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Blog Archives - 2007 First Quarter


Chief Lansdowne says he "protects and serves". Yes but whom? 03/30/07

                                                         by Pat Flannery                                        top^

According to the U-T on April 5, 2005 the three top law enforcement officials in San Diego County,
District Attorney Bonnie Dumanis, Sheriff Bill Kolender and San Diego Police Chief William Lansdowne (see photograph) illegally used the weekly non-agenda public comment segment at City Council to make a joint 20 minute presentation, complete with well-prepared Powerpoint slides, in an attempt to strip Aguirre of his misdemeanor prosecutorial powers. Mayor Dick Murphy facilitated this abuse of public comment by allowing it. The Union-Tribune was notified, as evidenced by the presence of its staff photographer, but the City Attorney, Mike Aguirre, was not notified.

It is no coincidence that the prosecutorial department they tried to wrench from City Attorney Mike Aguirre's control back in April 2005 includes the Public Integrity Unit that is now investigating the man who was Chief of Staff to Murphy at that time, Tom Story. It was a conspiracy then, it is a conspiracy now. And the same people are involved. Aguirre's Public Integrity Unit is still a threat.

Chief Lansdowne says he "protects and serves". Yes but whom?

For decades this city has been run by a Republican elite. Aguirre is a quintessential Democratic outsider. Maureen O'Connor got away with being a Democrat because she married money and had a close personal relationship with Helen Copley and Joan Kroc.

Aguirre could never do that. Nor could Donna Frye. Aguirre foolishly tried to cozy up to them over the last year by being friendly with Sanders. This search warrant spat just shows that nothing has changed. The above three law enforcement officials "protect and serve" their own. There is no way Lansdowne was ever going to serve that search warrant on Tom Story. Aguirre was foolish to think he would. Lansdowne immediately called Dumanis who no doubt immediately contacted Kolendar and now we hear that he also consulted the Mayor! The inner circle went to work. They covered for each other.

Now what? Well, at least this puts Aguirre back where he belongs - with the people. He had no business cozying up to those people in the first place. When he filed his law suit against Story and Sunroad in December I wrote "welcome home Mike Aguirre".

Take another look at the photograph above and you begin to "get the picture". We have a fight on our hands all right - the power elite vs. democracy. The fight is currently about the land we occupy - an urban version of the farmers vs. the ranchers in the Old West. The illegal Sunroad building is an attempt to force the FAA to close Montgomery Field.

As for Dumanis, Kolender and Lansdowne, they are not so smart. The venerable Don Bauder of The Reader wrote a delightful piece on their pathetic April 2005 shenanigans where he called it the "
Keystone Kops coup". Bauder quoted Jim Mills, former president pro tem of the California senate: "They could not have found a better way to make themselves look corrupt and make people sympathize with Mike Aguirre". That applies even more to the latest "Keystone Cop" episode. Finally, Bauder quoted Mills: "People say Mike Aguirre is a loose cannon. But he is shooting at all the right targets."

That about sums it up. The people will prevail in the end. Keep it up Mike.

Proof that you can fight City Hall - and win! 03/29/07

                                                         by Pat Flannery                                        top^

Good news!

The La Jolla citizen group that fought the City's sale of a vacant lot to Hillel, a Jewish student association, has succeeded in getting a judge to rescind the sale. The City will have to start all over and do a full EIR, if it chooses to try again. Surely not. This is a big victory for citizen activist groups and demonstrates that you can fight City Hall.

Here is today's Press Release with full court documents. It is a (deserved) slap in the face for the City. The City behaved abominably in this case. Read my blog dated November 5, 2006. I am glad that this brave citizen group has been vindicated.

The outside attorney who represented the City (and lost) is none other than Scott Peters' former law partner, Suzanne Varco. Hillel will pay the City's legal costs. They should be made to pay the citizens' costs too. Hillel and its attorneys tried to ride rough-shod over the law. It was an attempt at influence-buying and arm-twisting at its worst.

The "mixed-use" use clause and De Anza Cove. 03/29/07

                                                         by Pat Flannery                                        top^

Yesterday, a Judge found in favor of the De Anza Cove residents. They are in fact a Mobile Home Park and must be noticed and compensated according to the California Mobilehome Residency Law. The City had attempted to kick them out without a penny in order to make room for hotels etc.

Most of the buildings above 30 foot in Mission Bay and Pacific Beach pulled permits in the few weeks between Prop D being passed by the people in November 1971 and coming into effect on January 1, 1972. There have been none since.

What will happen when the City is finally rid of the mobile home tenants and it can start negotiating with wealthy hotel builders? Will they be able to get around the 30-foot height limit? Does it have anything to do with the present controversy over the affordable housing density bonus that would have to concede the 30-foot height limit?

The City's proposed ordinance says:

"§143.0740 Development Incentives for Affordable Housing Density Bonus Projects

(a) The City shall grant an incentive requested by an applicant, to the extent allowed by State law and as set forth in this Section.
    (1) An incentive means any of the following:
           (A) A deviation to a
development regulation;
           (B) Approval of a mixed use
development in conjunction with the residential development if the commercial, office, or industrial uses will reduce the cost of the residential development; and if the mixed use development is compatible with the residential development; and if the mixed use development is compatible with the applicable land use plan."

This means that a future developer at De Anza Cove needs only put in some residential units, 10% of which must be affordable by people earning less than $73,200 per annum. The developer can then apply for and must be given a concession from the Prop D 30-foot height limit, for the whole development.

I checked with a some attorneys today. They thought that because of yesterday’s ruling, establishing the existing use as a normal residential mobile home park and the fact that the site had been under such residential use for a long time, a developer would have a case for retaining a small element of affordable housing, which is all he would need.

Such a developer could make a good case based on the elimination of such a large number of affordable units. The State Lands Commission may have a tough time resisting a request to continue allowing affordable housing there, as it has for so long.

As for the Coastal Commission, it is not interested in height limits. It could not refuse a coastal development permit because a State mandated density bonus concession breached a local voter-approved height limit, Prop D.

Other than on
State Lands, a "mixed-use" developer need only put in some residential units, 10% of which must be "affordable" and the entire development qualifies for a density bonus plus up to three "concessions". Perhaps that is how the City intends to "re-zone" the 4,534 acres it mentions in its Land Use Plan.


City Planners vs. the people. 03/28/07

                                                         by Pat Flannery                                        top^

I went to the Community Planners Committee meeting last night. The main agenda item was adopting the Land Use Element of the General Plan.

Look at the land use map below or the full PDF version here. Notice the large area denied to the City planners by the presence of the military at Miramar. It must be driving both planners and developers crazy. If they could get their hands on that huge area, already within the city's boundaries, it would reduce the growing pressure for increased density throughout the rest of the city's 219,241 acres.

Look at the Village Propensity Map. You can see where the planners want to put "smart growth" or "city of villages", or whatever sweet-sounding name they use nowadays for super-densely populated areas. Then look at the table of existing and planned land uses

Notice in particular the planned disappearance of the 8,002 existing acres of vacant land and the growth of Multiple Use land from zero to 4,534 acres. That is a lot of multiple use planned for this city. Where will it go?
Notice also that the amount of space allocated for Roads, Freeways and Transportation Facilities will actually decrease.

So we are going to have increased density with less infrastructure. Smart growth?

The planners say the people will come anyway, that we must plan for increased density. How do they know? We are actually losing population right now and cannot sell our existing housing stock. We have an affordability crisis, not a density crisis.

The problem with the City's Development Services Department and the City's Planning Department is that if development in the city were to slow down, many of them would lose their jobs. Development fees pay their salaries. They have a vested interest in growth and could care less whether infrastructure comes first or never at all.

Therefore the planners are in conflict with property owners in established neighborhoods, who want stability not more density. It seems to me that this adversarial relationship will become even more exacerbated over the next few decades, if the city does not acquire more land. The Miramar area is the only relief valve I see, at least for a generation or two.

The alternative is "not so smart" growth or planning. Just development for its own sake.

How would you like an overnight 73% increase in the value of your property? 03/26/07

                                                         by Pat Flannery                                        top^

Any change in a city's Land Use Code has winners and losers. Consider the potential for winners and losers on the large property occupied by a seniors' complex at the corner of Turquoise and La Jolla Blvd. shown below.

The present owners could take advantage of Sanders' proposed bonus and apply for a concession from the Prop D 30-foot height limit. Believe it or not this property is not in the Coastal Zone so there is no question of Coastal Commission protection, not that it would make any difference.

Look at this Coastal Zone Map. Note that the yellow area, the area covered by Prop D but not under the jurisdiction of the Local Coastal Plan, extends to La Jolla Blvd, along the north side of Turquoise and east along the south side of Van Nuys Street.

So l
et's look at what could be built on that site under current zoning law.

It is zoned
RM-3-7, which permits a maximum density of 1 dwelling unit for each 1,000 square feet of lot area. The site is 16.39 acres. One acre is 43,560 square feet therefore 43,560 ÷ 1,000 = 43.56. Under current zoning law the owner could put 43 residential units per acre on the site but is prevented from doing so by the Prop D 30-foot height limit. The 30-foot height limit effectively restricts sites to approximately 30 units per acre.

But if the owner agrees to include 4.5 moderately affordable units per acre (for people earning less than $73,200 per annum) he will get a 20% density bonus. 43.56 x 1.2 = 52.272. This means the owner could now build 52 units per acre i.e. 22 units more than before being relieved of the 30-foot height limit. That is a 73% increase in density therefore a corresponding 73% increase in site value! That would represent tens of millions of "bonus" dollars on this site alone.

The truth is that Sanders' proposed density bonus represents billions of dollars in increased property values right across the city. "Bonus zoning" is the wave of the future.

Relieved of any height limitation the owner could now build one tall 52 unit tower per acre. There are 16.39 acres on the site. That would be good for at least 16 towers of 52 units each for a total of 832 units on that site. Tall towers would be the sensible way to go as the taller one goes the more valuable the view units. And what a spectacular ocean view they would have! It would also leave lots of open space to enhance the value.

Why, even Ivanka Trump might be interested in such a deal, especially if she could get hotel/condo units up there. Unlike Manchester at Navy Broadway or Woodfin Suites at Harbor Island, she would not need to deal with the Coastal Commission to build hotel/condos. We know she is interested in San Diego from an article written in the U-T on March 4, 2007. But it doesn't take an Ivanka Trump to see the potential value of the Turquoise/La Jolla Blvd site - courtesy of Sanders' proposed density bonus ordinance.

The spectacular market price of those spectacular view units would dwarf the "loss" of having to sell off 4 or 5 units at the back of each tower building, near the underground garage entrance, beside the garbage dumpsters and next to the noisy elevator room. At least 10% of such a complex's units would be undesirable anyway.

Well-connected speculators, masquerading under the usual Delaware LLCs., may have already secured options to purchase such sites from unsuspecting owners.

If speculator/developers are the obvious winners, who are the losers? The senior citizens who would be displaced. And the general public who are seeing a growing number of barriers between them and their ocean. This is a very serious issue.

Another "Friday Surprise" from Aguirre's office. 03/24/07

                                                         by Pat Flannery                                        top^

At the February 27, 2007 City Council meeting, Jim Waring described Aguirre's Density Bonus Option 2 as the "Friday Surprise". DSD had not expected Aguirre to become personally involved and introduce his Alternative Density Bonus Ordinance, dubbed
Option 2. It caught Waring and DSD by surprise.

Well surprise, surprise, late last evening Aguirre reintroduced his
Option 2 into Tuesday's Docket. It had been missing from the version (of the Docket) posted on the City Clerk's web site up until at least 4:00 P.M. when I last checked. Then it suddenly appeared on the City Clerk's web site some time between 4:00 P.M. and 8:25 P.M. when I was notified by one of his staff that it was now up there. Strange goings-on.

I also noticed that the Docket Item now contained the following note: "
It is anticipated that this item will not be heard today" [meaning Tuesday].

I checked to see if
Option 2 was the new "clean" version described in the Statement of Overriding Considerations (SOC). According to that SOC Aguirre's revised Option 2 contains only the bare necessities to comply with State law. That is what so upset DSD and prompted them to write their SOC condemning it. It is important to read the SOC.

But Aguirre has still not published the revised version of his
Option 2, the one the DSD so vehemently attacked in its SOC. Obviously there had been some heavy "negotiations" going on behind the scenes. DSD wants that 5% bonus increased to 20% real bad.

I checked all the Exhibits on page 38 of Tuesday's Docket. It is not there. What is there is the old version of
Option 2, that still contains (page 14 of 19) a 20% density bonus for moderate income housing, same as DSD's Option 1.

Yet on page 3 of its SOC, DSD attacks Aguirre for "the elimination of the City's on-site 20% bonus incentive for moderate income ownership units". Where is that version of Aguirre's Option 2? It obviously exists, otherwise DSD would not be attacking it in an official document, the SOC. Therefore it should be posted on the City Clerk's web site with everything else relating to this Item. It is the solution to the 30-foot height limit.

Aguirre was apparently "talked out of" putting it forward - the latest Friday Surprise. Now DSD wants to continue the Item on Tuesday, so they can all get together behind closed doors and "fix" it. So much for open government. We are going backward, not forward. The people's Prop D 30-foot height limit is now just another chip to be bargained away.

The simple truth is: density bonus is not the way to fix affordable housing.

If the City adopts the State-mandated 5% density bonus there will be no developer requests for 30-foot height limit busting concessions. The City will have to find other ways of meeting its affordable housing obligations. Just adopt the State law.

The latest on the City's Density Bonus shenanigans. 03/23/07


                                                       by Pat Flannery                                        top^

Here is a quick summary on the state of play on the density bonus issue. It is now docketed as Item 333 on Tuesday's calendar.

"ITEM-333: (Continued from the meeting of January 30, 2007, Item 331, at the request of Councilmember Frye, for further review, and continued from the meeting of February 27, 2007, Item 335, at the request of Councilmember Frye (and public), for further review.)"

The important thing to remember here is that this is a public hearing and "further review" means further PUBLIC review, not behind the scenes horse trading.

The action before the City Council on Tuesday is:

"Matter of approving, conditionally approving, modifying or denying an ordinance that would amend the Land Development Code regulations ..... related to Affordable Housing Density Bonus."

At this regularly scheduled and properly noticed PUBLIC hearing, the City Council and only the City Council, "can approve, conditionally approve, modify or deny" this Ordinance. They and they alone can do that. And only after hearing PUBLIC testimony.

At the February 27th meeting, when this Item was continued, the following was the staff recommendation:

"STAFF’S RECOMMENDATION: Adopt the resolution in Subitem A and introduce the ordinance in either Option 1 or Option 2 in Subitem B.

Subitem-A: (R-2007-698)
Adoption of a Resolution certifying that Supplement to the Environmental Impact Report No. 96-0333, on file in the Office of the City Clerk, has been completed in compliance with the California Environmental Quality Act of 1970.

Subitem-B: (O-2007-40 Cor. Copy. 1)
Introduction of an Ordinance of the Council of the City of San Diego amending Chapter 14, Article 3, Division 7, Sections 143.0710, 143.0715, 143.0720, 143.0725, 143.0730, 143.0740, and 143.0750, and deleting Section 143.0760; by amending Chapter 12, Article 6, Division 7, Section 126.0708, and amending Chapter 14, Article 1, Division 3, by amending Section 141.0310(b), all relating to the Affordable Housing Density Bonus Regulations

On Tuesday March 27's calendar, Option 2 has disappeared! The following is NOW the staff recommendation:

"STAFF’S RECOMMENDATION: Adopt the resolution in Subitem A and introduce the ordinance in Subitem B.

No mention of Aguirre's "clean" alternative Option 2! Even though it was CONTINUED alongside Option 1, which is the Ordinance going forward on Tuesday. Can they do that?

Further, at Tuesday's Council meeting the City Council will be asked to adopt the following Statement of Overriding Considerations (SOC):

"That pursuant to California Code of Regulations Section 15093, the City Council adopts the Statement of Overriding Considerations, a copy of which is on file in the Office of the City Clerk and incorporated herein by reference, with respect to the project."

That SOC was not part of the February 27 Council package that was continued.

What this new document says is that Aguirre's Option 2, does not provide developers with a 20% density bonus for "moderate" income housing, up from the State mandated 5% by a factor of four, therefore it is "unfeasable". Obviously Mike caved in to the developers and allowed his "clean" Option 2 to be withdrawn. Too bad.

Giving the developers 20% bonus as opposed to 5% as mandated by the State, is what this is all about. The developers will accept nothing less.

So what to do. Well, democracy and the law is still on our side. Here is what the staff are pointing out to the City Council for Tuesday:

: There are two alternative actions for consideration. First, the Council may adopt the state mandated density bonus regulations and deny or modify the City-initiated density bonus incentives and still be in compliance with state mandates. Second, the Council may deny and/or modify the state mandated provisions of the regulations. However, this action would cause the regulations to be out of compliance with state law."

Now that Aguirre has withdrawn his "clean" Option 2, the public can demand at the public hearing on Tuesday, that the City Council, as City staff have told them they can, "adopt the state mandated density bonus regulations and deny or modify the City-initiated density bonus incentives and still be in compliance with state mandates".

Therefore, we actually don't need Aguirre's "clean" alternative Option 2. The City Council can adopt the State mandated 5% bonus and deny the City-initiated 20% bonus. It would have been better if Mike Aguirre had been the savior of the coastal 30-foot height limit, but perhaps he had other priorities. His Option 2 actually accomplished it.

Adopting the State mandated 5% bonus and denying the City-initiated 20% bonus surely would be the wise course for Kevin Faulconer on Tuesday. He does not want to be tarred with the 20% bonus brush in his coastal District 2, thus busting the Prop D 30-foot height limit. That would be political suicide. How could he explain to his coastal constituents that he voted for a 20% density bonus when he had the opportunity to merely conform to State law at 5%? They would tar and feather him if he does.

The other coastal Councilmember, Scott Peters, is too deeply in bed with the developers to turn back now and unlike Faulconer is not running for reelection.

Remember, developers get the 20% bonus BEFORE they ever even ask for a height concession! The amount of the density bonus has nothing to do with the 30-foot limit.

In the above SOC the City is saying that a 5% bonus is "unfeasable" - then lets give it to them. That will save the 30-foot height limit in the Coastal Zone. A developer can only ask for a height concession in order to reach his/her density bonus entitlement. If a 5% bonus does not entice them into the affordable housing business, then they cannot ask for a concession from the 30-foot height limit. It's that simple.

Of course that is why the developers want the 20% bonus so badly.

And that is why the City (apparently now including Aguirre ) wants to give it them. The City wants to give them 20% and then blame the Coastal Commission and the State Density Bonus Law for busting the 30-foot height limit. I doubt they will get away with it. The people are on to them now. Let's see what happens on Tuesday.


We are in the midst of a deadly attack on our democracy. 03/22/07

                                                         by Pat Flannery                                        top^

A few years ago I stayed up late and watched C-Span while the Medicare Prescription Drug Bill was being voted upon in the U.S. House of Representatives. Everybody knew the Bill was welfare for the giant drug Industry.

The Bill was defeated by 15 votes. I was delighted. I decided to stay awake and wait for the sound to come back on C-Span when the Speaker of the House of Representatives would make the declaration that it had failed to pass and by such a large margin.

The statutory 15 minutes passed. That time limit is designed to prevent exactly what happened that night. The Speaker is required by law to declare the result within 15 minutes of the final tally. I watched in horror throughout the night as the voting numbers on the screen started to slowly reverse themselves. I knew what was happening but I could hardly believe my eyes. The law meant nothing to these people.

Shortly before dawn, San Diego time, there was finally a small but sufficient majority on the "Yea" side. The C-Span sound suddenly came on. The triumphant (Republican) Speaker, pounded his gavel and loudly pronounced that the Medicare Prescription Drug Bill had passed the House.

Chills went up and down my spine. I felt I was back in the Germany of the 1930s. What went on that night in Washington DC we will never know. What arm-twisting, even physical threats, changed those 15 votes will forever remain a secret. I stared at the C-Span screen as the sun came up and I worried what would become of America.

