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San Diego's Waterfront
 

I will assume that each of my readers are familiar with the ups and downs of the troubled Port District project on Broadway Pier, so I will confine myself to "the facts behind the spin". The basic fact is that cruise ships and public use of the Broadway Pier are incompatible. To illustrate this reality I recorded the following video in early 2010 which clearly shows the inappropriateness of using the Embarcadero as a cruise ship terminal.
 

Nevertheless the Port's spinmeisters have named the new Cruise Ship Terminal the "Port of San Diego's Pavilion on Broadway Pier". The grand opening is tomorrow, Saturday December 18, 2010. Here is a video link to the Port's spin on how this building "will serve as both a public event center and cruise ship terminal". Compare the two videos and judge for yourself.
 

A group opposed to cruise ships on the Embarcadero, the Navy Broadway Complex Coalition (NBCC) filed a lawsuit on December 15, 2010, accusing the Coast Guard and the Port of deliberately failing to enforce § 165.1108 Security Zones; Cruise Ships, Port of San Diego, California which states in relevant part:

(b) Location. The following areas are security zones:

(1) All waters, extending from the surface to the sea floor, within a 100 yard radius around any cruise ship that is anchored at a designated anchorage within the San Diego port area inside the sea buoys bounding the port of San Diego.

(2) The shore area and all waters, extending from the surface to the sea floor, within a 100 yard radius around any cruise ship that is moored at any berth within the San Diego port area inside the sea buoys bounding the Port of San Diego.

Note that it says the shore area "within a 100 yard radius around any cruise ship that is moored at any berth". This means that all the public activity I captured on video earlier this year was illegal. The Coast Guard simply did the cruise ship owners a favor and turned a blind eye. Charlie Wurster, a 37 year veteran of the Coast Guard, was President and CEO of the Port District at the time. You can actually see him on my video entering B Street Terminal on a golf cart smoking a big cigar.

The citizen action group NBCC has announced a rally in front of the Pier tomorrow at 3:00 PM protesting "the Ports replacing the promised oval  public park and public pier at the foot of Broadway with a permanent private cruise ship terminal structure". Mayor Jerry Sanders is scheduled to perform the official dedication of the "Pavilion" at 4 PM.

Whether the public embraces this new $28 million building as a civic asset or a monument to corrupt San Diego politics remains to be seen. But one hard fact the Mayor will not be including in his dedication speech tomorrow is that the taxpayers of San Diego, Coronado, National City, Chula Vista and Imperial Beach are being saddled with an enormous financial risk arising out of the Port's cruise ship activities.

The hard fact hidden by the Port's spin is that the Port has assumed all liability for cruise ship operations under par 7.2 (page 12) of its Agreement with the Carnival Corporation. How many citizens of the five participating cities know that? Probably none because nobody has ever told them. That is not the job of government spinmeisters (or the U-T it seems).

Perhaps the greatest financial risk of all, not to mention the risk to human life, is the utter abandonment of any attempt to protect the public from a terrorist attack. The banana ships at Tenth Avenue Marine Terminal enjoy better protection than human cargo at the Embarcadero. Can you imagine the class action lawsuits against the five cities in the event of loss of life?

But the most immediate and certain financial risk is associated with the Port issuing itself a Coastal Development Permit (CDP) that will breach the California Coastal Act. A key provision of that Act is that any Port District may not amend its Port Master Plan (PMP) by issuing itself a CDP.

In drafting the Coastal Act the State legislature was careful to ensure that neither a Port nor the Coastal Commission could amend a PMP as part of the permitting process. At city level community plan amendments are routinely handed out with development permits. If allowed for coastal development permits it would have left the Coastal Act toothless. Most Coastal Commissioners come from city councils and would have treated Port Master Plans with as little respect as they do community plans.

The State learned the hard way that it will always lose in court if its Coastal Commission is foolish enough to uphold a CDP that amends a PMP. One lawsuit resulted in such a large award of costs under the "private attorney general" provisions that the State passed a law making the Coastal Commission budget solely responsible if it ever happened again. That got the Commission's attention.

For that reason the Coastal Commission now insists upon indemnification from any Port that might succeed politically in garnering sufficient votes on the Commission to uphold such an ill-advised CDP. Yet that is exactly what the San Diego Port District is attempting to do by dropping the Oval Park at the foot of Broadway to facilitate cruise ship operations on Broadway Pier. If it succeeds it will create an enormous financial liability for its five participating cities.

