it more in line with what the 1970 Coastal Height Limit Proposition D actually required. The language in Prop D was simple and clear. It merely stated that building height was to be measured according to the 1970 Unified Building Code (UBC).

Here is what the 1970 UBC said:

Paragraph One, Section 507

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.

Note that the language says “from the highest…”

By adhering strictly to this language, a building could be 40 feet tall at the bottom of a slope as long as it did not exceed 30 feet at the top of the slope. A 10-foot maximum elevation change was included in the language.

It appeared that the City’s MC had actually added enhancements to the height limit by measuring from the low point and requiring the stepping up pattern. What the 7th update did was to remove those enhancements.

This still seems to be one of the points of confusion but I have to agree that Prop D is being adhered to in this interpretation, the measurement is taken from the highest, not the lowest, point adjacent to the structure.

City Stretching and Mixing Definitions

I’ll use the City’s own words for this. The project on Avenida de Portugal sparked an email discussion I had with the DSD. The City allowed a new building’s height to be measured from the level of dirt in new planters, several feet deep, that were to be built around the new structure.

The building was able to be constructed five to six feet higher than it should have been. Here is how the DSD responded when I asked how the City determined the height for the building on Avenida de Portugal – from Bill Teachworth, a structural engineer with the city:

Based on prop D the building height is measured to finished grade which is defined as the lowest point between the face of the building and the property line.

If the property line is more than 5 feet away from the face of the building, than grade is defined as the lowest point between the face of the building and a point 5 feet away from the building. Because of that definition, prop D allows building retaining walls around the building to establish finished grade. (My emphasis.)

It is depressing to deal with the people who make these decisions at the DSD because they make it clear they are either wrong in their interpretation of the MC or are intentionally misrepresenting it. Neither Prop D nor the 1970 UBC made any mention of “finished grade.”

And, “finished grade” is not defined as “the lowest point between the face of the building and the property line.” The 1970 UBC does not have a definition for “finished grade.”

Then, the City’s representative made the incongruous leap to say that because of that incorrect interpretation, Prop D allowed grade to be established from retaining walls around the building. The glaring flaw in that statement was that planters are not retaining walls. Just to be clear for everyone, retaining walls “retain” earth behind them and support significant weight. Planters “contain” earth, dirt is placed in structures that are not classified as retaining walls.

Here is what the first sentence of Chapter 11, Article 3, Division 2, (D) (ii) on page 43 of the MC states:

(ii) The base measurement shall be taken from the finished grade in accordance with the 1970 Uniform Building Code.

This introduction of the wording “finished grade” is incorrect because, as I have shown, the UBC did not state “finished grade.”  However, the following sentence in this MC section matched the 1970 UBC exactly:

The height shall be measured from the highest adjoining sidewalk or ground surface within 5 feet of the structure, provided the height measured from the lowest adjoining surface shall not exceed such maximum height by more than 10 feet.

So, why was the City so hung up on “finished grade?” Because, they then made the leap of logic to say that finished grade only meant future finished grade, allowing them to use planters that they completely incorrectly referred to as retaining walls. What a string of tortured logic.

Allowing Use of Future Structure to Measure Height

I then asked the City where Prop D or the Municipal Code allowed a determination of height based on future construction and here was that response:

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 Chehhade

Now, depressingly, here is a different City representative repeating incorrectly that Prop D required measurement from “finished grade” and compounding that by stating the grade could be measured from the soil inside a retaining wall the applicant built around the building. Both glaring errors and it was a planter, not a retaining wall.

I responded that this was an incorrect interpretation of the 1970 UBC, that the measurement was to be made from existing ground, and I received a response that included this:

There is nowhere in the definition of grade the 1970 requires measurement to be taken from the existing surface, it is alwas the finished surface.

Respectfully, Nabil Chehade

First, I repeat, the UBC never said “finished surface.” Second, the City took the position that only a future finished surface qualified as a finished surface and existing grade did not. The 1970 UBC said to measure to an “adjoining sidewalk or ground surface.”

What the City is blatantly ignoring is that the 30-foot height limit is a design limit intended for use as a building is designed for an existing site. The City is now saying that the design can determine the height, which is the old cart before the horse simile. It makes no sense.