Now it is happening in San Diego. I have just been told that the Mayor wants to again postpone (continue) the Density Bonus Ordinance on Tuesday. Rather than see it go down to defeat the above kind of arm-twisting will now take place behind the scenes, right here in San Diego. The Mayor will not bring his Density Bonus Ordinance before the City Council until the necessary votes have been "secured", by threat or by bribe. The San Diego developers are as determined as the Drug lobby was in Washington.

Have we lost our democracy? Only if we do nothing. There is a solution:

We can insist that the City Council pass the City Attorney's "clean" Density Bonus Ordinance on Tuesday March 27, 2007. This "clean" Ordinance does NOT include the developer pork the Mayor wants, nor does it require an EIR. It merely implements State law. That is why Sanders wants it postponed, while he "works over" the City Councilors who are opposing it. And he will do it. We know he is capable of it.

As citizens we must insist that a "clean" Ordinance, that does NOT include the Mayor's enhancements, one already drafted by the City Attorney and dubbed "Option 2" or the "Alternative Ordinance", be put before the City Council on Tuesday. The State version only calls for a 5% density bonus, Sanders wants 20% - for people earning $72,300!

If we allow the Mayor to "continue" his Item yet again, as he is also doing with the Budget Amendment legislation, we will be surrendering our democracy to the same evil forces that, in the dead of night, changed 15 "Nay" votes to 15 "Yea" votes in DC. If we stay silent we are truly in danger of sliding down the slippery slope to dictatorship.

The Charter Review Committee. 03/22/07

                                                         by Pat Flannery                                        top^

Alan Bersin

  San Diego Regional Airport Authority board Chairman; former Schwarzenegger's Education Secretary; former San Diego Unified School Board Superintendent.
Susan Channick   Professor at California Western School of Law.
Barbara Cleves-Anderson   Community leader; chair of the Friends of Lake Murray.
John Davies,   Chair; attorney with Allen Matkins Leck Gamble Mallory & Natsis LLP; former president of CCDC; former chair of the city planning association; currently Judicial Appointments Advisor to Governor Schwarzenegger (his wife, Patricia Davies had donated $16,150 to Schwarzenegger's election campaign).
John Gordon   Principal, Pacific Management Consulting Group (a close friend and advisor of Donna Frye).
Donna Jones

  Lobbyist; land use attorney with Sheppard, Mullin, Richter & Hampton LLP; specializes in defeating CEQA appeals on developers' projects; she is currently working to develop Rancho Guejito; chair of the Infrastructure Committee of the Chamber of Commerce; vice chair of the Downtown San Diego Partnership.
Adrian Kwiatkowski

  Lobbyist with the Monger Company; member Downtown San Diego Partnership; former point man on Malin Burnham's strong mayor initiative (of the $524,000 raised to get Prop F approved Malin Burnham and his wife Roberta, gave $84,000, Padres owner John Moores and his wife Rebecca gave $49,500 each and Cox Communications contributed nearly $50,000).
Mike McDade   Lobbyist; land use attorney with Wertz McDade Wallace Moot & Brower; former Port Commissioner.
James Milliken   Vice Chair; Retired Judge.
Vince Mudd   President and CEO of San Diego Office Interiors; chair Finance Committee San Diego Regional Chamber of Commerce.
Mark Nelson   Lobbyist; Director of National Government Affairs for Sempra Energy.
Duane Roth   CEO of UCSD's Connect; former chair of the Lincoln Club.
Marc Sorensen   Senior Engineer and Program Manager for Space and Naval Warfare Systems Center’s.
Glenn Sparrow   San Diego State University Professor at the School of Public Administration and Urban Studies.
Lei-Chala Wilson   Attorney at the San Diego County’s Public Defender’s Office; past president of the Earl B. Gilliam Bar Association (EBGBA), an affiliate of the California Association of Black Lawyers.

The City is now trying to shift the blame to the Coastal Commission. 03/21/07

                                                         by Pat Flannery                                        top^

Is there no end to the lies this City is willing to tell in order to sneak its developer-serving Density Bonus Ordinance by its citizens? Here is part of the staff report, just released, supporting the Ordinance going before the City Council on March 27:

"The proposed amendments to the Land Development Code would apply to the Coastal Zone, therefore the City Council’s decision requires amending the City’s Local Coastal Program. As a result, the final decision on the amendments to the Land Development Code and associated Local Coastal Program amendments will be with the California Coastal Commission."

They are abandoning their earlier lie that local law trumps State law. But they are now telling a new lie: "the City Council’s decision requires amending the City’s Local Coastal Program". It does not! This latest lie directly contradicts State law:

"65915 (g) (5) The granting of a density bonus shall not be interpreted, in and of itself, to require a general plan amendment, local coastal plan amendment, zoning change, or other discretionary approval."

They are obviously trying to shift the blame to the Coastal Commission. Nice try. The people will see through that.

Anyway, the focus should be on the fact that the City wants to give a 20% density bonus to developers when the State only mandates 5%. They can't blame that on the Coastal Commission. Sneaking a 20% density bonus by the people is what this is all about.

At least they have now conceded that they have no control over our 30-foot height limit once a Density Bonus Ordinance is adopted. It does not matter whether it is the State Density Bonus Law or the State Coastal Commission that is responsible for busting our 30-foot height limit, at least we can control by how much - we can keep it at 5% until we can get Lori Saldana to fix this flawed law at State level.

The developers would not be fighting so hard for a 20% bonus (plus concessions) if they did not intend to take full advantage of it, especially along the coast. That one key concession, height, would be a bonanza for the developers. Once they get that, the sky's the limit, literally. But I guess it's OK now that we can blame the Coastal Commission instead of the City Council. Do Faulconer and Peters expect their coastal constituents to believe that? The people will roast them alive when those tall buildings start going up along the coast. Blaming the Coastal Commission will not save them.

As for Waring, he told the City Council on February 27th that not a single developer has contacted him regarding the Density Bonus Ordinance. Yeah, right Jim. We believe you.


"Form-Based Codes" are fundamentally dictatorial. 03/21/07

                                                         by Pat Flannery                                        top^

Well the turkeys will have a pleasant Christmas this year and Bird Rock will not look like a
19th century English coal-mining town after all. The good citizens of Bird Rock came out in large numbers last night and voted down Peters' sneak Form-Based Codes attack.

Peters' hired guns, Stepner and Blackson, got an earful from the local property owners in the packed Bird Rock Elementary School Auditorium. Peters left early. Wise man.

This is a major defeat for the super-aggressive, developer-financed Form-Based Codes snake oil salesmen. The property owners of Bird Rock don't even want to allow 3 stories let alone the increased density that would be imposed by the Form-Based Codes gang.

And "impose" is the right word.
Stepner and Blackson are planning for properties they do not own! What about individual property owner's rights? Look at their overall plan below. They are treating all of Bird Rock like a condominium complex. They have colored in each individual lot and would tell each property owner what he/she can do with their property! Down to the size of the windows and the color of their front door.

After the meeting Stepner asked me  what I meant by my reference to
a 19th century English coal-mining town in my blog yesterday. I told him that he was behaving like a 19th century mill-owner but that the mill-owners at least owned the land upon which they built dreary row-houses for their workers. I told him this is America, that unlike the 19th century English coal-towns, Americans own their individual lots.

I asked him what business he or anybody else had designing a whole swathe of San Diego that did not belong to them. He gave me a glib answer: "it's planning".

The day that Americans have to kowtow to "planners" like
Stepner and Blackson is the day we may as well have lost the Cold War. Individual ownership is America.

The whole concept of Form-Based Codes is fundamentally dictatorial. Land-Use zoning is bad enough in that a local government can restrict the use of a property to residential, commercial, industrial or agricultural. That restriction has been upheld by the United States Supreme Court for health and safety reasons - City of Euclid vs. the U.S.

There are still very strong arguments for the separation of uses. Would you want to live above a restaurant for example? Is there not an increased danger of fire from the kitchen? What about the smells? What about the noise from its fans and its vents that must run up through your living area? Or would you prefer to live above a dry cleaners?

In addition to a huge invasion of property rights, "Form-Based" means "mixed-use". It could mean living above a light industrial work shop. The idea came out of the minds of the developers and their slick salesmen. The good people of Bird Rock were not buying last night. I hope property owners all across San Diego tell
Stepner and Blackson to go peddle their soviet-style planning somewhere else.

Bird Rock will look like a 19th century English coal-mining town. 03/20/07

                                                         by Pat Flannery                                        top^

Form-Based Codes is about to make an apocalyptic appearance tonight at
"a Special Community Meeting for Bird Rock residents, merchants and property owners seeking support of the FBC as revised through this extended public process, 6pm, Bird Rock Elementary School Auditorium."

Scott Peters' City Council District Budget is paying for (I didn't know Councilmembers had such fat budgets) this expensive looking "Project Report" by the Stepner Design Group. Michael Stepner and Howard Blackson, who are national apostles for the Form-Based "cure" for the "cancer" (their words) of Use-Based planning, will be in attendance tonight to introduce the new "god of form" and preach the new gospel.

They will loudly condemn the old restrictive "Euclidian" concept of separating land uses and banish such thinking to the lower reaches of planning hell. They will crown their god, "Form" the Adonis of planning. They will proclaim a new age right here in beautiful downtown Bird Rock a.k.a. Baja La Jolla.

Their presentation to the people of Bird Rock will not only be like inviting turkeys to vote for Christmas but asking them to set the table and choose the flower arrangements. The people of Bird Rock will be asked to admire the beauty of the dinner table upon which their former use-based zoning is the main course.

They are being asked to approve ugly multi-use buildings and destroy the traditional land use zoning that has served them and America so well. Stepner and Blackson think it's all in the presentation: that if they do it right, even turkeys will vote for Christmas.

Here are a few extracts from the proposed Form-Based Code for Bird Rock:

"1.2.2 That infill developments with a mix of uses and of a smaller scale should be the preferred pattern of development and to discourage projects specializing in single uses or repetitive architecture on several parcels.

1.3.2 The provisions of this Code, when in conflict, shall take precedence over those of other codes, ordinances, regulations and standards except those that are collectively referred to as the “Local Health and Safety Sections.”  

1.3.3 In the event of conflicts between these definitions and those of any other laws or ordinances of San Diego, those Codes shall take precedent related to the use and application of this Code.  

3.1.1 Once designated as a Form-Based Code District, this Code shall be the exclusive and mandatory zoning regulation within the District."

Peters and his team of hired guns hope to transform the Bird Rock Planned District into the Bird Rock Form-Based District. After Bird Rock the deluge.

All San Diego's PDO's would quickly morph into Form-Based Districts. PDOs in turn would become the "model" for the rest of the city. When the whole city is zoned multi-use the developers will have achieved developer heaven.

San Diego would be indistinguishable from Barcelona or Naples. At least in Europe they have real neighborhoods - people know one another because they have lived and worked close to each other for generations. But such close living and working in San Diego? People rotate in and out of here by the week!

Here are two extracts from the Bird Rock's proposed multi-use beauties:

Everything will be 3 story, until they start to use the density bonus ordinance to bust the 30-foot height limit. That is next. Their nicer apartment buildings will have dormer-style windows on the third floor. The rest will have flat roofs. Can you imagine what a row of flat-roofed, multi-use buildings will look like? It will be like a 19th century English coal-mining town, row after row of the same. The above proposed buildings are straight from the high priced Project Report Scott Peters has somehow found the money for. We will find out tonight if the people of Bird Rock think he has spent their money wisely.


Proof positive that "density bonus" is an attack on our neighborhoods. 03/20/07

                                                         by Pat Flannery                                        top^

Here is the latest PR blast from DSD to justify its 20% density bonus to builders of condos for individuals earning up to $72,300 i.e. people of "moderate income". It may be "moderate" by DSD pay standards but it is more than most working people earn.

We are being told in this CEQA document that if the City Council does not adopt DSD's 20% density bonus proposal there will be dire environmental consequences. What a perversion of the CEQA process. The State mandate is only 5% density bonus for "moderate" income. DSD wants 20%. This will leave very low and low income out of the program - a complete perversion of the density bonus concept.

The proposed Statement of Overriding Considerations (SOC) calls for "aggressively encouraging use of the Density Bonus program". It wants to "maximize residential development opportunities in already developed portions of the city".

It further says that DSD's proposal is to build affordable housing "on-site" while the "alternative" proposal, presumably Aguirre's Option 2, is to pay an "in-lieu" inclusionary fees. This could have been written by Goebbels himself. It is utter spin, designed to get Option 1 adopted as originally written. State law requires "on-site". Period.

The fact that the City Attorney's people have got together with the Mayor's people to concoct this so-called CEQA SOC document means that Aguirre is working with the Mayor and DSD to give the developers the Density Bonus Ordinance that they want. He has abandoned his "clean" Option 2. Maybe it was fake from the start.

Aguirre's Option 2 Ordinance did not even need an SOC, because it did not need an EIR in the first place! That was the whole idea of a "clean" Ordinance. Now Aguirre's Ordinance doesn't look quite so clean any more. He is willing to combine his Option 2 with DSD's Option 1 in order to make it all acceptable to the developers.

The future of our neighborhoods is being horse traded behind closed doors.

San Diego is governed by and on behalf of developer contributions. Everything has its price - even the law.

Donna Frye is like a beacon of light in a city of darkness. 03/19/07

                                                         by Pat Flannery                                        top^

She doesn't know it yet but Donna Frye launched her 2008 Mayoral campaign today. I hope she won't be too mad at me tomorrow for being so presumptuous as to say such a thing without her permission. But I knew if I asked her she would say "no", but she may not be able to say "no" to 1.3 million San Diegans. This City desperately needs a moral compass and she is it. She stands out like a beacon of light in a city of darkness.

I sat for nearly two hours at City Hall today and listened as irate citizen after irate citizen went to the podium to speak passionately against giving Mayor Sanders the budgetary power he seeks. The people simply will not stand for it. This time Sanders has gone too far. The people will not have their power given away to a dictator.

From all across the city Donna got them out in droves to oppose the Peters/Young budget "compromise". Peters and Young were told in no uncertain terms that they cannot "compromise" the people's power. Peters was cocky and unrepentant while Young looked like he sensed that he has picked the wrong side - again.

The City Chamber is the People's House and they took it back today. It was a sight to see. On Saturday I quoted an Irish labor leader who said "beware the risen people". I never dreamed it would come so quickly. The people sure looked "risen" today.

The legislative day started with Aguirre suddenly "discovering" that there might be some legal problem with the City Council delegating its budgetary powers to the Executive Branch. No kidding. Councilmember Frye wondered why it took him so long to discover this little problem. So he did what he does when he wants to play for time to fix it behind the scenes - he called for a continuance. It will now be heard on April 10th.

But an interesting thing happened on the way to the continuance. Peters announced  that the City Council cannot vote on any Ordinance for which it has not received clear legal clearance from the City Attorney.

That means that Aguirre must "fix" Option 1 and Option 2 in the Density Bonus fiasco. He will eventually have to stand up and be counted. He will eventually have to decide whether he is on the side of Sanders or Donna Frye. He will have to decide whose  coattails will be the longest. He would underestimate Ms. Frye at his peril. The people trust her.

No doubt Aguirre will also recommend (another) continuance of the Density Bonus Ordinance until he can "fix" it behind the scenes. So much for the California Brown Act.

But hurry up Mike, the train is leaving. The people supported Donna Frye before they knew what a dictator Sanders would turn out to be. How much more will they support her now that they see his dictatorial tentacles spreading everywhere.

Political payoffs from Sanders' big developers only go so far. Money will count for nothing before "the risen people". San Diegans believe in democracy. They made that perfectly clear today and will do so more and more until November 2008. They want their neighborhoods protected from the Mayor's insatiable developers.

Sanders imposed the highest water and sewer rates in the country to pay for infrastructure developers pay for elsewhere. The developers hand-picked man, Jim Waring, decides every land use issue on behalf of Sanders' backers.

Few American cities have ever experienced such a developer onslaught. If Sanders is allowed a free ride into a second term, San Diego may never recover. Councilmember Frye may have no choice. It seems to be her fate. Sorry Donna.

My Powerpoint Presentation and Density Bonus definitions. 03/18/07

                                                         by Pat Flannery                                        top^

I recently gave a Powerpoint Presentation to a group of fellow real estate professionals who needed to get their heads around this density bonus thing. I am putting it online here as it includes some definitions that some of you may find useful.

There is great confusion on this issue because the local papers will print nothing that is not prior-approved by the Mayor's office. Nor will City Council staff comment. They refer everything to DSD. Councilmembers' staff will not even speak at planning group meetings on density bonus. This means that the Mayor controls every piece of information regarding this issue. Very dangerous, particularly when the City is lying about it.

The density bonus Ordinance will impact the lives of every individual in this city. Yet the City is playing it down. This developer-friendly City is using every tool possible to push "density" and "fill-in". Affordable housing density is just one of those tools.

Read the essential facts of this issue, particularly the definitions, in my Powerpoint Presentation. It seems to me that members of every local planning group should educate themselves on this issue before allowing it to go before the City Council again. But to do so they must first remove the Mayor's stranglehold on good information on this and other issues. I hope my "bullet" presentation helps.

When your City lies to you it is a bit like your priest lying to you. You tend to believe them. Which makes the betrayal that much greater.

The Big Lie. 03/17/07

                                                         by Pat Flannery                                        top^

There is something profoundly disturbing about a city lying to its citizens on an important issue. The Mayor and the City Attorney are telling San Diegans that the coastal zone's 30-foot height limit is safe from the State Density Bonus Law. They know the opposite to be true, but they tell the Big Lie anyway.

The Mayor's staff, particularly Jim Waring, are telling everybody that city law trumps State law, a breathtaking lie. They quote Aguirre as their legal authority. Aguirre remains silent. Waring would not be saying it if he did not know for certain that Aguirre would back him. Waring's boss, the Mayor, obviously got such an assurance from Aguirre. Aguirre fixed parts of the Mayor's proposal by offering an "Option 2" Ordinance, but he is allowing the City's "Option 1" lie that the 30-foot height limit is safe, to go forward.

Why? The answer is simple: the Mayor is a captive of the developers and Aguirre is a captive of the Mayor. Both men want to get reelected in 2008 so they have made a political pact with the developers. The developers want that density bonus (they championed it at state level) and truth must take second place to political expediency.

Sanders and Aguirre are not only implementing the State density bonus law as written, they are increasing the bonus by a factor of 4 for San Diego! No wonder Sanders and Aguirre are trying to sneak it past the City Council. They are postponing it multiple times until everybody is too tired to notice. It seems they will continue it again on March 27th.

But will it work? Will they get away with it? Harold Macmillan, a British Prime Minister once said: "facts are stubborn things". Indeed they are. And here are the facts:

State law trumps local law, in all cases, no exceptions, ever. The State Density Bonus Law is obviously a State law; the 30-foot height limit is obviously a local law. But what about the Coastal Zone? Is the coast not protected by the State Coastal Commission?

No. It makes no difference. In fact the Coastal Act specifically says:

"30512.2 (b) The commission shall require conformance with the policies and requirements of Chapter 3 (commencing with Section 30200) only to the extent necessary to achieve the basic state goals specified in Section 30001.5."

A 30-foot height limit is not a "basic state goal". It is merely a local provision.

Additionally, the State Density Bonus Law states:

"65915 (g) (5) The granting of a density bonus shall not be interpreted, in and of itself, to require a general plan amendment, local coastal plan amendment, zoning change, or other discretionary approval."

In other words, even though a local coastal plan may have some additional local provisions, e.g. a 30-foot height limit, there would be no point in amending that local coastal plan, it is simply overridden by State law. That's plain enough.

All this is perfectly well known to both Jim Waring and Mike Aguirre, both attorneys. But they each have a stake in the Mayor's reelection, they each want to keep their jobs.

The facts will come out. The people will eventually read the law for themselves. When that happens: I will quote an Irish labor leader c 1910: "beware the risen people".

Both the Mayor and the City Attorney risk a serious backlash when the people, particularly coastal people, realize they have been lied to. And they have been lied to.

Facts are stubborn things.

It's called democracy Jerry. 03/15/07

                                                         by Pat Flannery                                        top^

What part of the following City Charter Section do Scott Peters and Tony Young not understand?

