By Geoff Page
The people’s rare August 29 victory over greedy development was well-covered here – and virtually only here – in The OB Rag. The news of the winning effort to appeal approval of a project on Point Loma Avenue was in The Rag the same day.
The following day, Kate Callen provided a detailed report of the hearing in The Rag.
The purpose of this piece is to provide some additional information, including something about how this appeal process works.
The Project – A Proposed Beehive
Just as a quick reminder, a developer wanted to put 20 dwelling units on a 7,000 square foot lot, with nine parking spots. The proposed project would have been on the southwest corner of Ebers and Point Loma Avenue. The lot sits at the east end of the small commercial district and has been an eyesore for years.
The people’s victory hinged on one technicality, that Ocean Beach is an historic district. The mayor’s Complete Communities plan, which the city used to justify this project, specifically states that the Complete Communities plan cannot be used in historic districts.
The mental gymnastics and twisted logic the city went through to argue that OB is not really an historic district was a bald example of the lengths the Development Services Department will go to in order to help a developer defeat the pubic.
The ridiculous effort to argue that OB is not an historic district did not convince the Planning Commission. It was clear that the Commission supported the appeal only because they believed the city would lose if this one went to court. It was not because they sympathized with the public. Quite the contrary.
Acting chair Matthew Boomhower, president of Southern Cross Property Consultants, summed up the results as follows:
I think it’s a great project. Normally, I think I and the rest of us on the Commission would have whole-heartedly supported it and denied the appeal.
None of the commissioners objected to being included in his comment.
Before he made that statement, Boomhower praised city staff for its hard work and said this them:
I hope you take this an opportunity to change the municipal code if the intent truly is to allow for Complete Communities to take place in Ocean Beach then we need to make sure the municipal code is crystal clear and there’s not ambiguity about whether or not it’s there.
Notice Boomhower said “we need to make sure.” We. That made it glaringly apparent why the Planning Commission is a worthless body, they are not there for the public, they are there for the development industry.
The Appeal Process
Everything started with a Notice of Future Decision that the city is required to mail out to people within 300 feet of a proposed project. This was a Process Two project, the second of five decision processes in the Municipal Code. The processes increase in complexity from one to five, Process Two is the second simplest of the five.
The Notice stated:
The decision by City staff will be made without a public hearing no less than thirty (30) calendar days after the date of mailing the Notice of Future Decision. If you wish to receive a “Notice of Decision,” you must submit a written request to the Development Project Manager listed above no later than ten (10) business days from the date of this Notice.
The city does not make it easy, instead of mailing out the decision, a person must request it within 10 business days even though the actual decision will not happen for 30 days. Why not make it easier? This kind of thing is done to discourage appeals, if you did not request the decision on time, you will not get it without further effort.
In this case, Patricia Lewis filed the appeal and engaged attorney Craig Sherman to craft it. Just filing an appeal is now a very expensive matter. Appeals once cost only $100 and were free for community planning boards. In another one of the mayor’s moves to inhibit public participation in government, the appeal cost was increased to $1,000. The planning groups have no money so it stopped them cold.
The mayor’s actions in “reforming” the community planning group system is nakedly represented by the following language on the Notice of Future Decision:
Please note that Community Planning Groups provide citizens with an opportunity for involvement in advising the City on land use matters. Community Planning Group considerations are a recommended, but not required, part of the project review process.
CPG recommendations are “not required” as part of the project review process. Coming before a CPG to obtain a recommendation was once a required part of the project review process. Project review was the whole purpose of CPGs.
The public review part of the process is gone. All that is left to the public is to spend $1,000 and appeal.
This appeal cost increase is something that bears further investigation, especially requiring planning groups to also pay it. If a group as large as a community planning board believes an appeal should be made, that ought to be enough for the city.
The Notice of Future Decision contains the information about how to file an appeal. Craig Sherman put together a lengthy appeal document written in the format of a legal brief with lots of arguments against the project. This was submitted to the Planning Commission and a hearing was then scheduled.
The Hearing
The hearing takes place in the city council chamber on the 12th floor of city hall. Attending a hearing will cost some money either to get downtown or to park downtown. Everyone going up into the building has to pass a security screening process, like an airport. As tempting as it might be, leave all weapons at home.
Once upstairs, attendees need to fill out speaker slips, if they wish to speak. These are on a table at the entrance to the council room. There will be slips to speak for or against an item on the agenda. There are instructions on the window next to the doors that explain what to do. The slips need to be taken to the front of the room, where city staff sits, and placed in a box.
It may be important to fill out a speaker slip even if one does not intend to speak. Once the slip is in, that person can donate or cede their time to someone else.
The hearing opened with basic business of the commission and then non-agenda public comment. Once through all of that, the agenda began. The appeal was the first item on the agenda. City staff did its presentation first.
City staff read almost the entire appeal during its presentation and the resulting city arguments why each point in the appeal was no good. Or, as Kate Callen put it perfectly, the city’s point of view was, “You have no grounds to appeal our decision because we say you have no grounds to appeal our decision.”
Once the city staff finished, the commission allowed time for the appeal proponents to make a presentation followed by the project developer. Lots of OB folks showed up and donated speaking time to Craig Klein, Craig Sherman, and Patricia Lewis.
The commission holds public comment to one minute so the more people who show up and donate time the longer a presenter will have to make a case. More than enough people came to the hearing and gave up time, so much so that there was time left over. That was an OB response.
After the two sides presented, the hearing was open to public comment, which went on for some time and was almost entirely one-sided for the appeal. The project proponent, Tim Golba of Golba Architecture and one other speaker, Wesley Morgan, Treasurer of the YIMBY Democrats of San Diego spoke for the project.
Morgan lives in a 3,000/sf home in Mission Hills and is a professional banker. The chances of a project like this happening in his neighborhood is extremely remote but Morgan was fine having a project like this in OB. The hypocrisy emanating from him was palpable.
Public comment was also heard from people who called in to the hearing. Once all the public comments finished, the focus was on the commissioners.
There was very little discussion. It was clear to this writer that the commissioners already knew that the city’s reasoning about OB’s status as an historic district was legally incorrect. The city attorney probably advised them of this. The speed with which they approved the appeal was a clear indicator of what they knew.
It is entirely possible that this effort was a waste of everyone’s time, our tax dollars, and the appeal costs. City staff probably never consulted the city attorney’s office on its “reasoning.” When the city attorney did see it, the project approval – the subject of the appeal – should have been reversed before it got to a hearing.
It is tempting to look at this as a major victory but that would be naïve. The people won this appeal because of a clear technicality. The developer could try the same thing one block east, outside the OB historic district, and there would be no such technicality to rely on. This fight is far from over.