It appears to me that the City is pulling what looks like a thin thread between definitions that really don’t matter because the language already discussed is enough.

Here is the thread.

The 1970 UBC’s definition of “Height of a Building” states:

Height of Building is the vertical distance from the “Grade” to the highest point of the coping of a flat roof or to the deck line of a mansard roof or to the average height of the highest gable of a pitch or hip roof.

Then, 1970 UBC’s defined “Grade” as:

Grade (Adjacent Ground Elevation) is the lowest point of elevation of the finished surface of the ground between the exterior wall of a building and a point 5 feet distant 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 distant from said wall.

From “Height of a Building” to “Grade” to “finished surface” language. How the hell the City gets the position that “finished surface” only means the future finished surface is a mystery.

To conclude, the biggest issue facing us all is the idea that a building’s height can be measured by the design and not by existing conditions. Every design that can will include a way to raise existing grade in order to push buildings ever higher. This is truly disturbing.

{ 31 comments… read them below or add one }

Nikki June 29, 2015 at 2:17 pm

Very well explained. Too bad the City chooses to make/change the MC to suit their or the developers needs. How about the new condos on Scott St.. 30 feet? Maybe…

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Blake June 29, 2015 at 4:31 pm

Thanks for the thorough explanation, Geoff.

There’s discrepancy between the quoted UBC section on ‘height’ and the Prop D definition (on page 46 linked below,).

“The height of a building is measured to the uppermost point of the structure or any appurtenance placed upon the roof thereof, including signs, penthouses, mechanical equipment, chimneys, vent stacks, spires, or steeples, or other projections.”

The CA Plumbing Code requires a min. 6″ vent stack. Therefore any new-build proposed in OB/Peninsula without an elevation showing vent stacks that is above 29.5′ is a non-compliant design.

I look at a neighbors 30’+ of grey vinyl siding everyday…not the future of OB the Community Plan envisions.

http://docs.sandiego.gov/municode/MuniCodeChapter11/Ch11Art03Division02.pdf

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Geoff Page Geoff Page June 30, 2015 at 9:12 am

You are correct, Blake, the measurement does include anything protruding from the roof.

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Kathleen Blavatt June 29, 2015 at 6:09 pm

Former VOTE (originators of 30 ft. Height Limit) told some of us that 30 ft.height was picked because it gives people 3 stories and a little bit of roof line. NOT 40 feet, NOT enclosed roof decks, NOT merged lots that add stories, and all the other all the other ways they have gone about enlarging 30 ft. To bad the City always pushes the limits and creates it’s own interpretations instead of following the intent of the law! Freud might have had some terms for this disorder!

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hOBie June 30, 2015 at 10:56 am

Great write-up. Thanks Geoff.

I’m curious: is it your opinion that these city employees are on the take (or their boss, or bosses boss is on the take) from builders/developers? Or is it simply a domino effect of one bad/incorrect interpretation (“finished grade”) leads to another, which leads to another, etc.?

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Geoff Page Geoff Page June 30, 2015 at 11:26 am

hOBie, I can’t say with certainty that individual DSD employees are on the take. I can say that the way the system is set up, the potential is surely there. I also can say that they are all under very strong pressure to find ways to get developers what they want. The current head of the DSD is a former land development attorney named Robert Vacchi who came from a very aggressive downtown law firm, Wertz McDade Wallace Moot & Bower. I came across him some years ago when he was representing a property owner I was fighting over a second unit on my street. Make no mistake, he is a friend of developers. The former head of the DSD, Kelley Broughton, left in a hurry after the San Diego Reader showed that Broughton made DSD employees change information so an applicant would not have any negative comments on a big church project. I have no doubt that, if questioned, Vacchi would agree with this convoluted interpretation of the height limit.

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Korla Eaquinta June 30, 2015 at 9:48 pm

Hi Geoff, Thank you for this article. It is more than frustrating. As a lay person, 30′ is 30′ without all the BS and interpretations. However, add the culture of DSD to technical bulletin BlDG-5-4 and you go from something simple to complicated and ridiculous!