"Charter Section 11.1: Legislative Power — Nondelegable
The same prohibition against delegation of the legislative power which is imposed on the State Legislature by Article XI, Section 11a of the Constitution of the State of California shall apply to the City Council of The City of San Diego, so that its members shall not delegate legislative power or responsibility which they were elected to exercise in the adoption of any ordinance or resolution which raises or spends public monies, including but not limited to the City’s annual budget ordinance or any part thereof, and the annual ordinance setting compensation for City employees, or any ordinance or resolution setting public policy."

Does that Section not make it perfectly clear that the elected City Council has sole and absolute power over the spending of public monies? Councilmembers Peters and Young have no authority to "compromise" the City Charter. And Peters is an attorney!

Thank goodness for Donna Frye. She wrote this Memorandum to the City Attorney on March 8th asking whether the executive branch, i.e. the Mayor, has the legal authority to "unilaterally shut down the internal audit function of our City". That's a bit like asking "when did you stop beating your wife?". It will be interesting to hear the City Attorney's response, especially the part about notifying the City's bond disclosure counsel.

She then wrote this Memorandum to the City Attorney on March 9th. It too is a "beating your wife" kind of question. Of course the Mayor does not have the authority to deviate from the Budget the City Council debated and approved. It's called democracy Jerry.

This is one time when the City Attorney has to lay down the law - even if his friend Jerry Sanders does not like it. It is a crucial moment in the City's history: are we a government of laws or a government of men? I think Mike Aguirre's idol, Bobby Kennedy would have no trouble answering Councilmember Frye's questions.

As for Peters and Young ......


The public want to be heard. 03/11/07

                                                         by Pat Flannery                                        top^

Five very powerful community organizations are sponsoring a public meeting this
Thursday, March 15, 2007, 6:00 P.M. at Christ Lutheran Church, 4761 Cass St., Pacific Beach. They are "Friends of San Diego", "The San Diego Coastal Alliance", the "San Diego Sierra Club Chapter", the "Center for Policy Initiatives" and "VOTE".

They say in their flyer advertising the event: "On March 27, Council will vote whether to implement the new "State Density Bonus Law" that would allow developers to build as high as they want". The public obviously does not believe the assurances emanating from the Mayor's office and from the two coastal City Councilors, Kevin Faulconer and Scott Peters, that the local Prop D 30-foot height limit is safe from this new law. They wonder why the Mayor and his staff are hell-bent on ramming it through City Council on the 27th.

As the City's legal counsel and to save the City from lawsuits, Mike Aguirre has personally intervened in this important matter. He has stripped the Mayor's proposed Ordinance down to its bare essentials. In other words Aguirre wants to implement State law and no more. He does not want the adoption of a local density bonus Ordinance to be the occasion for creating far-reaching "concessions" to developers over and above those mandated by the State. Nor does he want the City to enact legislation with indeterminate environmental impacts. There are many unanswered environmental questions hanging over the Mayor's proposal that could spawn dozens of law suits.

Many community leaders are alarmed at the Mayor's direction on this. They are also alarmed that Faulconer and Peters, of all people, are supporting this flawed Ordinance.

Aguirre's version of this State mandated Density Bonus Ordinance includes some explanatory language as to how San Diego's existing Municipal Code will work perfectly satisfactorily in implementing the state density bonus mandates, provided it is kept to just that. Unlike the Mayor's version, it does not change the existing Municipal Code in any way. Some are already calling it the "clean" version.

There is no doubt that the Mayor's Ordinance, amazingly supported by the two coastal Councilmembers, would do an "end run" on the 30-foot height limit. State law preempts local law, even Prop D, yet they are telling their constituents the exact opposite.

So what is this public meeting all about? Hopefully it will bring some clarity and eliminate the stealth clauses in the Mayor's Ordinance that would make it easier for developers to bust the 30-foot height limit e.g. making all concessions "ministerial". It is significant that State Assemblywoman Lori Saldana will be there. She believes that the basic problem lies with the State Density Bonus law itself and that it needs to be fixed at State level. Hopefully she will explain her plan at the meeting.

Donna Frye's focus is on the environmental impacts of any density bonus Ordinance. She is calling for a cooling-off period and extensive public review of the whole matter of affordable housing density bonuses for developers. In her usual style she has raised
20 searching questions with regard to the Mayor's Ordinance.

The City Attorney, to whom the letter is addressed, is still struggling to answer them. It may be that Ms. Frye's questions cannot be answered by Mr. Aguirre or anybody else with regard to the Mayor's Ordinance. It may be that the Mayor's proposal and the Supplement to its supporting EIR, are so fatally flawed as to be beyond interpretation. Sanders tried to load it up with so much pork for his developers that it drowned in its own chicanery. Aguirre's Ordinance on the other hand does not need an EIR because it makes no changes to the current Municipal Code, it simply implements State law.

The public meeting on Thursday will be important and revealing. The density bonus issue will get a full airing. Jim Waring's cocky assertions before the City Council on February 27th, that density bonus is a non-issue, may not hold up. It clearly is a hot issue for many people. They believe that the Mayor's staff, particularly Jim Waring, has become advocates for developer interests, not guardians of the public good.

We preserved our historic gaslamp area for this? 03/09/07

                                                         by Pat Flannery                                        top^

This is the ugly face of "multi-use" and "form-based" - the buzz words of the new planning glitterati. This kind of "planning" reminds me of Soviet housing - utility without soul. The Germans hurriedly rebuilt their bombed-out cities like this after WWII. They are now pulling them down and recapturing the old Germany - the Germany with a soul.

San Diego is doing the exact opposite. It is building soulless "project housing" in the heart of downtown. This particular aberration is at Fifth & Island in the Gaslamp. We spent tens of millions of tax-increment redevelopment dollars preserving our historic Gaslamp and we got this sick joke. How dare they put gaslamps in front of this - "thing".


The Historic Resources Board is next for Sanders' chopping block. 03/07/07

                                                         by Pat Flannery                                        top^

Ever heard of the Mills Act? Probably not. Only people who have a keen interested in preserving historic buildings would be familiar with it. Unfortunately in San Diego that is a relatively small number of dedicated people.

The San Diego Historic Resources Board is part of the Planning Department: "T
he City has been awarded the status of a "Certified Local Government" by the State of California, enabling the City's staff and Historical Resources Board to evaluate the historical value of resources and the potential impact of development on those resources, including proposals affecting National Register designated sites."

Mayor Sanders can end the San Diego Historic Resources Board at the stroke of a pen by simply "reassigning" the one Senior Planner currently assigned to the Historic Resource Board. The Board would be history, pardon the pun. The City must assign at least one senior planner to assist the Board in order to maintain its status as a Certified Local Government recognized by the State of California and by the Federal Government.

So far Sanders has "reassigned" the entire Internal A
udit staff without any legal authority whatsoever and without telling anybody. What will he do if Scott Peters and Tony "rent-a-vote" Young succeed in giving him the power to cut anything he chooses, up to a maximum of $4 million, from the the City Budget? That's their so-called "compromise".

If the IBA's Budget Protection Ordinance is amended as proposed by Peters and Young and adopted on March 19th, the Historic Resources Board will be just the beginning. He will strangle to death any section of the City Administration that stands in the way of "progress" - i.e. his developers plans for the city.

Any civic-minded organization, such as a local planning group, will be vulnerable to Sanders line-item pen. The Planning Groups are powerless without a Community Plan. They need Sanders to finance them. He will finance the Community Plans he likes and "reassign" finance away from those he does not like. He is doing it already.

It is time the public took a long and serious look at the battle between Donna Frye and Sanders over his budget power grab. Ms. Frye got to know him better than most on the mayoral campaign trail. She had an opportunity to read his body language and divine his true intent night after grinding night as they both struggled to win the hearts and minds of the public in 2005. Sanders' unlimited financial resources gave him the edge

The Independent Budget Analyist, Andrea Tevlin, rang the alarm bell in writing this Report. The public would be wise to read it and heed her warnings. If not, she will probably go the way of John Torrell. Sanders has a way of getting rid of people who are in the way of his one-man-rule. He needs an Independent Budget Analysts about as badly as he needed an Independent Internal Auditor. Will the infamous Peters-Young "compromise" mean that Sanders can gut Tevlin's budget like he gutted Torrell's?

The CPC and the individual Community Planning Groups need to be strengthened and freed from the dominance of City Planning and DSD. Currently city staff have tight control over these bodies. Betsy McCullogh has traditionally run the CPC meetings. These essential public bodies have become little more than tools of DSD and Planning.

As a result, the planning groups are now playing catch-up in figuring out what happened to them under the guise of a benign Density Bonus Ordinance. The planning groups accepted the lying assurances of City staff that zoning and height limitations were safe from the Density Bonus Ordinance, while that very same staff was crafting a lethal combination of Municipal Code changes, designed to undermine land use zoning and height limitations all over the city.

If Sanders achieves his budget-tweaking power, he will use it as a cattle-prod on any City Councilor who does not go along with his land development program. Any City Councilor who does not vote as instructed may wake up to find his/her favorite kiddies pool or other cherished community program axed from the budget by order of His Honor the Mayor. That's the black art of politics. His developer backers are in to win.

Sanders and his developers are involved in classic social engineering. The last single family home has been built in San Diego. Sanders' developers want to drive the next generation of San Diegans, our children and grand-children, into high-density, high-rise, multi-use "projects", mirroring overcrowded cities all over the world. They want to drive us back to the overcrowded American cities of the 1800s. So much for the American Dream. So much for our individual independence that had become the envy of the world.

Hopefully this is a wake-up call to anybody who cares about the quality of life so carefully created in San Diego. Most of Sanders' developers do not even live in San Diego. They are united in one interest and one interest only - money. It was that single-minded lust for San Diego's development dollars that elected Mayor Jerry Sanders.


And Donna Frye is now in a Budget War with Sanders. 03/03/07

                                                         by Pat Flannery                                        top^

I will start this blog on the Budget War where I left off on February 6, 2007.

You will remember that during that contentious City Council debate Scott Peters figuratively threatened to punch Mayor Sanders in the nose. Sanders jumped up and down and threatened the City Council with "the people". Who does he think elected the City Council? The truth is "the people" want checks and balances, they elected both wings of government. Jerry thinks they only elected him

Unfortunately Scott Peters not only did not punch the Mayor's figurative nose, he turned the other cheek. Read this UT article where Peters went to Sanders last week and made a deal. Matt Hall reports:
"Mayor Jerry Sanders should have the power to cut millions of dollars from San Diego city department budgets this year without City Council approval or public input, the mayor and two council members agreed yesterday".

I can't think of anything more guaranteed to infuriate Donna Frye than Scott Peters and Tony Young taking it upon themselves to make a deal with Mayor Sanders, giving away wide City Council powers to the Mayor, without consulting with their Council colleagues (unless of course Tony Young has elected himself spokesperson for the rest of the Council). What a strange episode in an already bizarre city government.

Let's look at why I think Donna Frye will be hopping mad, and rightly so. Last week she made a startling discover at the Budget & Finance Committee's regularly scheduled monthly meeting. The City's CFO, Jay Goldstone, casually mentioned that his boss, Mayor Jerry Sanders had vacated an entire department over a year ago without telling anybody! That department just happened to be the internal audit department.
Watch the video

Sanders can afford several highly paid spin doctors on his personal staff but he cannot spare a dime for the internal audit department. Now that takes chutzpah.

Watch the video of Donna's stunned response. She could hardly believe her ears. What must she be thinking when she read in the paper yesterday (that's how she found out about it) that Peters had given away her powers to the Mayor?

Peters was at that Budget Committee meeting. He heard about the internal audit committee having been "vacated". Yet he gave these wide spending powers to Sanders knowing that not one City staff will check on a single Sanders invoice. Without authority, Peters gave Sanders this power to spend whatever he wants, whenever he wants, on whatever he wants, without any accountability whatsoever. Unbelievable.

What has Sanders promised Peters and Young in return for these sweeping powers? You don't stick your neck that far out without something in return. Peters voted against this Ordinance when it was introduced for its first reading on February 5, 2007. Unlike Peters, Young voted for it. Now, judging by his joint press appearance with Peters last week, he looks set to do precisely the opposite on Monday. His behavior reminds me of what
Huey Long used to say: "my vote is not for sale, but you can rent it".

I have a feeling Ms. Frye will have a guillotine set up for those two renegade necks when this Ordinance comes up before the whole City Council as Item 202
at 2 PM this Monday March 5, 2007 for its final adoption. If Young turns traitor (as he did on NBC) it will be time to have a word with his District 4 constituents. It was Young's District that bore the brunt of Sanders' cuts last year. Now he is lining up on the side of those cuts.

Here is the Ordinance itself and here is the Independent Budget Analyst's Report supporting it. There are the two main points to the Ordinance:

1. "Budget change authorities granted to the Mayor require Council approval if such action will result in reducing, altering or eliminating service levels to the community, upon which the Adopted Budget has been based."

2. "The quarterly budget reporting process ... will provide a timely and certain schedule for Council review of proposed BPRs. The current 60 day notice and waiting period requirements will not be necessary, allowing for quicker implementation of the BPRs."

As for Aguirre's part in all this - it really is unfortunate that he took the Mayor's side on this issue, against Donna Frye, in February. I went back and played the tape of his little Council Chamber spat with Donna that caused so much comment in the media. He attempted to buy time for the Mayor to kill this Ordinance, by quibbling over words such as "is expected to" or "substantial and material".

Let's hope he rethinks his position on Monday and supports Councilmember Frye. The people do not want Sanders to have the power he is looking for.

We need checks and balances in our form of city government. The Independent Budget Analyst, Andrea Tevlin and Donna Frye have got this Ordinance right. It's what the people want. Sanders and his backers want absolute power. The people do not want that. Surely the fact that Sanders has killed off the one department that is supposed to check up on his check-writing activities is proof enough. He wants too much power.

Surely Aguirre will see that and not oppose this Ordinance - again. This time we need the City Attorney on the side of democracy, not autocracy. This is a good Ordinance and the people need it passed to protect them from one man rule.


Aguirre is now in a land development war. 02/28/07

                                                         by Pat Flannery                                        top^

It's like the Old West - the ranchers vs. the sod busters. It's an all out land war.

Here is the Agenda for last night's meeting of the Community Planners Committee (CPC). Leo Wilson was elected chair. Mike Aguirre attended to assure them he was fully behind a complete and comprehensive Planning Group Indemnification Ordinance, in order to strengthen the Community Planning Groups citywide. He suggested that CPC form an Indemnification Ordinance sub-committee, which it did after he left. He promised to assign a Deputy City Attorney to assist the sub-committee.

The rest of the evening was mostly about updates to the General Plan.

I was struck by the lack of support for the coastal communities' efforts to put a cap on the City's open-ended approach to future noise emanating from Lindberg Field. It seemed to me that many on the CPC believe that Montgomery Field is doomed as an airport and its noise will be dumped on the coastal communities.

Buzz Gibbs, chairman of the Kearney Mesa planners group for example, seems to have bought into the idea that the developers will get Montgomery Field closed down by having the FAA withdraw its operator's license. He has been very supportive of Sunroad's height-busting, FAA baiting, office tower that is causing Mike Aguirre such headaches. Isn't it strange coming from the man whose family once owned Montgomery Field? As a business owner on the field should he not be defending the airfield?

But the developers may have underestimated Mike Aguirre and the coastal communities. They both have a stake in this now. The coastal communities can see what is happening - increased activity at Lindberg will follow Montgomery's closing.

Here is the "Overflight Easement" they hope to impose on property owners over a very wide area of the city. This is the map they intend to use in a "Real Estate Disclosure". They obviously have big development plans for both Lindberg Field and Montgomery Field. I intend to alert my professional association, the San Diego Association of Realtors on this. We realtors do not want to be the bearers of bad news when we sell homes inside that area, that their government has taken "for the use and benefit of the public" the right to pound them day and night with as much aircraft noise as they wish.

Aguirre is now fighting this land development war on several fronts. He started by having his Deputy, Carmen Brock, file a well-written lawsuit against Sunroad. As I wrote at the time "it was music to my ears". I heralded that lawsuit as the moment when we got our City Attorney back, when Mike finally had enough of Sanders and his devious staff.

Aguirre still has a few leftovers from the bad old days of Casey Gwinn. But he has done a remarkable job in cleaning house. Remember all those city attorneys who were hand-in-glove with the MEA and the Pension Board? He got rid of them one by one and still managed to keep the biggest law firm in the city intact. Now he has to get rid of the ones who are hand-in-glove with the DSD.

He started today with David Millar. Millar has long been a shill for the DSD. I'm sure that he will be immediately hired by Sunroad or some other developer, where he really belongs. He has been working for them on City money for too long.

Last year Aguirre hired
Shirley Edwards as his Chief of the Land Use & Environmental Section. She is a top notch attorney and straight as an arrow. Mike and San Diego are lucky to have her. She cares about this community and is untouchable in her integrity. It was inevitable that she and Millar would clash.

Here is what Aguirre had to say about her qualifications when he hired her:
"Edwards has over 15 years of comprehensive environmental, litigation and advisory experience, including direct involvement in CEQA, NEPA, Clean Air Act, Endangered Species Act and other related environmental matters. Prior to joining the City Attorney's office, Edwards was the Directing Attorney for the Stockton office of the California Rural Legal Assistance, Inc. (CRLA) and also worked for over a decade as an environmental and prosecuting attorney for and on behalf of enforcement agencies at the federal and state level. She is a San Diego native and a graduate of the University of San Diego where she obtained her B.A., M.B.A., J.D., and L.L.M."

Ms. Edwards' colleague,
Assistant City Attorney Huston Carlyle, is Chief of the Redevelopment Section. Huston was hired by Aguirre about the same time last year. He occupies a very important position. Fortunately he has also proven himself to be a totally trustworthy professional attorney and an all around nice guy.

He can move with ease from a downtown meeting with Nancy Graham, head of CCDC or Jim Waring, head of land use and economic development for the City, to a group of activists meeting in somebody's living room. He will as patiently explain the intricacies of redevelopment law to the high and mighty as to a concerned citizen over a cup of coffee in their kitchen. Now that is public service. Did anybody ever hear of anything like that happening under Casey Gwinn? That's because Aguirre is still a man of the people which is why he chose a totally different type of person from those of the Gwinn era.

Hopefully the long nightmare of a City Attorney's Office riddled with developer and DSD shills is nearly over. Aguirre can now be a lot more aggressive in curbing the giveaways of the Mayor and his staff. Aguirre's new hires have proven their worth and they obviously like working for him. They have nothing but good things to say about him. It is the leftovers from the old guard that bad mouth him. I do not know of one of his new hires who have a single bad word to say about him. And to my knowledge not one has left. I find that very reassuring. I think the Mayor may have underappreciated Mike's friendship.


The Mayor's staff are giving legal advice. AGAIN! 02/28/07

                                                         by Pat Flannery                                        top^

Last night, after Mike Aguirre left the room, Mayor's staff person, Marcella Escobar-Eck, stood before the regular monthly meeting of the Community Planners Committee (CPC) and gave it legal advice. Again!

She told CPC, in the most emphatic manner possible, that the State Density Bonus Law does not apply to the San Diego Coastal Zone. She emphatically told them that the Proposition D 30 foot height limit is safe from the State Density Bonus Law. That sounds like a legal opinion to me and a very controversial one at that.

Of course we all know she was defending the blatant alteration her boss, Jim Waring, made to
the EIR required by the proposed San Diego Density Bonus Ordinance.

Waring just wants to get his Option 1 Ordinance through the City Council when it comes up again on March 27, 2007. It was continued yesterday to that date. When the first height-busting concession request is denied (as part of their plan) some bigwig attorney like Mike McDade will take it to court and win.

Waring and Escobar-Eck will then wring their hands and blame the City Attorney for giving them bum advice - it was never their intention to bust the 30-foot height limit blah, blah, blah. But it will be too late. The Ordinance will be on the books. That is the dark art of dirty politics. There is big money in those height-busting concessions. Oh, I forgot, Waring and the Mayor are doing this for the low income folks in La Jolla and Point Loma.

The people elected Mike Aguirre City Attorney, not Jim Waring. 02/26/07

                                                         by Pat Flannery                                        top^

Well, there can be no doubt that the days of DSD, or any other City department, moonlighting for the City Attorney are over. Good for Mike. Here is the stiff letter he wrote today to Jim Waring, with copies to the Mayor and City Council.

My personal view is that Mike has been too nice to these people and they took advantage of his friendship. We all know that he gets on well with the Mayor on a man-to-man basis. They are both men's men. But Waring and Escobar-Eck are something else.

However, both these people work for the Mayor and he is personally responsible for their behavior. At some stage Mr. Aguirre may have to confront the Mayor if these two continue to behave like they still work in the private sector. That is their current mind-set. Government to them is a business opportunity.

I noticed that tonight on KPBS's Full Focus, Escobar-Eck referred to the double-option Density Bonus Ordinances being placed before the City Council tomorrow as "the two Ordinances proposed by the City Attorney". I thought that was strange. Has she abandoned her DSD Ordinance? Option 1? Or did she just misspeak?

She certainly did not go out of her way to defend the DSD Ordinance she and Waring have fought so hard to introduce. This could be a sign that DSD will ask for a continuance tomorrow, rather than take the political heat. Mike Aguirre has clearly stated that State Law does not say that density bonus concessions or incentives must be granted ministerially. Waring's whole thrust was that it does.

Besides, enormous pressure is building, from all directions, for a continuance. Everybody seems to have been caught unawares at the enormity of the implications of this very complicated, state mandated, legislation. Everybody wants time to study it.

So it now looks very unlikely that Jim Waring's well-laid plan to do an end-run on the public will succeed. My guess is that the Mayor will reign him in tomorrow and force him to go for a continuance. That would be the smart political thing to do, and Sanders has plenty political smarts. But it will not sit well with Waring. He had a bad enough day today, with Aguirre's scolding letter, but tomorrow may be even worse, he may get a scolding from the Mayor.

The most important thing however, is that some equilibrium has been reestablished in the ship of state. We are a nation of checks and balances and today those checks and balances worked. The people elected Mike Aguirre City Attorney, not Jim Waring.

Latest! Waring secretly changes the Density Bonus EIR! 02/26/07


                                                       by Pat Flannery                                        top^

Now for the latest chicanery. Here is the Mayor's DSD staff recommendation for City Council action tomorrow:

1. CERTIFY Supplement to Environmental Impact Report No. 96-0333 (Project 63422) and adopt the Findings and Statement of Overriding Considerations.

The City Council is being asked to Certify "... that the final Supplement to EIR No. 96-0333 has been reviewed and considered prior to approving the project, certifying the final Supplement to EIR No. 96-0333, and adopting the Findings and Statement of Overriding Considerations."

EIR No. 96-0333, together with its Supplement, was "reviewed and considered" before being presented to the City Council on January 30, 2007. But it has been altered since, without any further "review or consideration" by the public. This is grounds for an automatic continuance tomorrow. You simply cannot do that. Not even Jim Waring.

Here is the version of the EIR put on file at the City Clerk's Office for the January 30, 2007 City Council meeting. As you know, the matter was continued to tomorrow, February 27, 2007. Now look at the version of the EIR they are asking the City Council to Certify tomorrow, February 27, 2007.


The City Council cannot certify this changed version of the EIR as having been "reviewed and considered" by the public.

This is another example of DSD's dirty tricks. They write an EIR, have it "reviewed and considered" by the public, then secretly change it! Is there no end to what they will do on behalf of the developers who elected their boss, Mayor Jerry Sanders.

The City Council simply cannot adopt an Ordinance tomorrow that relies upon an altered EIR without proper public review. It would spawn dozens of law suits. The Madaffer "let them sue us" mantra must not be allowed to prevail.

Now look at the alteration they made. Go to page 2 of 13 of the altered version of the EIR. Before alteration it said: "Proposition D, limiting height in the Coastal Zone, would have to yield to the State Law mandating density bonuses and incentives".

After alteration it says the exact opposite. They simply stroked out the words "have to" and substituted "not" before the word "yield".

How can anybody deal with such people? And we pay their salaries. They seem prepared to tell any lie, misrepresent any law, intimidate and coerce any staff person, to get their way. They elected Sanders, now they own the city. Or do they?


The two Density Bonus Options side by side. 02/25/07

                                                         by Pat Flannery                                        top^

I have been asked to summarize the difference between the two Options for a density bonus ordinance being placed before the City Council on Tuesday. Here are the two Options side by side. Essentially Mike Aguirre recommends that the City comply with State Law 65915 without granting unnecessary additional powers to DSD.

Jim Waring on the other hand wishes to take the opportunity to give wide "ministerial" powers to his Development Services Department. Click on the link to each document.

Option 1 (Waring)


Option 2 (Aguirre)

1. Waring wants to delete Municipal Code Section 142.0760, which currently requires a Site Development Permit each time a density bonus concession is granted to a developer.   Aguirre wants to retain Municipal Code Section 142.0760, continuing to require a Site Development Permit each time a density bonus concession is granted to a developer.
2. Waring wants the line "Shall be processed in accordance with Process One" inserted in the Ordinance, in two places. This would change the existing Ordinance by depriving the public of any say in these concessions. It would deny the public the ability to appeal any concession to the Planning Commission or to the City Council.   Waring's line "Shall be processed in accordance with Process One" is not included in Aguirre's Option 2. Aguirre would have the City continue to process each individual density bonus concession under the appropriate level of review for each individual application.
3. Waring wants to insert into the Municipal Code the power to grant exemptions from the regulations governing Environmentally Sensitive Lands. These concessions would be based upon a DSD "finding" that not to grant such a concession would "interfere with the applicant’s reasonable investment-backed expectations" i.e. an "economic finding".   Aguirre does not want to give that power to Waring and the DSD.

We can no longer accuse Mike Aguirre of not fighting Waring on this. Perhaps he finally has had enough of Waring's land use shenanigans. Aguirre prepared an excellent alternative to Waring's Ordinance. Now it is up to the City Council on Tuesday. They will face the wrath of their constituents if they choose Waring's Option 1. The best choice might be to continue this Item again and hold a series of public hearings. There is no need to rush this through on Tuesday - unless of course you happen to be a developer.


The City Attorney's legal advice must prevail. 02/25/07

                                                         by Pat Flannery                                        top^

The density bonus issue has uncovered a far deeper problem. Apparently the Mayor's land use staff flat out refused to accept the legal advice of the elected City Attorney, Mike Aguirre. Our entire system of government, a government of laws not of men, is therefore threatened by this super-aggressive behavior of the Mayor's land use staff.

Mike Aguirre tells me that far from advising the Mayor's land use staff that the State Density Bonus Law,
65915, requires that density bonus concessions be granted by California cities without any discretionary oversight (City Council), he has advised them precisely the opposite - that it leaves the manner of implementation up to each city.

Despite that advice the Mayor's land use staff is going forward with the following legal advice to the City Council on Tuesday
(staff advice to City Council (page 63):

"There are two alternative actions for consideration. First, the Council may adopt the state mandated density bonus regulations and deny or modify the city-initiated density bonus incentives and still be in compliance with state mandates. Second, the Council may deny and/or modify the state mandated provisions of the regulations. However, this action would cause the regulations to be out of compliance with state law."

In other words the Mayor's land use staff are advising the City Council that if the City Council adopts the Option 2 Ordinance, the one prepared by the City Attorney Mike Aguirre, the City will "be out of compliance with state law". The Mayor's DSD staff is giving false legal advice to the City Council in order to achieve its land use objectives.

Obviously the Mayor and his developer backers want the power the Option 1 Ordinance gives them. It would empower them to bust the 30 foot height limit all along the coast and all over the city. It is central to their plan. Therefore, it is vital that the public stop them. If not, we will have a self-empowered DSD, out of control on behalf of developers.

If the Mayor's land use staff succeeds in sidelining the City Attorney's legal advice on this vital issue on Tuesday, they will do it on any future legislation that comes before the City Council. Their disregard of the elected City Attorney strikes at the very heart of our democratic system of government.

Mr. Aguirre has personally confirmed all the above to me. Further, he is appealing for the public's support in ending what amounts to a coup of his City Charter-mandated position as the chief legal advisor to the City. When the developer interests failed to get their developer-friendly candidate, Leslie Devaney, elected in November 2004, they simply ignored the legal advice of the City Attorney elected by the people of San Diego.

So the problem is far deeper than we thought. Perhaps we have not heard Mike Aguirre's cries for help before because we were not listening. When I think about it, he has been telling us this for some time. Today he named off to me a long list of land use issues such as Sunroad, where he gave the Mayor's land use staff the correct advise, but they went and did exactly the opposite. What was he to do? Sue the Mayor? It's crazy!

It is time for the public to reestablish the rule of law. This developer-financed administration of Jerry Sanders is fast becoming a dictatorship of developer interests. Not only does it disregard the law, as explained to it by the elected City Attorney, it  blatantly misrepresents the law to the City Council in order to get the sweeping "ministerial" land use powers it seeks. THAT has all the hallmarks of dictatorship.

The elected City Attorney must speak for the City on matters of law. Otherwise there will be chaos. Any staff group could give whatever legal advice to the City Council that serves its purpose. Tuesday will be a defining day for City Government. If the City Council ignores the legal advice of the elected City Attorney and takes that of the Mayor's land use staff, there will be chaos in City government.

When high-rise condos start going up on the beach, people will wake up. 02/23/07

                                                         by Pat Flannery                                        top^

Here is DSD's and Planning's response to Donna Frye's 20 questions regarding density bonuses. I notice nobody has signed it. Most of the questions are legal questions, yet no attorney would put their name to it. Was the City Attorney consulted? If not why not?

In answer to her key question # 13 "What section of state law specifically requires a ministerial approval for density bonus?" it answers:

Section 65915(k) of the State Affordable Housing Density Bonus states that the granting of the incentive cannot require a discretionary approval as stated below.

“The granting of a concession or incentive shall not be interpreted, in and of itself, to require a general plan amendment, local coastal plan amendment, zoning change, or other discretionary approval. This provision is declaratory of existing law.”"

That is not what Ms. Frye asked. She asked where specifically does state law require a ministerial (no City Council oversight) approval. Their answer is that state law does not require a discretionary approval (subject to City Council oversight). What kind of an answer is that? State Law mandates ministerial approval because it does not mandate discretionary approval? I think that answer is an insult to the elected official, Councilmember Fry, who asked it. And we don't even know who wrote it!

The City Attorney has written an Alternative Ordinance to the one put forward on January 30, 2007 by DSD that contained a requirement that all density bonus concessions be granted ministerially. Aguirre drafted a new Ordinance, without the "ministerial" requirement, but recommends against adopting it! It would be hard to think of anything more Machiavellian than that.

Here is the City Attorney's memo dates February 23, 2007 accompanying the "Alternative" Ordinance. Note that it does not correct Staff Report 07-021 (wrongly) advising City Council that State Law mandates a "ministerial" process for all density bonus concessions. On page 2 of that Report, vetted by the City Attorney, it clearly states: "Current state density bonus law requires that the density bonus be granted ministerially (Process One)."

It is outrageous that the Mayor's staff continues in this lie. It will cause a flood of law suits against the City when these "affordable" housing projects are built, because their enabling Ordinance was passed under false legal advice from the City Attorney.

The City Attorney's memo dated February 23, 2007 references an advisory by the County Council's Association of California, regarding the implementation of State Density Bonus Law. Nowhere does it state that State Law mandates that these concessions be granted by staff ministerially, without oversight or review by the legislative body.

In fact the CCAC's recommendations are quite the opposite. They urge extreme caution in passing this Ordinance and the manner of its implementation. San Diego is attempting to leave it all to the discretion of the Mayor and his developer-friendly staff, and we all know what that would mean. Here is CCAC's conclusion:

"Conclusion:  California's density bonus law is a confusing and ambiguous statute that relates poorly to, and undermines, planning and zoning law.  Although density bonus projects are not common, the law contains numerous protections for applicants, and communities that are unprepared may find themselves seemingly forced to approve an undesirable project. Preparing a local density bonus ordinance that clarifies ambiguities and requires detailed information from the applicant can give counties and cities the tools they need to achieve attractive projects while meeting the statute's intent."

Here is the City Council Docket for Tuesday:

"Introduce the ordinance in either Option 1 or Option 2.

Option 1 (the January 30 ordinance):

§143.0725 Density Bonus Provisions
A development proposal to utilize density bonus, in and of itself, shall be processed in accordance with Process One. A development requesting a density bonus is subject to the following ......

§143.0740 Development Incentives for Affordable Housing Density Bonus Projects
(b) The following incentives shall be provided through Process One consistent with Tables 143-07A, 143-07B, and 143-07C.

Option 2 
(the City Attorney's "alternative"):

§143.0725 Density Bonus Provisions
A housing development entirely situated on land zoned for five or more pre-density bonus dwelling units for which an applicant is seeking a density bonus is subject to the following ....

§143.0740 Development Incentives for Affordable Housing Density Bonus Projects
(b) The following incentives are available consistent with Tables 143-07A, 143-07B, and 143-07C."

As you can see, Option 1 still requires Process One (ministerial) in both sections, while Option 2 does not require Process One in either section.

Then for the Machiavellian part. The Mayor's staff, backed up by memos from the City Attorney, say that Option 2 would be "out of compliance with state law". Then why are they offering it as an option? To make sure that the City Council passes Option 1 of course! How stupid do they think we are? Clearly it's a set up.

Here is the staff advice to City Council (page 63):

"There are two alternative actions for consideration. First, the Council may adopt the state mandated density bonus regulations and deny or modify the city-initiated density bonus incentives and still be in compliance with state mandates. Second, the Council may deny and/or modify the state mandated provisions of the regulations. However, this action would cause the regulations to be out of compliance with state law."

So what we've got here is the Mayor's staff and the City Attorney's staff united in giving cover to those City Councilors who want to bust the 30 foot height limit all along the coastal zone by deliberately misrepresenting State Law . As I have said many times in my blogs below, state law does not mandate Process One for density bonuses and everybody at DSD and everybody at the City Attorney's Office knows it.

The only question is: who on the City Council wants this? Do Peters and Faulconer want it? We'll know on Tuesday. If they vote for it, they obviously want it.

All I can do is wish Donna Frye luck. She seems to be the one remaining voice against incredible dishonesty at City Hall. If Faulconer and Peters vote for this, they have been lying to their coastal constituents all along. I don't know at what stage the public will get so enraged at being continuously lied to that they will march on City Hall.

No other city in California has asserted that state law requires that all density bonus concessions be granted by staff without any recourse to the City Council. If they pass Option 1, the Mayor's staff will be able to hand out 30 foot height limit busting concessions to every developer who applies for them and the City Council will have nothing to say about it. Is that what Peters and Faulconer want? Apparently so.

Here is Los Angeles' Density Bonus Ordinance. Perhaps Mr. Aguirre should call them and tell them they are "out of compliance with state law". It really is time for some honesty around here. Busting Prop D and lying about it may prove to be the straw that broke the camels back. When high-rise condos start going up beside some important people's homes on the beach, Peters and Faulconer will have some explaining to do.


The Density Bonus Law is a defining moment in City Government. 02/22/07

                                                         by Pat Flannery                                        top^

"What section of state law specifically requires a ministerial approval for density bonus?" That is question number 13 (page 5 of 7) on Donna Frye's memorandum to Mayor Sanders, whose staff drafted the Density Bonus Ordinance going before the City Council on Tuesday.

It looks like this Draft Ordinance has not yet passed muster at the City Attorney's Office. Mr. Aguirre has personally intervened and read this controversial Draft Ordinance. Normally he would rely on his specialized staff, the deputy city attorneys who comb through the wording of each draft ordinance for any discrepancy with state law.

It is now clear that this matter having been brought to his attention, Mike does not agree with the drafters of this density bonus legislation, that all concessions and incentives must be granted ministerially.

Here is the section of State Law that is in dispute. Judge for yourself:

 "65915 (k) The granting of a concession or incentive shall not be interpreted, in and of itself, to require a general plan amendment, local coastal plan amendment, zoning change, or other discretionary approval. This provision is declaratory of existing law."

Does it support Jim Waring's assertion that all density bonus concessions and incentives must be dealt with under Process One, i.e. ministerially? Or does it say the opposite, that the State density bonus law should not affect how a city processes a particular development, just because there is a density bonus concession involved?

In any case the scene is set for a titanic battle between the two branches of government over the interpretation of the above clause, with the City Attorney's Office in the middle. Before Mike Aguirre intervened, his staff had been following the Waring interpretation. But now that Donna Frye has asked the vital question, together with 19 other questions mainly relating to the adequacy of the accompanying EIR, it is up to Mike.

If he formally disagrees with the Mayor's staff, then the Ordinance will have to be amended before going to City Council on Tuesday. Will he determine that, as written, it relies on an incorrect interpretation of State Law, which if not corrected will cause all kinds of legal complications for the City down the road? If the City Council were to pass it on Tuesday as currently drafted, Donna Frye's worst fears may well be realized. And there would be a myriad of environmental law suits against the City, a bonanza for environmental attorneys.

The City Attorney's Office must now step up to the plate and become that branch of government that enforces the law without fear or favor of either of the other two branches.

It appears that the developer community has been drafting the City Ordinances that govern development and the City Council has been dutifully enacting them. It is supposed to work the other way around. The legislature, i.e. the elected City Council, is supposed to legislate and the Executive, i.e. the Mayor's Office, is supposed to execute. Over the years San Diego seems to have got it turned around. That is why this is such a defining moment for all of them. It certainly is for Mike Aguirre.

It may be that he will not put his name to Waring's interpretation of State Law 65915 (k). How he will reconcile the aspirations of the two main branches of government over the next few days will test his political skills and will define the remainder of his term as City Attorney. He is up against a very determined developer lobby who are used to getting their way. They want this legislation real bad. The San Diego Regional Chamber of Commerce has put everything it's got into getting this height-busting legislation passed. If it is defeated it will put a serious crimp in their drive towards densification.

It all comes down to one clause in the State Density Bonus Law - Section 65915 (k).

The solution to the Density Bonus vs. 30 Foot Height Limit problem. 02/16/07


                                                       by Pat Flannery                                        top^

So, what is the solution to saving the 30 foot height limit?  Enact what the State Density Bonus Law requires and no more. It's that simple.

Why then all the fuss? Because Sanders' staff is trying to enact sweeping developer-friendly legislation under cover of complying with State mandated density bonus incentives.

The Ordinance they have proposed says:

"BE IT ORDAINED, by the Council of the City of San Diego, as follows:

Section 1. That Chapter 14, Article 3, Division 7, is amended by amending Sections 143.0710, 143.0715, 143.0720, 143.0725, 143.0730, 143.0740, and 143.0750, and deleting Section 143.0760
[emphasis added].

Section 2. That Chapter 12, Article 6, Division 7, is amended by amending Section 126.0708."

Here's the solution:

Solution Part 1
(what should NOT be included in the Ordinance):

(A) The first part of the solution is NOT to delete Section 143.0760. When you read it (bottom of page 5) you will immediately see why they wanted to delete it. Their reason had nothing to do with implementing a density bonus ordinance:

"A deviation from the provisions of either Section 143.0730 or Section 143.0740 may be requested in accordance with a Site Development Permit and shall require that the findings in Section 126.0504(m) be made."
[emphasis added]

A Site Development Permit to the DSD and its developer clients is like a cross to a vampire. These permits are codified at Chapter 12, Article 6, Division 5. Read the "Purpose" of these permits on page 1 of 12 and you will see why DSD hates them.

Section 126.0504(m) deals specifically with how these Site Development Permits apply to affordable housing. Read page 10 of 12. This Section requires a finding that the project really is affordable housing, not the fake variety.

No wonder DSD wanted to get rid of it (and the City Attorney obliged). The taxpayers pay the salaries of the staff who concocted this Ordinance on behalf of the developers.

So the first part of the solution is simply not to implement this little piece of chicanery - do not delete Section 143.0760. It offers some protection, in that it requires a level of review higher than an over-the-counter Process One "stamp-out", as they want.