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Matthew July 8, 2015 at 10:33 pm

The fact that people cringe over 5′ of clearance is hilarious. We are in one of the worst housing affordability markets in the nation, with future generations slipping through the cracks because a bunch of old boomers shake their rulers at anything over 30 feet.

Priorities in OB = aesthetics > people

How sad.

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Jimmy Do July 9, 2015 at 4:15 pm

Hi Matthew, can you clear up how calling for the enforcement of a building code that limits a structure’s height causes the affordable housing index to worsen in respect to average income folk, i.e., are you claiming taller houses are cheaper to buy? And also: how continued enforcement lubes up the cracks for future gens to slip through? I’m just really lost with what you were trying to say, it seems backwards. To my understanding it’s like you’re calling for higher carbon emissions and less renewable energy use in order to fight global climate change…

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Geoff Page Geoff Page July 9, 2015 at 5:47 pm

Mathew, thank you for that ininformed comment. Your lack of respect or understanding of the importance of the 30 foot height limit is underwhelming. Take a trip to Daytona Beach and gain some perspective on the issue before opining on something you don’t understand.

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RB July 10, 2015 at 7:58 am

I am with you Matthew. But they will never understand that their inflexibility and the endless regulations is increasing the cost of the housing supply in this area and increasing their rents. Comparing a small variance (to include needed parking) here in Point Loma to the structure height in Daytona is just a zealot waging his NIMBY inspired ruler……..

The old boomers should check their blood pressure rather than their rulers.

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Geoff Page Geoff Page July 13, 2015 at 11:42 am

Someone onece said that those who are ignorant of history are doomed to repeat it. You want a closer example, just look at those condo towers south of the Hotel Del in Coronado. And keep in mind also that the 30-foot limit only affects a small part of this very large City, a part that people have worked hard, and are still working hard, to protect. Just go to the east side of Highway 5 and put up all the tall buildings you want. Both of you fail to grasp that the height limit was intended to benefit the whole City, not just a bunch of Nimby old boomers at the beach.

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OB Dude June 21, 2016 at 8:32 pm

I think Matthew and RB are just pulling legs….possibly city employees, or just ball busters :-) If Matt wants “affordable” there are areas for that in SD county but not at the beaches where RE is golden.

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Micporte July 10, 2015 at 8:16 am

one reason we established the 30 ft height limit along the California coast in the 70’s was to protect the natural environment of the beaches and coastal interface zones from over- development, and the inevitable pollution impact, for the preservation of the coastal zones for all the citizens and visitors of San Diego, and California.
Great article, thank you for the information. Thank you for protesting the machinations of the planning department.

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Bob Romero March 10, 2016 at 8:11 am

Why didn’t you just hire a Professional Land Surveyor to sort it all out?

“”So, why was the City so hung up on “finished grade?” Because, they then made the leap of logic to say that finished grade only meant future finished grade, allowing them to use planters that they completely incorrectly referred to as retaining walls. What a string of tortured logic.””

If you’ve ever looked at a Grading Plan, you will see that the grades on the plan are called finished grade, sometimes abbreviated FG, or FS for finish surface(if its asphalt or concrete). By definition they are the future grade. Existing grade is what professionals call what is-well-existing. Sorry to burst your bubble, but that’s that.

Also, if I buy a lot, what’s to prevent me from raising the grade via retaining walls, then proposing my structure to be built after? If I follow the rules, nothing. So I don’t see how taking finished grade into consideration is putting the cart before the horse-it seems like the only sensible thing to do to save someone building their home time and money.

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Ryan June 21, 2016 at 9:18 pm

What about the new structure on ebers and Greene? Seems tall but how did they get through permitting and review so quickly?

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Geoff Page Geoff Page June 22, 2016 at 11:15 am

I just recently noticed the framing was done and I agree that it looks too tall. I’ve asked the chair of the OBPB if they reviewed this project. This one, however, does not appear to be using the same trick of raising the grade. It may be right at 30 feet but I intend to check on that.