The City should NOT increase the density bonus above that required by the State. It should adopt into law the density bonuses mandated by the State and no more, at least in those areas that have an existing Height Limit Overlay Zone.

Look at what the City is proposing. They are going way beyond what the State requires. They are offering developers way more bonuses than State Law requires.

(C) They should NOT include in this density bonus legislation "Section 2. That Chapter 12, Article 6, Division 7, is amended by amending Section 126.0708."

As I explained in my February 13 blog "
§126.0708 Findings for Coastal Development Permit Approval, starting at page 17 in their Draft Ordinance, they have inserted a whole section to keep Bob "easy findings" Manis busy. Remember, they tried to do all this under Process One i.e. "ministerially"! This is a classic pork-barrel under the guise of State mandated density bonus. All a developer will need to do is come up with some sad story about economic hardship if not granted the permit. Manis will be only too delighted to help him out."

Solution Part 2 (what should be included in the Ordinance):

If the City wants to protect the 30 foot height limit all over the city, not just in the Coastal Zone or the Prop D area, all it has to do is the following:

Add a small sub-section (c) to
§131.0103 Official Zoning Maps, which would read something like this:

"In any area of the City where a Height Limit Overlay Zone exists, the overall maximum density shall be 1,452 square feet." That's all. The existing Land Development Code takes care of the details.

The key is to use the existing Land Development Code.

Chapter 13, Article 1, Division 1 is about Base Zones. Read the "Purpose" of Base Zones on page 1 of 12. T
he current effect of a 30 foot height limit is 30 units per acre. There are 43,560 square feet in an acre, divided by 30 = 1,452 square feet. The Official Zoning Maps use maximum square feet rather than maximum number of units.

The Certified Housing Element of the San Diego General Plan (page 18) states:

"The state Department of Housing and Community Development generally utilizes a threshold of 30 units per acre as the minimum density needed to potentially provide housing units for low- and very low-income households in urban areas. Fortunately, for the FY 2005-2010 period, San Diego does have sufficient land available that is designated for 30 units per acre or higher."

So, adding the above §131.0103 (c) would set the Base Zoned height limit for all density bonuses within a Height Limit Overlay Zone at 1,452 square feet and thus bring the implementation of the State density bonus law in line with San Diego's General Plan.

Remember, density bonuses are calculated on "Base Zone" density, not density after applying an Overlay Zone. For example, the Base Zoned height limit in the Coastal Zone ranges from 30 to 80 foot. Therefore a developer receives a considerable bonus before the application of the density bonus or any additional "concessions" or "incentives".

I offer this workable solution, there may be others, in order to demonstrate that the City of San Diego can readily enact a Density Bonus Ordinance that achieves the State's legislative objectives, while protecting the interests of San Diego citizens. All that is required is that city staff, both DSD and City Attorney's Office, act in good faith and serve the people of San Diego, not the narrow interests of the developer community.


A faded old picture tells the story - only too clearly. 02/15/07

                                                         by Pat Flannery                                        top^

This is the picture that sent San Diegans out in droves on
November 7, 1971 to vote for Proposition D. It enacted an Ordinance that still limits the height of buildings within the defined Coastal Zone to no more than 30 feet, except in the downtown area. Now Sanders and the developers want to extend "downtown" to the entire Coastal Zone.

We have to fight the good fight all over again.

The scary part about this new fight is that Mike Aguirre (our friend) is in bed with Sanders on this vital issue. He is acting as Sanders' attorney in gutting Prop D, when I thought we had elected him our attorney.

Here's their plan in a nutshell:

On February 27, 2007 they will enact a Density Bonus Ordinance, which gives a 20% "density bonus", plus a "concession" from any one "development standard", to any developer who will include 10% "moderately" affordable units.
The "concession" of course will be an exemption from the Prop D height limit. The developer can then go as high as he likes, which of course is the whole idea.

Aguirre's ignominious part in all this is to spread the lie that Prop D is protected by some magical powers he attributes to the Coastal Act, which it does not have.

So let's take an example. A developer wishes to build a high-rise condo project right on the beach, anywhere in the Coastal Zone. He wants to build 100 condo units. All he has to do is include 10 "affordable" units, in order to be able to go as high as he wants.

So what's "affordable"?

The California Health & Safety Code defines "moderate" income (which is all they need to get the height "concession") as 120% of the area's median income. Now go to SANDAG for the San Diego "median income". As you can see it is currently $61,043.

120% of $61,000 is $73,200. Any individual in San Diego who earns less than $73,200 qualifies for "low or moderate" income housing. So how much can a person earning $73,200 qualify for? Well, I am a mortgage broker and do this kind of calculation all day every day. So, several years ago I developed a spread sheet for that purpose.

The answer I would give to a client: approximately $400,000. In other words my client could qualify, as a "low-mod" buyer, in any project that offered a unit for $400,000. I could do hundreds of those deals today, which is why I should be on the other side of this issue. But I am burdened with a conscience. Perhaps it's the Irish in me.

Now I don't know about you, but I do not consider a person earning $6,100 per month with $85,000 cash to put down on a beach front condo in La Jolla, a particularly poor person. So I don't think the other 90 multi-million dollar condo owners will object too much with having to rub shoulders with 10 such "poor" folks, in the elevator and the underground parking, as the price they must pay for their splendid ocean view.

In San Diego, where only a small number of people can qualify for the median home price, everything that sells is "affordable housing". The developers will now be able to designate every single project in San Diego as "affordable housing". If it is selling it already is! Therefore, every single project will be entitled to a height limit "concession"!

Remember, the entire condo project becomes a "low income" housing project once it includes the above defined "poor people". The 90% millionaires will be living in a "low income" condo project on the beach. The entire Coastal Zone, not to mention East of 5, will be packed with "low income" housing, as depicted in the old faded picture above.

Pretty neat huh? Better call your City Councilor and ask him/her to explain to you what the heck is going on. Only our incredibly sophisticated San Diego developer community, perhaps the most sophisticated in the Nation, could come up with something as brilliant as this. No wonder Mike Aguirre has been seduced by them.


1,000 lying lawyers cannot change Prop D vs. Density Bonus. 02/13/07

                                                         by Pat Flannery                                        top^

Here is the latest Memorandum of Law (MOL) from the City Attorney's Office on the proposed Density Bonus law coming before the City Council on February 27, 2007. It answers three questions.

I will deal with questions 2 and 3 first and then come back to number 1.

2. The good news is that in answering question 2, they have backed down from their outrageous attempt to insert: "the following incentives shall be provided through Process One" (top of page 4).

They have replaced it with
"A request for an incentive or concession shall not change the decision process otherwise applicable to the development" (bottom of page 3). To mirror State Law that sentence should read "A request for an incentive or concession shall not change, in and of itself, the decision process otherwise applicable to the development".
Unfortunately, by leaving out "in and of itself" and using the words "shall not" they have excluded the possibility of a density bonus concession being treated as a Conditional Use Permit, as other cities are doing e.g. South Pasadena. The City Council should be aware of this so it can decide whether a density bonus concession should be treated as a Conditional Use Permit, which requires discretionary review.

However, this Memo does concede that an application for a density bonus concession shall not automatically be a Process One and does not change the otherwise applicable permitting Process. That is what we sought. They had tried to insist that State Law mandated Process One. They knew that to be a wrong.

Also, in tidying up after their sneak attack, they have struck out "notwithstanding Planned Development Permit Procedures (Chapter 12, Article 6, Division 6)" (bottom of page 3) from the previous draft. They are thus admitting that their outrageous Process One attempt would have been in breach of their own existing Land Use Code

3. The entire number three question and answer is spurious and merely states the obvious: a developer may ask for any concession from any existing Development Standard. I wrote on 02/07/07:

"San Diego's Prop D 30 foot height limit is a "Development Standard". Therefore a developer may ask for a "concession" from that standard and the City must respond. A city cannot prevent a developer from asking for any deviation from any "Development Standard", as defined in State Code Section 65915 (o) (1). It can only decide what its answer will be."

1. So back to the all-important number one question: "Does the state density bonus law allow an applicant to violate the Proposition D height limit as a requested incentive or concession?" They say No. I say Yes. Again, as with the so-called "mandated" Process One, they are absolutely wrong about this and they know it. This is another blatant attempt to read something into State Law that is not there.

They quote the California Density Bonus Law Section 65915 (m): "Nothing in this section shall be construed to supersede or in any way alter or lessen the effect or application of the California Coastal Act (Division 20 (commencing with Section 30000) of the Public Resources Code".

They refer back to the City Attorney's MOL dated September 8, 2006, which states in its conclusion:

State Density Bonus Law requires the granting of incentives and concessions under certain circumstances. However, because the Density Bonus Law also requires compliance with the Coastal Act, the City of San Diego has no authority to grant development incentives or concessions that are not provided for in the local coastal program as certified by the California Coastal Commission.

Local regulations and initiatives are generally preempted by the State Density Bonus Law. However, those regulations that are part of the certified local coastal program, including Proposition D, cannot be determined to be preempted, and must be read in conjunction and reconciled with the Density Bonus Law."

But, that is just flat out wrong. The mere approval and certification by the Coastal Commission of a local planning regulation e.g. San Diego's Prop D 30 foot height limit, does not make it part of the Coastal Act. Certification merely allows the City of San Diego or any other city to apply any additional standard that is not contrary to the provisions and objectives of the Coastal Act, in issuing a Coastal Permit. Additional provisions do not become part of the Coastal Act. That would be ridiculous. A city could literally rewrite the Coastal Act as if it were its own Municipal Code.

In drafting this Density Bonus Amendment and in writing these two MOLs, Deputy City Attorney Sharon Thomas deliberately tries to find ways of giving the developer community what it wants. It wants to sneak this Prop D busting Ordinance past a gullible public by falsely asserting that it does no such thing.

In fact the Density Bonus Law in Section 65915 (g) (5) states the exact opposite to what Thomas asserts: "The granting of a density bonus shall not be interpreted, in and of itself, to require a general plan amendment, local coastal plan amendment, zoning change, or other discretionary approval." In other words the Density Bonus Law can be applied despite anything that might be incorporated in a Local Coastal Program. The legislators provided for and shut out exactly what Ms. Thomas and the developers are attempting to do.

And again at Section 65915 (k) they restate their caveat: "The granting of a concession or incentive shall not be interpreted, in and of itself, to require a general plan amendment, local coastal plan amendment, zoning change, or other discretionary approval. This provision is declaratory of existing law." What could be clearer than that?

Now for the sneakiest trick of all: Ms. Thomas' MOL admits on page 2 that "The proposed ordinance does not amend that part of the City’s local coastal program." In other words she admits that in order to enact San Diego's Density Bonus Law there is no need for a trip to the Coastal Commission. Then what part of the City's Local Coastal Program are they changing? The Environmentally Sensitive Lands provision!

That's right. Not satisfied with busting the Prop D height limit, while loudly protesting their innocence, they are granting themselves the means of busting the Environmentally Sensitive Lands provisions in the Coastal Zone Program.

Read §126.0708 Findings for Coastal Development Permit Approval, starting at page 17 in their Draft Ordinance They have inserted a whole section to keep Bob "easy findings" Manis busy. Remember, they tried to do all this under Process One i.e. "ministerially"! This is a classic pork-barrel under the guise of State mandated affordable housing. All a developer will need to do is come up with some story about economic hardship if not granted the permit. Manis will be only too delighted to help him out.

Even when a project may have to go to a higher discretionary process, the "easy findings" will flow and the Council will uphold them all, just as they did with NBC. Whatever it took to get Tony Young's vote at NBC will be done again and again.

All the above discussion does not even mention what happens East of 5. If they can do this West of 5, can you imagine what they will do East of 5? Maybe that is why they are beginning to tell us about the joys of live-work units. They know that all this density will jam the roads and there will be no public transport worth mentioning.
Watch the video where the SDRCC tries to sell us on their live-work heaven, sans parking.



The end of Planned Districts. "Form-Based Codes" to the rescue. 02/12/07

                                                         by Pat Flannery                                        top^

As I explained on February 5, 2007, under current San Diego City Law a development permit for a property located in a Planned District cannot be granted "ministerially". That is why Sanders and his staff want to abolish all Planned Districts.

Watch the video where Jim Waring said at the last Land Use & Housing Committee meeting that the Planned Districts' Community Plans  are merely advisory and that he wants to make them part of the Land Use Code so that people can understand them!

Jim, I hate to break this to you, but they are already part of the Land Use Code, Chapters 10 thru 15 of the Municipal Code, and are anything but "merely advisory". Of course that is exactly why he wants to get rid of them. He is trying to downplay the impact of their elimination. He is a master publicist.

The thing most people are not aware of is that several City Councilors are going along with Sanders and Waring on this.

Watch the video of Tony Atkins setting up the need for "clustering" Planned Districts in her area.

Watch the video where Tony Young deftly sets up Bill Anderson (the Planning Czar) for his "clustering" pitch - it costs too much to prepare a Community Plan. Then Ben Hueso chimes in with clustering the Planned Districts of South East and Bario Logan. Well done Tony and Ben, I'm sure you're constituents have no idea what you are up to. They could never imagine such betrayal.

The point is: the politicians intend, as a first step towards "Form-Based Codes", to get rid of all Planned Districts. The public will have no say in planning decisions. That's what folks voted for when they voted for Sanders. I wonder how many of them realize it?

For those of us who do, there is no point railing at Sanders' well-chosen staff (we all know what Waring was hired to do). We must rail at politicians like Atkins, Young and Hueso, who are supposed to be protecting the public. Instead they are throwing open the city's gates to the developer hordes. But they are relying on a sleeping populace.


The Chamber wants to bust the 30 foot height limit. 02/11/07

                                                         by Pat Flannery                                        top^

The San Diego Regional Chamber of Commerce had 18 people lined up on January 30, 2007 to push the Density Bonus legislation . If we are to believe Jim Waring they were there to help him protect the 30 foot height limit. What do you think?

Watch the video . They will be there again on February 27th. Will you?

The City's proposed Density Bonus Law definitely busts Prop D. 02/07/07

                                                         by Pat Flannery                                        top^

Last week I accused the City's DSD of attempting to circumvent the Prop D 30 foot height limit under the guise of complying with State law regarding affordable housing. DSD has since offered an amendment to the Ordinance it brought before the City Council last Tuesday. The Council continued the Item to February 27th.

Unfortunately the offered amendment is merely declaratory of existing law. It did not address the issue I actually raised: §143.0740 (b) which says "the following incentives shall be provided through Process One".

In any case, here is the spurious amendment they offered:

"§143.0740 (a) (5) Any development requesting an incentive within the Coastal Overlay Zone shall be required to make the findings in Section 126.0708 (i.e. obtain a City-issued Coastal Permit) and any development within the area identified on Map C-380 (i.e. the Prop D area) shall be subject to the regulations of Chapter 13, Article 2, Division 5, (i.e. the Codification of Prop. D, known as the Coastal Height Limit Overlay Zone) in accordance with the certified Local Coastal Program (i.e. the City's LCP already certified by the Coastal Commission)."

But that is already the case!

Here is a "clean" copy of the full Proposed Ordinance, with this amendment included. They simply added a spurious clause (5) to
§143.0740 (a), on pages 11 and 12.

I downloaded the entire California Government Code Section 65915, the relevant State law on the matter of Affordable Housing Density Bonus, which you can read for yourself. I urge you to do so (for some reason a hyperlink to the State's server will not work, but try it here anyway).

First, an explanation of the difference between a "density bonus" and a "concession".

State Code Section 65915 mandates that cities give a "density bonus" to developers who are willing to include in their projects a percentage of affordable housing units. The size of that bonus is determined by the percentage of affordable units included in each project. Read the State's Chart in Code Section 65915 linked above. DSD has incorporated the State Chart into its Proposed Ordinance as Tables 143-07A, 143-07B, and 143-07C. The two charts say exactly the same thing.

In addition to this "density bonus", the State requires cities to offer 1 to 3 additional "concessions or incentives", again based upon the percentage of affordable units included in each project. These "concessions" are deviations from a city's own "Development Standards". They are not mandatory. But a city must offer them.

A developer may ask for any "concession" that would help achieve the "density bonus" the project is entitled to under Section 65915. The city may refuse to grant a particular "concession" and offer something else instead. The State does not mandate what a "concession" must be, only that it be a "Development Standard" of that particular city.

A city may grant only up to a certain number of "concessions". Even if the developer does not need them to achieve the State-mandated "density bonus", a city may grant them as additional "incentives". That becomes a matter of policy.

San Diego's Prop D 30 foot height limit is a "Development Standard". Therefore a developer may ask for a "concession" from that standard and the City must respond. A city cannot prevent a developer from asking for any deviation from any "Development Standard", as defined in State Code Section 65915 (o) (1). It can only decide what its answer will be.

It is this answer to a "concession" request that DSD is trying to load in favor of the developers. DSD inserted a clause in the Proposed Ordinance that would mandate DSD's response be a Process One determination! Every time! That is pure chicanery.

Read my blog of February 5, 2007 for a full explanation of the significance of Process One.
And look again at "Diagram 112-05A", contained in the Land Development Code (Chapters 10 thru 15 of the Municipal Code).

DSD quotes a clause in State Code 65915 (k):
".... The granting of a a concession or incentive shall not be interpreted, in and of itself, to require a general plan amendment, local coastal plan amendment, zoning change, or other discretionary approval [emphasis added]." Nor does it require, "in and of itself", a Process One determination! DSD is misrepresenting this clause as justification for mandating Process One.

When a developer asks for an exemption from the Prop D 30 foot height limit (not in the Coastal Zone), according to the Proposed Ordinance, §143.0740 (b), "the following incentives shall be provided through Process One". That's what needs to go.

In the Coastal Zone there is some protection, not because of the spurious amendment put out by DSD last week and described above, but because the Coastal Act says so.

The Coastal Act says all Coastal Development Permits have to be Process Two, i.e. discretionary.
If you look at "Diagram 112-05A" you will see that the only difference between Process One and Two is that the staff decision can be appealed to the Planning Commission, that may still use its discretionary power and grant the "concession". It would then become a discretionary "incentive".

So what can DSD do (if it wants to) to ensure that every request for a height limit "concession" is treated no differently than any other planning application? What would work best is a declaratory statement in the Proposed Ordinance reiterating State Code 65915 (k), emphasizing the fact that State Law is neutral on how a city processes any "concession" request. A myriad of factors determine under which Process the City should process any application, including a density bonus concession. In its Code Section 65915 (k) the State was very careful to not interfere in that flexibility.

When appropriate DSD staff can still process a "concession" request under Process One. They will simply rely on the Land Development Code to decide the appropriate Process. A clause mandating a Process Two or higher would be doing for supporters of Prop D, what DSD is attempting to do for developers.

The existing system, as depicted in "Diagram 112-05A", should be allowed to work. DSD staff do not need any special guidance to tell them under which Process they should administer density bonus "concessions". The existing procedures are clear and universal. DSD staff are already familiar with them.

Now for an explanation of what happens when the City (DSD) denies a "concession" request. State Code 65915 provides for that situation as follows:

"Section 65915 (d) (1) An applicant for a density bonus pursuant to subdivision (b) may submit to a city, county, or city and county a proposal for the specific incentives or concessions that the applicant requests pursuant to this section, and may request a meeting with the city, county, or city and county. The city, county, or city and county shall grant the concession or incentive requested by the applicant unless the city, county, or city and county makes a written finding, based upon substantial evidence, of either of the following:"

The Section then goes on to describe a series of legitimate grounds for denying a "concession". The most likely would probably be a "finding" that:

"The concession or incentive is not required in order to provide for affordable housing costs, as defined in Section 50052.5 of the Health and Safety Code."

But what if that particular "concession" is the only one that will achieve the project's "density bonus" entitlement? For example, a developer could apply to build 100 units with 30 "affordable" units included and claim a 35% State-mandated "density bonus" on a lot that would normally be too small for 100 units. The developer would then claim "entitlement" to any additional "concession" that would enable the achievement of a 35% "density bonus".

If no combination of any three "concessions" (the max allowed to anybody) could enable the 35% density bonus entitlement to be achieved, would DSD be obligated under State Law to grant a Prop D busting "concession"? Or would other factors come into play? What would be the City's options? That question should surely not be confined to a Process One determination. We all know what Bob Manis would "find".

If the DSD Ordinance as currently drafted goes forward, Jim Waring can grant Prop D-busting "concessions" to every developer on Jerry Sanders' campaign contribution list. Waring and DSD will justify them all as necessary "incentives". DSD, not the City Council will decide when developer "incentives" are necessary. DSD will be in charge of the affordable housing "incentives" cookie jar. That's the real intent.

Nice try DSD. Please get rid of "the following incentives shall be provided through Process One" and let's have a serious public discussion on how to reconcile the various interests involved here, not just the developers. It's called democracy.


A big victory for Donna Frye and the public yesterday. 02/06/07

                                                          by Pat Flannery                                        top^

Yesterday at City Council Donna Frye took on both Sanders and Aguirre. And won!

The vote was 5 to 3 against the Mayor. The Council discussion was important because it brought out in the open the growing Council concern over Sanders' naked thrust for power. He and his advisors made a serious tactical error yesterday in trying to portray his budget fight with the City Council as between Sanders and the unions. It is not. He has already milked the public's dislike of the unions for all he is going to get out of it. It gave him Prop C. And he may lose even that if he overplays his "privatization" hand.

If the "union" analysis was true the Mayor would probably have won yesterday. Advisors like Carl DeMaio misled him by indulging in too much rhetoric about "special interests". The Mayor took a bloody nose because of their wrong analysis.

On the other hand Frye got the mood of the public and of her City Council colleagues exactly right. And she outclassed Aguirre in the discussion. She showed him up as a mere spokesman for the Mayor. That will damage his credibility with the City Council for a long time to come. He threw away all objectivity in his frantic effort to save his friend from a political defeat. The result was an embarrassing fiasco for both of them.

It was also a big win for the Office of the Independent Budget Analyst. I have been a big admirer of Ms. Tevlin since she came aboard. Yesterday she earned her salary.

This puts the Mayor and his advisors on notice that San Diego still has a City Council. The public want to retain checks and balances. The Mayor's takeover of city government may not be as easy as his advisors have been telling him. The public understand more than they think - they can distinguish between holders of an office and the institution.

Fortunately we now have a very experienced City Council. There is a lot of institutional knowledge on there. The Mayor's team in contrast is inexperienced. Yesterday they all learned that they underestimate the political skills of Councilmember Frye at their peril - something Aguirre should also take on board. I am heartened that our system is working as well as it is. We may yet come out of all this as an example for everybody.

The Planned District Ordinances are next for DSD's chopping block. 02/05/07

                                                          by Pat Flannery                                        top^

Last Friday the City Clerk issued this notice, entitled "Phase I Reformat of Planned District Ordinances", announcing that on February 20, 2007 the City Council will vote to adopt a series of "proposed ordinances that would amend the format of the City’s Planned District Ordinances (PDOs)."  This is being done to facilitate the consolidation of all 19 PDOs into a "single regulatory framework", within the Land Development Code.

The Land Development Code is Chapters 10 thru 15 of the San Diego Municipal Code.

In Phase 1, they are essentially just transferring 19 PDOs from Chapter 10 and putting them into Chapter 15, where there are only two PDOs. But why did they not transfer the 2 PDOs from Chapter 15 to Chapter 10? They obviously are going to use Chapter 10 for some new purpose and eliminate Chapter 15. So you can bet that everything in Chapter 15 is for the trash can when they unveil Phase 2.

Phase 2 of this PDO "reformat" process is still a big secret. My guess is that it will be the introduction to San Diego of a fiendish planning device called "Form-Based Codes". That will mark the end of Planned Districts and the end of community input into the planning process. The Community Planning Groups will be neutered. They will have zero role in land use. That's what Sanders wants. That's what he promised the developers.

So what is the present system?

Right now whether a property is in a Planned District or not, determines the decision process the City must follow in granting a development permit. If the subject property is not located in a Planned District, and is not located in any Overlay Zone, such as the Coastal Zone, permits can be granted under Process One.

Here is the Municipal Code Section that describes how the appropriate "process" is decided:

"§ 112.0501 Overview of Decision Process Applications for permits, maps, or other matters shall be acted upon in accordance with one of the five decision processes established in this division and depicted on Diagram 112-05A. The subject matter of the development application determines the process that shall be followed for each application" [emphasis added]. Here is a link to "Diagram 112-05A" explaining it further.

Sanders wants everything handled under Process One, because it is a quick, over-the-counter permit process, where the City does not have to notify neighbors within 300 feet, deal with any Community Planning Groups or allow any hearings or appeals. Also, Process One is exempt from CEQA or any environmental mitigation requirement whatsoever. To Sanders every process other than Process One is an unwarranted restriction on a developer's absolute right to build whatever he wants.

Process One is not a planning term, it is a legal term because it is used in the San Diego Municipal Code. Here is the actual Code Section:

"§112.0502 Process One
An application for a permit, map, or other matter acted upon in accordance with Process One may be approved or denied by a staff person designated by the City Manager pursuant to Section 111.0205. A public hearing will not be held" [emphasis added].

The Section 111.0205 it refers to, describes how the City Manager (now the Mayor), may delegate that authority. Here is that particular Code Section:

"§111.0205 City Staff
(a) Authority. The City Manager may designate a staff member to make an impartial decision, without a public hearing, on a permit, map, or other matter in accordance with the decision-making procedures of the Land Development Code (i.e. Chapters 10 thru 15 of the Municipal Code).

(b) Appointment and Terms. The City Manager will determine whom to appoint and the length of time the staff member will serve as a decision maker.

(c) Powers and Duties. Designated City staff will act as the decision maker to decide permits, maps, or other matters in accordance with the decision making procedures of the Land Development Code

Read all you can about "Form-Based Codes". That is the planning tool they intend to use to transform San Diego into a rabbit-warren of densification. "Form-Based" simply means "a picture". They will draw a picture of the building they intend to build, or maybe construct a model. That is what "form" means in "form-based". It's all visual. They will tell you how beautiful it looks, how it will enhance your neighborhood etc. etc..

They refer to our old system as "prescriptive" and "Euclidian" while theirs is "proscriptive". The Madison Ave. boys have been busy. Look out.


Escobar-Eck's Sunroad letter raises a huge red flag. 02/04/07

                                                          by Pat Flannery                                        top^

Tom Story, VP of Sunroad Enterprises, wrote this letter dated November 21, 2006 to the City's Development Services Department (DSD), requesting it to lift its "Stop Work Order" of October 27, 2006. Here is the City's response, signed by his old friend Marcela Escobar-Eck, now the City's Development Services Director.

Sunroad is building that controversial 180 foot high-rise building next to Montgomery Field. Here is a December 3, 2006  U-T article about it. The picture opposite is from that article.

Sunroad's Tom Story became Dick Murphy's Chief of Staff when John Kern bailed out in January 2005. For 11 years prior to that, Story served as deputy director of the City's Planning Department. He and Escobar-Eck know each other well.

Mike Aguirre thinks they committed a Federal crime by conniving to defeat a "Stop Work Order" imposed by the City because the FAA declared the building a hazard to aviation. That is a serious charge against a City employee, with serious implications for the Mayor and dangerous liabilities for the City.

When you read the last paragraph of the Escobar-Eck letter you cannot but be struck by its lawyerly tone, the use of the word "estops" for example. That raises the question: who is the lawyer for the Development Services Department? Is it not the City Attorney? Yet Mike Aguirre's Office could hardly have lawyered this letter, if, according to Mike, it was a criminal act! Very strange goings on at the City.

The Pension Fund went off the rails once it stopped accepting legal advice from the City Attorney. I think we are very close to that situation at Development Services.

DSD is fast becoming a rogue Department. The fact that Marcela Escobar-Eck wrote that letter to Sunroad Enterprises, without clearance from the City Attorney, on a very sensitive legal matter, raises a huge red flag and is reminiscent of the pension crisis.

Sunroad's letter contained a threat of legal action with a claim for damages arising out of the "Stop Work Order". It should have gone straight to the City Attorney's Office. Yet Escobar-Eck seems not to have sought the advise of the City Attorney before replying. The City's response should have represented the best efforts of both the DSD and the City Attorney's Office, to protect the City and its tax payers. That was not the case.

On discovery of Escobar-Eck's rogue letter, Aguirre should have stormed into the Mayor's office demanding an explanation. Instead he wrote to the U.S. Attorney!

The Mayor and the City Attorney have formed a close personal friendship. That's fine, but it seems to be affecting the way the City Attorney is doing his job. He seems reluctant to place responsibility for the behavior of the Mayor's staff on the Mayor.

Did Escobar-Eck write that letter without legal advise? If not, who is giving her legal advice? An outside attorney? Who authorized that outside attorney? Did the Mayor authorize Escobar-Eck to circumvent Aguirre and get her legal advice elsewhere?

If a crime was committed, it must be laid at the door of the Mayor, he is responsible for the people under him. But most importantly, he must tell his DSD staff that the City Attorney is their attorney, whether they like it or not. If Escobar-Eck, in writing that letter, circumvented the elected City Attorney, the Mayor should discipline her. We went down that road before with the Pension Fund, let's not do it again with the DSD.

What the DSD is doing vis-à-vis developers is uncannily similar to what the union-packed Pension Board did for the unions: it granted the unions illegal "vested rights". We may never be able to roll them back. Every time DSD issues a permit it confers a "vested right" on a developer. In fact, both the DSD and the developers no longer refer to them as "permits", they call them "entitlements". They know what they are doing.

It is a reality of current political life in San Diego that the developer-friendly Mayor's Office, that controls and directs Development Services, sees the City Attorney's Office as the enemy. Unfortunately that is how we got into the pension mess.

Mr. Aguirre and his staff now have to try to "roll back" the damage already done by Escobar-Eck (and the Mayor) with regard to Sunroad. Fortunately State law trumps local law. The Department of Transportation (DOT) has jurisdiction over anything that exceeds certain obstruction standards in navigable airspace. When that happens California PUC §21659 requires any developer, in this case Sunroad, to obtain a construction permit from DOT. DOT has ruled that this has happened at Sunroad.

This "inconvenient truth" (for developers) will also shortly emerge between the Coastal Commission and Manchester on the Navy Broadway project. Manchester is required to obtain a development permit from the Coastal Commission before the City can issue any construction permit, even a demolition permit. That will probably sink his NBC ship.

Fortunately at Navy Broadway the DSD has not yet issued any permits. Not so at Sunroad. Tom Story knew his stuff. He secured his "entitlements".

The bottom line is that Mayor Sanders is doing for the developers what Judie Italiano and Ron Saathoff did for the unions. Aguirre's personal relationship with Sanders is akin to being best buddies with Juliano and Saathoff right in the middle of their orgy of pension-right giveaways.

Suing after an illegal right has been conferred is closing the door after the horse has bolted. Aguirre has to personally confront the Mayor on DSD's rogue behavior.

The Coastal Commission made its concerns known in October. 01/31/07

                                                          by Pat Flannery                                        top^

On October 25, 2006, 6 days after DSD wrote its October 19, 2006 “Finding” on Navy Broadway, that no substantial changes had taken place since 1991, in either the project or its environment, the Coastal Commission's Executive Director, Peter Douglas, wrote a letter to Admiral Herring, Commander Navy Region Southwest, asserting the very opposite. The City received copies. Here is the letter. What followed was a stunning disregard of the Coastal Commission by both the City and the Navy.

Back in 1991 the Navy had tried to avoid the Coastal Commission altogether. It asserted that the Navy Broadway site was not subject to the California Coastal Act. The Navy lost that battle and finally had to prepare and submit a Coastal Consistency Determination, that the project was consistent with the California Coastal Management Program.

The Coastal Commission’s approval of that original Coastal Consistency Determination, on May 7, 1991, opened the way for the Navy to enter into its 1992 Development Agreement with the City.

The Douglas letter of October 25, 2006 outlined a litany of substantial changes that had taken place since they approved the Navy's 1991 Consistency Determination. It told the Navy that the Coastal Commission would therefore require a Supplemental Consistency Determination and that the developer would need a Coastal Development Permit for the non-Navy portion of the project. Both the City and the Navy totally ignored the letter.

Two private citizens brought appeals before the City Council on January 9, 2007 and failed. The two appellants incorporated all the concerns the Coastal Commission had expressed in its October 25, 2006 letter. So by denying the private appeals the City Council effectively thumbed its nose at the Coastal Commission. That may be the reason its letter to Manchester on January 26, 2007 was so tough. It upped the ante on the coastal development permit to where it now amounts to nothing short of a demand for a whole new EIR! The Council may not have done Manchester any favors.

There were more than enough grounds in the October letter to require the City to do a Supplemental EIR under CEQA, which was the objective of the appeals. The Coastal Commission may be getting a little tired of San Diego putting itself above the law.

The Commission put the City and the Navy on notice in that October 25, 2006 letter, that it is very concerned about the diminishing supply of public parking along the waterfront. This parking deficit adversely affects coastal access, which is their primary mission. They warned that they may require the City to build an entirely new transportation system downtown. A waterfront shuttle system, to transport the public from "peripheral parking structures", is mentioned as one option. But who will pay for it?

The question now is: how much influence does the San Diego developer community have with the Coastal Commission? They better get their checkbooks out because they sure have ticked off the staff at least. As for the 12 Commission Members, it is a very political body, so the political game is on. A lot is at stake.

The Coastal Commission is not buying the Navy Broadway deal. 01/31/07

                                                          by Pat Flannery                                        top^

This letter from the Coastal Commission to Doug Manchester dated January 26, 2007, shows a stark contrast between how that eminent body will treat the Navy Broadway Complex and the "rubber stamp" romp it received through San Diego City's land use bureaucracy. The Bob Manis "Finding" counts for nothing with the Coastal Commission.

The letter is a must read for all of you who care about our waterfront. It will bring comfort to any of you who thought that Manchester had carried the day. He has not. Not by a long chalk. It will make Tony Young wonder if he didn't disgrace himself for nothing.

The Coastal Commission notes: "However sixteen yeas have passed since the EIS was written and significant changes in the project itself and the project environment have occurred since then". I guess Manis missed those significant changes. So did Young.

The Commission is asking for specifics on Manchester's much flaunted, but unspecified, "public attractions". Perhaps Manchester intended Starbucks to be his public attraction. Manis might have bought that, but not the Coastal Commission staff. They not only want specifics on what these "public attractions" are, they want a "breakdown of the square footages of each of the different uses contained in public attractions."

They go on: "an overall analysis of the project's consistency with the most recently certified Centre City Precise Plan standards regarding view corridors, landscaping, setbacks and stepbacks is required." Unlike at DSD and CCDC, the plans certified by the Coastal Commission actually mean something, for example it wants to take into account the addition of the Aircraft Carrier Midway - something else Manis missed.

On traffic: "An updated traffic and parking study assessing the proposed project and current and reasonably foreseeable future projects in the area is required." DSD and CCDC thought they could spare Manchester the bother of traffic and parking mitigation. They approved his project even though he was 1,000 spaces shy of the City's own parking requirements! The Coastal Commission staff are not buying that either.

"[Coastal Commission] Staff feels strongly that the intensity of development being contemplated in the subject proposal, and its potential impact on the public's ability to access this bayfront area, cannot be supported unless alternative forms of transit and non-automobile circulation are implemented in conjunction with the project." Obviously the Coastal Commission is thinking of a bigger public - all Californians.

They have questions about the use of condo-hotel and office-condo units. Those questions alone could derail the project. They will almost certainly not allow the condo concept to be used in any way whatsoever, because it would set a statewide precedent. And Manchester is relying for his financing on the income from condo sales.

But this is the part of the letter I love the most: "The "Geotechnical and Geologic Fault Investigation" dated July 12, 20O6, submitted with the application is missing Figures 8, 9, and 10 of the Terra Physics Report contained in Appendix D; please provide this information". Busted! You don't get away with tearing out vital pages from a document in your submission to the Coastal Commission! What was Manchester thinking?

Between you me and the gate post, the Coastal Commission staff had a little heads up on that piece of skullduggery, not that they wouldn't have discovered it on their own. Manchester is so spoiled from dealing with the DSD. But his $50,000 "subscription" to Sanders' favorite charity, the Prop C campaign, counts for nothing with the good folks at the California Coastal Commission. He is not used to this kind of letter. 

When the Commission reviews the seismic data, the project is dead. There is no way any developer can achieve the density Manchester needs to make a present of $160 million to the Navy for their Headquarters Building and meet the mitigation requirements that will apply once the true seismic facts of this site are confronted.

One simply cannot put the amount of square footage proposed on a site that has both a fault and is subject to liquefaction. One of these, on its own, maybe. But both! No way.

Sorry "Pappa" Doug, that space is taken - apparently a Higher Authority has reserved it for a park. Kinda makes a believer out of one, doesn't it?


Here is the smoking gun - DSD meant to neuter Prop D today.  01/30/07

                                                          by Pat Flannery                                        top^

6:00 P.M. Here is documentary proof that DSD (read developers) meant to gut Prop D. today. The amazing thing is that we were able to stop them.

In addition to passing the proposed Ordinance amending Section 126.0708 (b) of the Municipal Code, DSD had to write a Supplement to the original Environmental Impact Report done back in 1996 and have it certified by the City Council. This document was DELIBERATELY not attached to the Report to The City Council, 07-021, but would (presumably) have been given separately to individual City Councilors. Maybe not.

However, City Law requires DSD to file a copy with the City Clerk. So despite their best efforts to hide it from us, the public, here it is: the "Supplement to Environmental Impact Report No. 96-0333", positive proof that the writer, our old friend of Navy Broadway infamy, Robert Manis, knew that the whole idea was to circumvent Prop D.

Especially read the sections marked on pages 2 and 4. Jim Waring is now telling everybody that he never intended to undermine or circumvent Prop D. Sorry Jim, your staff person Bob Manis disproves that. He makes it very clear in the EIR Supplemental that today's proposed action would have merely required one of his infamous ministerial "findings" to allow buildings of unlimited height all along our coast.

The only question in my mind now is who was in on this and who was not. It is interesting that Scott Peters was the lone vote against continuing the Item. That would make him the prime suspect for being the "brains". There would have been a lot of future developer political subscriptions on the line for a scheme of such magnitude and Peters has both the brains and the ruthlessness to be the hidden godfather.

I doubt  that Faulconer even knew what was going on. If I were him I would be having a serious chat with Bob Manis and possibly Deputy City Attorney, Shannon Thomas. She seemed to know exactly how to craft the Code Amendment so that it would achieve the DSD objective: Coastal Commission approval. She probably had help. Peters is a very experienced environmental lawyer and is particularly knowledgeable on how such law impacts developers. If it had worked, this would have been his finest hour.

They had learned last time that the Coastal Commission needed a provision for denying a developer's application. Hence their 126.0708 (b) "(A) Feasible alternatives to the requested incentive and the effect of such alternatives on coastal resources have been considered" and "(B) Granting the incentive or alternative will not adversely affect coastal resources." All Manis would have to do is issue his infamous "findings", that these two conditions had been met and the money would flow. Pretty neat.

They almost cost Faulconer his District 2 seat today. All Kevin talked about during his election campaign was the 30 foot height limit. What would have happened if the DSD plan had succeeded today? Nobody would believe Faulconer when he tried to protest his innocence. Maybe today was his first baptism in real politics. Peters can run rings around him. Kevin will need more than Sanders protection, if he is to survive.

It may even be that Waring and Sanders did not fully understand what was meant to happen today. It may be that this was entirely a Scott Peters operation. He has been around a lot longer than any of them. After all, Sanders and Waring are both newbies, just like their friend Faulconer. In any case our 30 foot height limit had a very narrow escape today. Let's hope we can bring everything out in the open before February 27th.

"Not so fast" says Council Member Donna Frye! 01/30/07

                                                          by Pat Flannery                                        top^

2:20 P.M
. - on a Motion by Donna Frye the City Council voted 6-1, with Scott Peters opposed and Tony Young absent, to continue ITEM 331 to February 27, 2007. Frye said she had several unanswered questions and needed time to put them in writing. DSD staff (read developers) of course were opposed. But it is a major victory for those of us who want to protect the precious 30 foot height limit.