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korla Eaquinta June 22, 2016 at 3:55 pm

HI Geoff, I don’t know if you are on nextdoor.com but there is a fire storm over the Emerson & Evergreen 4 story project. The pictures say it all.
Thanks again for this wonderful explanation.

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Geoff Page Geoff Page June 22, 2016 at 4:08 pm

Hi Korla, I was on it but decided to opt out. I have just heard about that project and it bears looking into. From the pictures I saw, the lot looks flat, which would not make it a candidate for this issue but it is worth a look, I agree.

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Christo June 22, 2016 at 8:51 pm

Geoff,
Thank you for taking the time to research and present this in a way that is comprehensible to someone not in the construction field.
Christo

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Geoff Page Geoff Page June 27, 2016 at 12:08 pm

Happy to be of any help, Christo.

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Zen June 23, 2016 at 2:47 am

You have a problem with people digging down into the lot and building up 30 feet from the old line but up to 40 feet from the sunken part of the lot? Maybe I understand you wrong, but there really so no loophole here that allows building more than 30 feet above the level of the sidewalk, right?

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Mary June 23, 2016 at 9:01 am

Anyone know anything about the big one being framed now on Ebers and Greene Street?

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Local One June 26, 2016 at 10:44 pm

Hello Lorie Zapf, our own Lncoln Club elected Council Representative, why are you still silent on this problem created by the City’s own Developmental Services Department?

Oh that’s right, Lorie Zapf only works for developers who “pay to play” with Lorie in exchange for campaign contributions…….

” Public records obtained from Zapf’s office show that Story penned a memo for the councilmember to give to her colleagues. Weeks later, he composed the motion that Zapf was to give at the council hearing, along with preparing answers to possible questions.”

http://www.sandiegoreader.com/news/2013/sep/18/citylights2-did-sunroad-pay-play/

The Local One likes Google for finding out the truth!

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Art June 27, 2016 at 10:02 am

Local One — well said. Wonder what other under the table deals have gone down… Bet this isn’t it

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Judi Curry Judi June 27, 2016 at 5:17 pm

Hi Geoff,
could you call me re: the meeting tonight. If you are going to cover it I won’t.

Thanks,
Judi Curry
619-994-4977

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nostalgic June 27, 2016 at 5:34 pm

Meetings are one component of success – another is a Grand Jury Complaint. Is anybody working on one?

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Geoff Page Geoff Page June 27, 2016 at 5:36 pm

That is actually a great suggestion, that had not come to mind. Thanks.

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Surveyor June 27, 2016 at 7:58 pm

Geoff, I think that the key to this issue is the MC 113.0270. It is what we have been having to abide by for many years. It not only gives the calculations for a building height, it also (in part 2) illustrates the “plumb line measurement”. Which is what the structure “also” has to conform to. It clearly shows that the “lowest grade” is the lowest grade pre or post construction. We have to abide by this same interpretation of “lowest”for BLDG 5-4. ALWAYS have. BLDG5-4 in this case would not gain the developer any additional height than 30 feet. I think it is VERY important for everyone to view 113.0270(a)(2)(A) and referenced diagram 113-02KK. And for what it’s worth, if this is going to be a condo project, it WILL have to come before the local planning group for entitlement processing.

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Local One June 28, 2016 at 6:29 am

Mayor Faulconer and Councilperson Lorie Zapf issued a statement yesterday expressing their support and efforts to find a solution. However, when you look into their level of concern a little bit further back, than just yesterday, you find the truth. Kevin Faulconer and Lorie Zapf are so concerned about their constituents that they haven’t done jack shite since being asked back in 2014……

“Don Sevrens of the planning board produced a letter sent to Mayor Faulconer and (cc’ed to) Zapf in 2014. The letter protests the reinterpretation of building heights under the Coastal Height Limit Overlay Zone (Prop D). It also points to municipal code violations when not measuring from the lower of existing or proposed grades. The letter also asked the mayor to explain when changes had been made and why they were made without going through the board. The letter went unanswered, said Sevrens.”.

Yeah, our politicians are really concerned now…..NOT.

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Milladro June 28, 2016 at 8:32 am

I’ve always wondered how much money the city receives in permitting fees for these projects. Does anyone know?

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