Once again Council Member Donna Frye was not found wanting. She has given you, the ordinary citizens of San Diego, an opportunity to have your voices heard. Please study this issue and decide for yourself. You have until February 27, 2007. If you would only participate you CAN make a difference. Maybe there is still hope for us. Maybe this is a turning point. Maybe today we just had enough. Maybe. Anyway, thanks Donna.

Full background on how "Affordable Housing" will neuter Prop D.  01/30/07


                                                        by Pat Flannery                                        top^

For those of you who would like to fully understand the Affordable Housing Density Bonus issue that is before the City Council today, here for the record is some information and supporting documentation.

The best place to start is with this extract from the City Attorney's MOL: "While generally, municipal initiatives and regulations are preempted by State Density Bonus Law, the height limit set forth in Proposition D has previously been certified by the Coastal Commission as part of the City’s land use plan. The City does not have any authority to grant a permit that is not in conformance with that certified land use plan."

Therefore to circumvent Prop D all that was needed was a change to the City's certified plan as it relates to the Coastal Zone. That is done by amending the Municipal Code. So here it is:

126.0708 (b) Findings for Coastal Development Permit Approval.

"(2) A deviation from the Environmentally Sensitive Lands Regulations when requested as an incentive for providing affordable housing pursuant to the Affordable Housing Density Bonus Regulations in Chapter 14, Article 3, Division 7, may be approved or conditionally approved only if the decision maker makes the following supplemental findings in addition to the findings in Section 126.0708(a)(1) through (4):

(A) Feasible alternatives to the requested incentive and the effect of such alternatives on coastal resources have been considered;

(B) Granting the incentive or alternative will not adversely affect coastal resources.

You can rest assured that these "supplemental findings" will be as forthcoming, as routine and as "ministerial" as the infamous Manis CEQA finding on Navy Broadway (after the usual donation to the Mayor's favorite charity of course). That is why DSD has stipulated that all these "findings" will be done "administratively" - for cost efficiency you understand. We now have an "efficient" Mayor who is "cleaning up" (on) the city.

Again, just so you understand that DSD (read developers) know exactly what they are doing: they tried this before with the Coastal Commission but got shot down. They learned however, exactly what the Coastal Commission would or would not approve. This new amendment to Section 126.0708 is it. Everything else is just a diversion.

"Low or Moderate income" is defined in the California Health & Safety Code, Section 50093. I have downloaded just that section, but you can go to the State web site and read the whole thing here. Essentially "low or moderate income" is defined as 120% of an area's median income. But the State and the City may agree to "permit the agency to use higher income limitations in designated geographic areas of the state, upon a determination that 120 percent of the median income in the particular geographic area is too low to qualify a substantial number of persons and families of low or moderate income who can afford rental or home purchase" under the Law.

Not only is the definition of "low or moderate income" flexible, but the developers will be able to include whatever percentage of "low or moderate income" they will need to qualify for whatever concession they are after e.g. unlimited building height. And it will all be done "administratively". They have thought of everything. You and I, or even the City Council, will have nothing to say about it. San Diego truly is the "Developers Finest City"! Even the City Council is irrelevant. With Sanders they achieved a clean sweep.

I (above) extracted the most important section, the one that busts the Coastal Zone 30 foot height limit, Section 126.0708 (b) (2) (A) and (B), but you may read the entire draft (strikeout) of the Code amendments the City Council will presumably enact today. Presumably, because they always do what they are told by either the developers or the unions. No doubt today will be no different.

Also, here is a summary of the changes made to the State Density Bonus Law by SB 1818, adopted January 1, 2005 and by SB 435 adopted June 21, 2005. This document was initially attached to the Report to The City Council, 07-021 when posted on the City web site last week, but was mysteriously withdrawn yesterday! Go figure.

The San Diego developers had a large hand in SB 1818. Now it is pay-off time.

Here is the actual SB 1818 Bill and here is a background written by the California Chapter of the American Planning Association. It may be too late to prevent it, but at least you now know how what happened to your San Diego coastline, happened. It happened because the only ones paying attention were the developers.


After tomorrow, the 30 foot Coastal Height Limit is history. 01/29/07

                                                          by Pat Flannery                                        top^

ITEM-331 (Amendments Related to Affordable Housing Density Bonus, page 34) on tomorrow's City Council Adoption Agenda, is a sneak attack on Prop D, the 30 foot coastal height limit law.

The City Attorney's Memorandum of Law (MOL), dated September 8, 2006, said that "the height limit set forth in Proposition D has previously been certified by the Coastal Commission as part of the City’s land use plan. The City does not have any authority to grant a permit that is not in conformance with that certified land use plan".

Far from warning them (DSD) off, the City Attorney's MOL told them what needed to be done. Betsy McCullough, the recipient of the Memo, and DSD staff, got busy. I doubt that is what the City Attorney intended.

Their Report to The City Council, 07-021, dated January 24, 2007, states in the last paragraph of page 4: "The ordinance approving the amendments to these regulations will be crafted to allow implementation in those areas of the city outside the Coastal Overlay Zone 30 days after the second reading by the City Council. Implementation in areas within the Coastal Overlay Zone will become effective upon the unconditional certification of the regulations by the California Coastal Commission" [emphasis added].

This means that DSD is putting us on notice that they intend to apply to the Coastal Commission for "
unconditional certification" of their new height regulations, which will effectively neuter Prop D.

Proposition D became effective on December 7, 1972. It imposed a 30 foot building height limit w
ithin the City of San Diego's coastal zone: "The Coastal Zone was defined in Proposition D as the area from the US-Mexico border to the northern border of the City of San Diego, and from the Pacific Ocean to Interstate 5."

If the City Council adopts this Ordinance tomorrow, the developers will be able to circumvent the 30 foot height limitation anywhere, so long as they include a percentage of moderate income units. Note the requirement is for "moderate", not "low" income units. That will be easy for the developers to meet and well worth it.

Developers will gladly swap an "inclusionary" housing element for unlimited building height. This single Ordinance, if passed, will change the face of San Diego forever. If passed, it will demonstrate that the people of this city are no longer represented at City Council. The developers (and the unions) ARE the Government.

Don't imagine for one moment that all the City Council members are not fully aware of what this Ordinance will do to our coastal zone. Here is what the actual Docket for tomorrow says:

"The proposed amendments to the Land Development Code would apply to the Coastal Zone, therefore the City Council’s decision requires amending the City’s Local Coastal Program. As a result, the final decision on the amendments to the Land Development Code and associated Local Coastal Program amendments will be with the California Coastal Commission. The City of San Diego must submit the amendments to the Land Development Code as an amendment for certification to the Coastal Commission. The amendment is not effective in the Coastal Zone until the Coastal Commission unconditionally certifies the amendment."
[emphasis added].

What could be clearer than that? That stuff didn't just write itself. The clear intent of this City, through its City Council, is to abandon the 30 foot height limit all across the city, including the coastal zone.

The only thing that now stands between the final demise of our 30 foot coastal height limit is a Coastal Commission hearing sometime later this year. The developers will be there en masse with their highly paid propagandists. They will tell the world that they did it all for the poor folks. "Comical" Jim Madaffer will be priceless tomorrow, advocating for the poor folks. It would be hilarious - if it wasn't so tragic.

He will tell us how our socially-conscious developers, the very engine of our County's economy, have fought the "enviro-nazis" (to quote Doug Manchester last week) and finally busted that loathsome 30 foot height limit, imposed by narrow-minded, tree-hugging obstructionists, who just don't get what real progress means. His rich builder friends will now be glad to include a number (the absolute minimum, of course) of "moderate" income units in their high priced skyscraper condos, so they can qualify for their well-deserved "height bonus".

Ah! the genius of San Diego business. It turns obstacles into opportunities. And what an opportunity low and moderate income housing has turned out to be! That wonderful "Density Bonus" State Law. Now whoever sponsored that? San Diego developers no doubt. What a small price to pay for vertical freedom, They'll figure out later how to get around actually building these pesky units - plenty more genius where this came from.

As a final gesture of defiance to us "enviro-nazis" (yes, you and I), the DSD staff wrote:

"If you wish to be noticed of the Coastal Commission hearing on this issue, you must submit a request in writing to the Development Services Department, Attention: Dan Joyce, Senior Planner, 1222 First Avenue, MS 501, San Diego, CA 92101 before the close of the City Council public hearing. If you wish to challenge the City’s action on the above proceedings in court, you may be limited to addressing only those issues you or someone else have raised at the public hearing described in this notice, or written in correspondence to the City at or before the public hearing."

It is more painful every day to witness the steady destruction of everything that made this city the place of my dreams. I suppose I was blessed to be able to enjoy the last 30 years before the deluge. My children and grandchildren will not be so lucky.


 01/26/07 - An alternative to Manchester and the Navy - John Moores.
Good or bad?

                                                          by Pat Flannery                                        top^

Today in the U-T Steve Peace and Ron Roberts laid out the grand vision of John Moores and his friends in the Labor Council for the future heart and soul of San Diego. Surprised I said John Moores and the Labor Council? Don't be. Moores' ace-in-the-hole against his arch rival Doug Manchester for downtown hegemony, is Jerry Butkiewicz.

Manchester will never do a deal with the unions. He hates them. He has made that clear over many years and over many developer deals. Moores on the other hand understands the power Butkiewicz and the unions have over the City Council - the unions finance most of their campaigns. We all know you cannot get elected dog-catcher in this town without either the unions or the developers. When you have both you can be king.

Butkiewicz is grooming Lorena Gonzales to win back District 2 from Kevin Faulconer in 2010. She knows a lot about coastal issues. Having lost to Faulconer in the 2006 runoff, she went to work for Butkiewicz at the Labor Council.

No doubt she and veteran politician/campaigner Steve Peace, now a senior VP for Moores, are the political engineers in this coastal/airport redevelopment plan.

Today's op-ed piece is the opening (public) salvo in the battle of the developer giants, Doug Manchester and John Moores. Whichever one wins gets to remake San Diego for future generations. Steve and Ron are right, this is a once in a century opportunity.

Their initial line of attack is to call Manchester's Navy Broadway project "piecemeal development". That's a good first jab. Then they present the grandest re-development plan for the heart of San Diego anybody has seen since John Nolan.

A clue to their overall intent is this quote: "the linchpin is Lindbergh Field's master plan.The San Diego County Airport Authority must act immediately to move terminal operations to the Pacific Highway side of the airport".

That would constitute the first stage in their redevelopment plan for the area running from the old Police Station all the way to dog's beach. Read my piece "The Knights and peasants of San Diego Today on November 16, 2006?

Lindbergh Field is indeed the linchpin. It would be the centerpiece of a giant joint-authority project.
Today's U-T piece is the first I had heard of their plan to close down Harbor Drive. It may  have been considered too radical to mention earlier, or maybe their drawing boards have been busy in the meantime. They would close Harbor Drive in order to create an integrated esplanade and waterway running all the way from downtown to the west end of what would become Lindberg's "south" runway. The new waterway would run between Harbor Island and the airport and continue along the east side of NTC.

This would be integrated with "
a mega-terminal that showcases the waterfront. This could even be designed as a joint-use facility with the Convention Center". Presumably people movement would be by a distinctive San Diego style water bus. Yes, that would be "cool". It would certainly provide San Diego with a "signature" experience. I'm not sure how the folks in Point Loma would like having to take a water taxi to get to downtown. But that's the great thing about democratic politics, we can all get into the fight.

I know John Moores comes from Huston and that everything is big in Texas, but man, this is big! This shows his Texas-size you-know-whats. "Pappa" Doug would be eclipsed by "Grandpappa" Moores. His plan is the father and mother of all San Diego visionary plans. It makes Navy Broadway positively "piecemeal".

But both of these San Diego Princes have mother nature to reckon with. They cannot get around the fact that there are seismic fault lines running all over the place. Lorena as an environmental attorney knows very well how much "fill" is involved. She knows that faults and "fill" liquefaction make a deadly combination. I hope she has so advised Moores.

Personally, so long as developers stay off our tidelands (they are for our grandkids) and that they check for fault lines, I don't care what they build behind the high-tide line .They can build a dozen Sears Towers for all I care. That's why I don't like Manchester. Most all of what he has built is on tidelands and he has flatly refused to check for fault lines on what is clearly "fill" land at NBC. That is criminal in my book. Lives are at stake. But the NBC battle is not over yet. I believe he will be forced to do it and it will kill his project. Maybe it's the scent of that failure Moores & Co. are picking up.

If Moores and his "project-labor" relationship with the unions is the alternative, let's deal with them. Moores and the unions can hardly be worse than what Manchester and the Navy. Look what they tried to do to us. Nothing is perfect in life, but we can at least aspire to better than Doug and the Navy's commercial monstrosity. Peace and Roberts say: "the best results come from our elected and appointed leaders working with developers, landowners and community groups". That's a nice change from DSD's Waring and Escobar-Eck treating "community groups" as the enemy. We'll see.

(One little amusing correction for Steve and Ron: Miramar is a Marine Corps not a Navy base. The Navy fly boys now have a new address: Fallon, Nevada. Too funny!)



Does the City have a "special relationship" with the Bank of America? 01/25/07


                                                        by Pat Flannery                                        top^

John Torell, the former City Auditor & Comptroller, was "re-engineered" by Sanders and his staff right back to Santa Barbara, where he came from less than two years ago. His ouster underlines the successful power-grab the Sanders administration has become.

On his resignation just before Christmas, John offered this to Alison St. John of KPBS, regarding the current culture at City Hall "The bottom line: this survey they just completed where they asked people if they felt free to speak up and to be open and all, and the results of that didn't seem to be too good!" There is no doubt John felt marginalized. In fact he was doomed from the very moment Sanders took over.

On December 17, 2005, shortly after Sanders was elected, I wrote a blog about John's knowledge or lack thereof of the very suspicious $152 million City bond deal with the Bank of America on October 24, 2005. John was as baffled as I was. I found him very forthcoming and as anxious as I was to get to the bottom of an apparent "special relationship" between the City and the Bank of America. We both wondered if a massive misrepresentation had not been made to the City Council by (since resigned) City staffer Dennis Kahlie. What Kahlie presented to the City Council made no sense.

Whatever happened with John then, it was obvious to me that somebody put the muzzle on him. He just clammed up totally.
It was right at the time of the 2005 mayoral election. Sanders and his people were closing in on City Hall.  It was then I became aware that a dark cloud of secrecy was descending on City Hall. I wondered whether John would survive. He didn't. The surprise was that he lasted as long as he did.

The questions I raised back in October 2005 are looming even larger now. Hundreds of millions of dollars of refinancing deals are in the works, by the very people who marginalized and eased out a City Auditor because he showed an interest in doing his job. John was without doubt an outstanding City Auditor, something Sanders and his staff obviously would prefer to do without.

In order to understand what happened in October 2005 between the City and the Bank of America please read the three successive blogs I wrote at that time. I researched it thoroughly and talked at length to the various players, including City Auditor John Torell.

On October 24, 2005 City staffer Dennis Kahlie represented to the City Council that the Bank of America had offered the City a loan of $152 million at 2.624% interest rate, without any upfront deductions. The City Council bought it. Watch the streaming video for October 24, 2005. Go to Item 200 approximately 1 hour 10 minutes in. Madaffer moved the motion and acted as salesman for the Bank of America.

Now, on January 16, 2007, the City Council has approved going ahead with the refinancing of the original $169 million 2002 ballpark bond, with a $172 million bond from the Bank of America. Read the staff proposal to the City Council here on pages 25 to 27 and view the streaming video. It is Item 332 about 7 hours 54 minutes in.

According to Goldstone this was a "negotiated" deal as opposed to a "competitive" deal. City staff use the word "negotiated" when no RFP is issued. It turns out that whatever deal was "negotiated" with the Bank of America was done in 2004, under Murphy!

CFO Jay Goldstone and his staff described "Banc" of America LLC in their report as the "structuring agent" for Bank of America, which of course is just a nice word for a loan broker. "Banc" of America LLC is a strange and troubled entity that worries me. If you haven't done so already, read about it in my 2005 blogs beginning here.

Goldstone referred to an interest rate called the "true interest cost" (TIC). TIC is rather like the APR on your home loan in that it is supposed to take into account the closing costs. But as with APR not all closing costs are included in the calculation. This can be very misleading. We do not know for example whether "Banc" of America received a brokerage fee or whether brokerage fees are even considered an issuing cost.

Goldstone's staff report said that the original ballpark bond had a TIC of 8.53% and the refinance bond would have one of 4.78%. But those are based upon the loans running full term - in the case of the new BofA loan, 25 years. TIC thus becomes vastly higher when a loan is paid off early, because the total cost of issuance has to be absorbed over a shorter period - in the case of the original bond that will now be under 5 years.

We know that the City realized only $130 million cash from that $169 million 2002 bond. The rest was therefore issuing costs. No wonder Merrill Lynch would not negotiate. They wanted that loan paid off early so they could reap a cash bonanza. Sanders obliged.

Moving the staff proposal (again), Jim Madaffer said "this is how to do things" and that this was "one heck of a good deal". Yes Jim, it probably was "one heck of a good deal" for somebody - but not for the City of San Diego or its tax payers. I wonder who?

The bottom line here is that there is something very fishy going on between this City and the Bank of America. A sweetheart deal was apparently struck back in 2004 under Murphy. Sanders is honoring it because he is merely the present spokesman for the same cadre of faceless downtown business elite that continue to run this city. In addition to grabbing City land like Montgomery Field, they also want to raid the City Treasury. Was that why Torell was forced out? Because he is an honest man?

Sanders was the political creation of Golding and McGrory. They pulled him out of obscurity and made him Police Chief, simply because they knew he would do what he was told, a character trait highly valued by the secretive "business" bosses.

Jerry is essentially a performer, but a very good one. So far he has fooled the people of San Diego. They have bought his act. The trouble is that bosses such as his always want more. John Moores was not content with the gift of a ballpark by Murphy, he wanted more and more and more, more than Murphy could finally dare. Who knows what Murphy had already given to his "friends" and what more they expected of him. His former employer, the Bank of America, may have been one of those "friends".

It will be the same with Sanders, because, like Murphy, he is not his own man. Like Murphy, Sanders is owned lock stock and barrel by a cadre of ruthless business interests. It will be interesting to see if Jerry runs for a second term. Dick Murphy should have stuck to his instincts in 2003, when he announced he would not run for a second term, even though he loved being Mayor. But they got him back on the wagon again.

If any of you can shed any light on this "special" relationship between the City and the Bank of America, I would love to hear from you. I personally believe that much is being hidden from us and to paraphrase John Torell: "that doesn't seem to be too good".


The truth behind Sunroad's development at Montgomery Field. 01/18//07


                                                        by Pat Flannery                                        top^

Bob Kittle is mystified at "Sunroad's defiance of state and federal regulators" in his editorial today. He says: "We are normally sympathetic to developers in their struggles with bureaucracies, but this is ridiculous". It is far from ridiculous from Jim Waring's point of view. Just look at the satellite picture below.

Waring wants the FAA to withdraw Montgomery Field's operator's license! It's as simple as that. The reason is obvious - land.

Now look at that picture from Waring's point of view. All that developable land being wasted on an airport. Remember, Jim's DSD is in business - with the developers. They do the big development deals and DSD rakes in the big fees. Have you checked out DSD's parking lot lately? Notice all the BMWs and Lexus' not to mention the Mercedes'?

That piece of ground you see before you should be good for many more millions in developer fees and mega contributions to up and coming politicians like Tony Young. Did you know Tony was on the Airport Board? Did you know he is on Jim Waring's Land Use Committee? That's how our city is run. And all this time I thought Bob Kittle knew.


The Jewel of San Diego County, perhaps of the State. 01/16/07


                                                        by Pat Flannery                                        top^

The beautiful green valley in the center of the photograph below is Rancho Guejito, the last intact Spanish Land Grant in all of California. Read the history of the Californios who owned these rancheros before the Anglos came. These pristine California valleys were as near to heaven as it is possible to get on earth. This the last one.


Read this short piece by the Conservation Biology Institute (CBI), describing why Rancho Guejito is "The Jewel of San Diego County". It is actually the jewel of California.

Preserving this jewel should not be left to the much maligned "Environmentalists", this is a matter for all of us. I am glad to see that the U-T has taken up the fight. Hopefully there is a growing awareness that Southern California is a special place and can only accommodate so many people. Sooner or later we have to say enough is enough.

It is already a very different place from what I fell in love with over 30 years ago. I can't imagine what those who came here in the 19th century would think of today's choked freeways and modern "development". So much of what set this place apart has already been lost. If the present trend continues San Diego County will become just another desolation of concrete and over-crowding, all in the name of "development".

We have to redefine "development" before it is too late. Human values must be reintroduced into the concept. Developers have stolen our best words to sell their soul-destroying high-density "projects". Their use of the word "visionary" for example, as in their North Embarcadero "Visionary" Plan, is "visionary" only in the scale of its greed.

If capitalism is to serve mankind, like any ideology it must be carefully managed and restrained. Right now, in its "developer" mode, it is an unrestrained monster. The best way to fight this growing developer greed is to get involved with your local Community Planning Group. These Groups are official organs of city government and can be decisive - if you participate! They are the City's template for development in your area.

You owe it to your children and grandchildren to get involved in YOUR Community Plan. Right now most are dominated by industry hacks masquerading as community people.


A different take on Jim Waring. 01/11/07

                                                          by Pat Flannery                                        top^

I agree with Scott Lewis of The Voice in his opinion piece today, that Jim Waring is "one of the most interesting people at City Hall", but not in the way Scott Lewis means it.

Of course it all depends on how you perceive Mayor Sanders goals of "achieving regulatory efficiency", "expediting development" and "reducing the permit processing period". Very laudable goals if you happen to be a developer who contributed heavily to Mayor Sanders election. I'm not sure how it will improve the quality of life in the neighborhoods or protect the environment.

Therefore unlike Scott Lewis I do not support Waring's goal of making it all "over-the-counter" for Sanders' developer backers. I am all for efficiency and expediting the permit process. As a small businessman myself I am all for reducing business costs, but what Waring is attempting to do has nothing to do with business or government efficiency or the reduction of costs. It has to do with avoiding CEQA compliance. His mission for Sanders and his developer backers is to make the whole development process "ministerial" thus avoiding public scrutiny. But they have forgotten one thing: State Law.

Section 21151(c) of the Public Resources Code says:

"If a nonelected decision-making body of a local lead agency certifies an environmental impact report, approves a negative declaration or mitigated negative declaration, or determines that a project is not subject to this division, that certification, approval, or determination may be appealed to the agency’s elected decisionmaking body, if any."

Lewis quotes Waring: "It should only matter what the community has clearly declared that it wants to allow built on a parcel of land". I fully agree with that sentence except the word "only" - Waring is attempting to ignore or minimize CEQA.

Again Lewis quotes Waring: "only the richest developers with the best lawyers and lobbyists have the ability to get their projects through City Hall the way they wanted them". Yes, lobbying is a bonanza for the "best lawyers and lobbyists", but worse, it tends to corrupt city officials. That is bad. Why, for example did Tony Young vote with the developers on Tuesday? He promised one of the NBC appellants, the night before, that he would vote to uphold the appeal. Why did he change his mind?

The reason it takes "the best lawyers and lobbyists" to get a project approved "the way they wanted them" is because Waring and his DSD staff, acting as a "nonelected decision-making body", routinely certify environmental impact reports, approve negative impact declarations and determine that a project is not subject to CEQA, with total disregard for what constitutes a significant environmental impact.

It is these DSD actions that result in so many citizen appeals before the City Council. Waring may find them insufferably tedious but he is their direct cause. So, Jim and Scott, you are both going to see more, not less, tedious appeals before the City Council if Jim and his DSD staff persist in their "ministerial" approach to CEQA.

This "ministerial" approach has risks for the developers too. For example, Waring assured Manchester that the Manis CEQA finding was not appealable. Not only was he wrong about that, he is wrong now in telling Manchester that he does not have to do an adequate seismic fault investigation before starting construction of the Navy headquarters building. If there really is a seismic fault running through that site, and it is not discovered until after the Navy has its HQ building, Manchester will have been had - he will be unable to build the private rentable space. Has either one of them thought about that?

I am delighted that Waring is committed to completing the remaining Community Plans as quickly as possible, but that is not his problem. His problem is that he is trying to sidestep CEQA. His friends can have all the projects they like, over the counter, in a matter of hours, if they will just obey CEQA law. But every time they ignore it, or refuse to do mitigation, they will be appealed. If they stop to think about it, it is better business to just obey the law. But that is not Jim's way. That is why he is so "interesting".

Citizens will be watching to make sure the kind of last minute "lobbying" that obviously took place late on Monday night or Tuesday morning will not happen again - at least not without a Cheetah's style investigation. As one activist said to me recently, the only difference between Manchester's $50,000 "donation" and Cheetah's bribes, was that Charles Lewis, Ralph Inzunza and Michael Zuchett were being wiretapped by the FBI.


Is Tony Young corrupt? 01/10/07

                                                          by Pat Flannery                                        top^

San Diegans as a whole got what they deserved yesterday because a majority of them voted for Sanders at the last election. In doing so they knowingly voted for wall-to-wall development. That is exactly what they are now getting - no more parks or open spaces..

But the good people of District 4 did not deserve what their City Councilman, Tony Young, did to them yesterday. He disgraced them. He should forever hang his head in shame. He withheld the one vote that would have sent Navy Broadway back to BRAC so the people, not Jerry Sanders and his Navy CEO, could decide what to do with it. The DSD staff needed five votes to uphold their "finding", therefore four votes would have upheld the citizen appeal.

Donna Frye was her usual passionate self on behalf of the ordinary people of San Diego, against the greed machine that elected Sanders. In addition to voting to uphold the citizens' appeals, she resisted Sanders attempt to add credibility to the farce that is now his Audit Committee - it is to be chaired by his lapdog, Kevin Faulconer. Sanders tried to make Frye Faulconer's Vice-Chair to make it look like this was a real audit committee. That dubious honor now goes to, you guessed it, the "Honorable" Tony Young.

If you still have doubts about who is running this city, read Mel Shapiro's research into Kevin Faulconer's political contributors - the Republican Party and the Lincoln Club - then tell me Faulconer is not a lapdog. Maybe we'll see Tony Young's name on the Lincoln Club's contribution list next time. Maybe he will run as a Republican.

But there are Honorable Council Members. In addition to the ever-honorable Donna Frye, Toni Atkins and Ben Hueso displayed a high degree of moral integrity yesterday by voting to uphold the citizens' appeals.

Atkins, with close personal ties to CCDC (through her friend Jennifer LaSar who chairs its board) did not flinch from following the dictates of her conscience yesterday. In fact LaSar, to her everlasting credit, has been on the side of the people all along with regard to Navy Broadway. Toni must be as shocked and dismayed as the rest of us at Young's sneaky vote. He and Madaffer rudely absented themselves during most of the discussion. They showed total disdain for the opinions of the public. Then when the time came to vote Young just sat there and silently pressed the voting button, exactly as his developer masters had instructed him. Tony is moving on up.

Ben Hueso may have had a weather eye on his (anticipated) appointment to the Coastal Commission. His vote yesterday may be a clue to how he will vote on the hotel-condo issue when it comes before the Coastal Commission. Manchester still has to clear that hurdle. Let's hope Hueso remains honorable and votes against all hotel-condos anywhere on the California coastline. We don't want our coastline becoming the private privilege of those who can afford waterfront condos.

Hueso must have been as shocked at Young's vote as the rest of us. I am not (quite) Machiavellian enough to think that they had it all worked out between them, but in politics anything is possible. Land use appeals have a habit of failing by one mysterious vote. The consistency of that outcome shows the stranglehold developers have on San Diego. They seem to be able to purchase that one crucial vote every time.

So now what? Well, the seismic fault is still there. It will have to be dealt with at the building permit stage. There is no avoiding it. God may yet have the last word. If He didn't want that site built upon, it will surely come tumbling down by a combination of seismic faults and liquefiable "fill". Together they are a deadly mix. Ominously, both exist on this particular site. It is not a normal "fault' site and therefore a very dangerous one.

We know it is subject to liquefaction because it consists of "fill" dredged from the bay. Ironically that is the very reason given by the U.S. District Court for its 1991 finding that it is no longer "tidelands" and therefore no longer under public ownership.

When (not if) the fault line is officially acknowledged, it will render the site uneconomical for development. The setback (for all buildings from a fault line) is 50 feet. But when a site is also subject to liquefaction the setback is four times greater. Manchester will not be able to achieve anything like the density he needs to make the project economical.

I'm not a big advocate of law suits (we should have won this battle at the City Council yesterday; that is why Young's vote was so tragic) however, a citizen group has in fact filed against the Navy in Federal Court. Somebody may also file against the City in Superior Court. The most likely complaint would be that the City did not even consider the high likelihood of a terrorist attack. That worries a lot of people.

Tony Young in particular should be made to pay a high political price for his toadyism. What he did yesterday was not only contrary to the interests of his own District 4 constituents but against all the people of San Diego. George Stevens would have been horrified. Unlike George Stevens, Young is no man of the people.

He did not even speak yesterday. He made no attempt whatsoever to explain his vote. He should be called upon to explain himself. I am beginning to wonder about his involvement in the Cheetahs bribery scandal. After all he was the late Charles Lewis' chief of staff at the time and Lewis was charged with accepting bribes. Is Young corrupt? Was he involved in accepting bribes? It is a fair question. After yesterday, I for one will have a very different view of Tony Young and will watch him carefully.

I will also continue to observe whether Manchester and the Navy will be allowed (by DSD) to cut corners or get away with false mitigation. Lives are at stake now that construction will occur on this site. Despite being "fill" from the dredging of the bay, it is still tideland, with the added handicap of a known seismic fault running right through it.

Methinks God meant it to be a park. He will no doubt have the last word. Young's ignominious vote may yet be in vain. He may have to explain it to more than the people of San Diego, he may have to explain it to - a Higher Authority.


Here is the full Navy/Manchester Lease. Is it fair? 01/05/07

                                                          by Pat Flannery                                        top^

Finally, here is the full Navy Broadway Lease. The Navy hand delivered two copies to the City late this evening, Friday January 5, 2006, one to the Mayor's office and one to the City Attorney's office.

The City Attorney's office then kindly offered me a hard copy which I immediately scanned and uploaded to my web site so it would be available to all of you over the weekend. The City Attorney's office did not want to play favorites with either of the two appellants and considered me a neutral party. (I doubt Jim Waring would agree.) But the important thing is that you all get to read it before Tuesday.

Perhaps the most interesting part will be trying to figure out what exactly has been redacted - what it is they are hiding. I believe it is that the Navy has made itself an equity partner with Manchester. I believe it has granted itself an income that will grow over the term of the 99 year lease. That means it is now a private developer just like Manchester or any other. Indeed Manchester may be little more than a leasing agent for the Navy.

They have hidden the seismic fault report. Why? That document has been even more heavily redacted - the public has not been given a copy! Appellant Katheryn Rhodes was allowed a brief look at it - somewhat like viewing a holy relic. She immediately noticed that crucial pages were missing. So far she has not received an answer as to why.

Is this what we can expect when the Navy becomes a private developer? It is totally inappropriate that our military, in this case the Navy, can use the powers we give it to defend us, in its capacity as a private developer. That is the real scandal of San Diego's Navy Broadway. I'm not sure the public fully understand what is happening.

Land use issues are legitimate political battles to be fought in the rough and tumble of normal democracy. This is not a normal fight. The Navy is not a normal opponent.

And on top of all this we have no idea who the shareholders of the leasing entity are. Manchester Pacific Gateway LLC, a Delaware Corporation, may have Manchester's name on it, but that only means that he or Manchester Financial Group Inc is its managing partner. The Delaware Corporate veil is impossible to penetrate.

Therefore the City Council has no idea who they are dealing with here! Admiral Hering or Mayor Sanders could be shareholders in this Manchester Pacific Gateway LLC for all anybody knows. Can any member of the City Council tell me they know? Of course not. Does that bother them? We will find out on Tuesday.

Here are the various Lease Exhibits:

Exhibit A - Legal Description of Land and Existing Encumbrances

Exhibit A-l - Buildings I and I l0 Land

Exhibit A-2 - GAF Construction Site

Exhibit A-3 - Buildings 8 and l2 Land

Exhibit B-GAF Site

Exhibit C - GAF Plans and Specifications (GMP Bid Documents)

Exhibit C-l - Form of Design/Build Contract

Exhibit C-2 - Form of Construction Consultant Contract

Exhibit C-3 - Work Letter

Exhibit D - Finding of Suitability to Lease

Exhibit E - Finding of No Significant Impact

Exhibit F - Memorandum of Lease

Exhibit G - Davis-Bacon Wage Determination

Exhibit H - Form of Guaranty

Exhibit I - GAF Development Budget

Exhibit J - Definitions

Exhibit K - Copy of Development Agreement


A Navy Broadway timeline and links to relevant documents. 01/04/07

                                                          by Pat Flannery                                        top^

I thought it would be helpful for those of you who want to be fully read for Tuesday's Council Meeting. Here is a table of the major documents relating to Navy Broadway.

  1990 Navy's Environmental Impact Statement (EIS)
  1990 City's EIR
  1991 U.S. Court's "Condemnation" Decision
  1992 City/Navy Development Agreement
  02/09/06 The Reader on Jim Waring
  June 06 Navy EA
  09/15/06 Aguirre MOL for September 9th Council Meeting
  09/18/06 Aguirre Amended MOL
  09/19/06 City Council Agenda (page 32)
  09/22/06 CCDC Staff Report
  10/02/06 Hering's letter to Sanders
  10/04/06 Aguirre CEQA MOL
  10/19/06 Manis Finding.
  10/20/06 Peters' Memo to Sanders and Aguirre
  11/03/06 Rhodes Appeal
  11/08/06 Trowbridge Appeal
  11/22/06 Navy's Finding of No Significant Impact (FONSI)
  11/22/06 Aguirre MOL re Navy/Manchester Lease
  11/22/06 CCDC Staff Report.
  11/22/06 Memorandum of Lease - County Recorder
  11/22/06 Full Navy/Manchester Lease
  12/21/06 Bob Filner letter to Carl Levin
  12/21/06 Bob Filner letter to U.S. Attorney General
  12/26/06 Manchester attorney Strauss letter to Council
  12/27/06 Aguirre MOL for January 9th Council Meeting
  01/03/07 DSD Staff Report to Council
  01/04/07 BCC Lawsuit
  01/09/07 Council Agenda - Item 336 - Pages 79/82
    The CEQA process
    The San Diego Municipal Code regarding CEQA
    Public Trust Doctrine

Remember, we are demanding a city park! Not a rearrangement of the Admiral's office. If you read nothing else, Bob Filner's letter to the United States Attorney General. We have at least one gutsy public representative in San Diego. Thanks Bob.


A "Navy Broadway" will inevitably become a "Navy Bunker". 01/03/07

                                                          by Pat Flannery                                        top^

Here is an excellent letter from California Assemblywoman Lori Saldana to CCDC on October 25, 2006. In it she referred to and quoted from the testimony of then Captain Hering, Commander of Naval Base San Diego at a Congressional hearing in June 2001.

Admiral Hering is talking out of both sides of his mouth. In his pleadings before the U.S. Congress (for more money for security) he made the perfect case for containing all Navy operations within well defended perimeters. He was right.

He knows it is inevitable that there will be another terrorist attack somewhere in the United States. He knows it is just a matter of time. Yet he wants to place his Command Headquarters right in the middle of one of the busiest tourist spots on the planet!

He recklessly wants to endanger not only tens of thousands of San Diego residents and workers, but throngs of unsuspecting tourists and cruise ship passengers. No wonder Assemblywoman Lori Saldana is concerned.

Approving "Navy Broadway" would be painting a bulls-eye on our waterfront. One terrorist attack could wipe out the entire top Navy Brass together with thousands of innocent civilians as an added bonus. Where else in America could they achieve that? Where in all America would there be a juicier target than "Navy Broadway"?

Or are we to become human shields for the Navy? I thought only terrorists hide among civilians. Is that what the Navy is up to in San Diego? What is Hering thinking!

Even if the "Navy Broadway" complex, as presently envisaged, escapes the next attack, this Admiral, or his successor, will be clamoring to Congress for money to build a defensive perimeter all around this ill-conceived Navy Headquarters. A vital section of our civic waterfront will become a walled-off Navy fortress. It is inevitable. The catch-cry will be "force protection". Apart from Berlin-style walls on land, there will be booms and barriers extending well out onto the water. What are we thinking! 

That's what this guy Hering and his greedy civilian partner, Manchester, has in store for us. All that is between us and that scenario is five votes on the City Council on Tuesday. (Item 336, last Item on the Agenda, pages79/82)


San Diego may become the Alamo of the California coast. 01/02/07

                                                          by Pat Flannery                                        top^

An extraordinary letter from Admiral Hering to Mayor Jerry Sanders dated October 2, 2006 gives some idea of the Navy's sense of entitlement to the Navy Broadway project. By early October Hering had enough, he requested Mayor Sanders' "personal assistance in obtaining a consistency determination as soon as possible".

I do not have a copy of Sanders' response but from everything that has happened since, it must have been reassuring to the Navy. Hering got his "determination of consistency" shortly afterwards, on October 19, 2006, in the Manis finding. I personally condemned that finding in the strongest possible terms, calling it a declaration of war on the people.

I was unaware of Hering's letter at the time. Having now read it, my disgust of this sordid affair deepens. It proves that military personnel, such as Hering, are totally unsuited for the role of developer. He was "alarmed" that the views of a coalition of concerned citizens might be considered or that California's environmental laws might likewise be considered. The Manis finding dutifully put a stop to both. Sanders gave Hering what he wanted.

Inevitably we will find out what Manis and Waring knew when they issued their CEQA finding on October 19, 2006. We already know that they were aware of "new information" provided by the Manchester seismic fault study in June, but decided to ignore it. Reminiscent of the Watergate tapes, vital pages have been removed from that report.

Manis and Waring maintain they were unaware of the June 2006 Navy EA (which details a whole range of "changed circumstances", now picked up in Aguirre's December 27, 2006 MOL). Why are Manis and Waring not seizing upon that lifeline? They could so easily point to the EA document and say that if they were aware of it they would never have issued their October 19, 2006 finding, because it was not officially released by the Navy to the general public until November 25, 2006.

Are they afraid that somebody like me will discover that they were very much aware of it long before they issued their finding, which gave the Navy its "statement of compliance"? I have already called for the dismissal of Waring and Graham based on the certainty that they knew about the Manchester seismic study in June but hid it from the public. How much louder will the cry for their dismissal be, if it turns out that they were also aware of the Navy's EA long before they contrived to issue their "statement of compliance"?

My suspicions deepen when I read this telling sentence in the last paragraph of Hering's letter: "all requested materials have been in the hands of those necessary to make a decision since June". The Navy pushing to get what they want is one thing, but City employees like Waring, Graham and Manis, breaking their employment contracts and ignoring their fiduciary responsibility to the people of San Diego, is quite another.

The Navy's mission is to protect and defend our coastline, not to own it for its own profit.  Sanders chose the Navy's interest over that of the citizens who elected him. What part did his hand-picked CEO, retired Navy Admiral Ronne Froman play?

Now read the Hering letter for yourself:

Next Tuesday, January 9, 2007, the City Council will decide where it stands on this craziness. Will they too side with the Navy against the citizens who elected them?

The Navy should be paying us, the citizens of San Diego and the people of California, back rent for the use of that prime piece of public trust property since 1919. Instead of us building them a new headquarters, they should be building us a waterfront park!

Will the City Council repeat Sanders' abject toadying to the Navy? If it does, it will set alarm bells ringing all up and down the California coast. It will be obvious to all that the Navy has become the biggest developer in California and that it is absolutely ruthless in getting its way. San Diego may become the Alamo of the California coast.

What Navy Broadway is really all about is the shocking emergence of the U.S. Navy as a super-aggressive developer and the apparent lack of will (or power) by municipalities to resist it. Hence the abject compliance of our Mayor to Admiral Hering's letter.


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