This means for example that every homeowner in Coronado will be on the hook for whatever costs a judge may award the smart attorney who will inevitably sue the Coastal Commission and thus the Port for approving a CDP that breaches the PMP.

So, if you decide to attend tomorrow's festivities marking the grand opening of this new $28 million cruise ship terminal/pavilion at Broadway Pier which according to the U-T "is being transformed into an old-fashioned amusement park to commemorate the Port Pavilion", bear in mind the hard facts behind the Port's spin to justify its privatization of our front door - Broadway Pier.
 

Here is a letter from Christine Anderson, the Port's VP of Operations, dated July 27, 2007. In it she advises the Port Commissioners that Bill Anderson, the Mayor's Planning Director, had attended a meeting of the NEVP Joint Powers Authority (JPA) the day before. Anderson had advised Port staff that his boss the Mayor was unhappy with the Port's plans for a temporary cruise ship facility on Broadway Pier, that he wanted a permanent building there.

The spin was that the Mayor wanted an "iconic" building on Broadway Pier. The John Moores comprehensive waterfront plan has always included a cruise ship terminal on Broadway Pier. Was Anderson really Moores messenger boy? We know that Sanders is controlled by money barons like Irwin Jacobs and John Moores. Was Moores behind this mayoral intervention? For Sanders to get involved so heavily it had to be a major money man.

In any case Anderson's message was effective. Things took off from there. Only 11 days later, on August 7, 2007, the Port Commissioners approved a $562,507 increase to the design consultant's fee, Bermello Ajamil and Partners, Inc. It went from an original contract for $700,000 to $1,262,507. As of January 10, 2010 it has ballooned to $3,484,788.

Here is a letter from Rita Vandergaw, the Port's Director of Marketing, explaining to the Board the impact of the Mayor's involvement. This is a very informative letter. It subtly describes Sanders and his hidden masters as "stakeholders" and their new directives as "project scope increases". She equally subtly warns that funding issues will emerge when the planning and bids process is complete, "probably in the fall". It must have been clear to everybody at the Port that a heavy hidden hand was steering Carnival's money away from B Street Pier and onto Broadway Pier.

This is the "iconic" building that has resulted:

 

The only thing certain is that San Diego taxpayers will end up paying the bill. The Port did not order it and will refuse to pay for it. The final cost is estimated to be over $28 million. $3,484,788 is for a bloated design fee. Bermello Ajamil and Partners, Inc. has done well out of it.

The Mayor's intervention gave the Port cover for asking CCDC to fund the project. This staff letter written 3 days after the August 7, 2007 Port Commissioners meeting, passes on the Mayor's spin: "discussions with the cruise lines, fire marshal and Homeland Security Department prompted the need for a facility at Broadway Pier more permanent than a tent". Did they really? I have not seen any documentary evidence of such input by any of them.

It also emerges from this letter that at the JPA meeting on August 26, 2007 attended by Bill Anderson, Fred Maas who represents CCDC on th JPA, intervened in the design of the Lane Field project for which the Port has sole land use jurisdiction.

Maas wanted a more "comprehensive" planning process on the waterfront. Comprehensive has always been the keystone of the Moores plan, making it all the more likely that the hidden heavy hand is that of John Moores, who incidentally has excellent working relationships with unions like Unite Here. He may even be involved in Lane Field LLC.

Rita Vandergaw wrote another informative letter to the Port Commissioners on October 4, 2007 following a meeting of the JPA. The letter makes it clear that the escalation of the Broadway Pier project is in full swing. The Mayor and his hidden master is prevailing.

Kevin Faulconer's role remains a mystery. Will he attempt to divert money earmarked by CCDC for the NEVP, to bail out the Port for what it has wasted on Broadway Pier? That diversion would leave the NEVP without funding. All his talk about park/plaza space on the Embarcadero would be just hot air. It would show that the Broadway Pier was his agenda all along.

If he was part of a hidden agenda, he is trapped. If not, now is the time for him to put the taxpayers' interests before hidden masters. If he intends to run for mayor in 2012 he can't claim to be the taxpayers' friend on Prop D while wasting $28 million on a boondoggle in his Council District.

If he accepts Sanders' legacy, depriving the people of San Diego of a long-promised world-class Embarcadero by secretly serving special interests, he will be found out and defeated. Kevin chairs the JPA. If he brings a proposal before City Council to bail out the Port, we will know the worst. Like Sanders, he will be exposed for serving hidden masters, not the people who elected him.
 

On November 27, 2007 Carnival Corp sent this letter to the Port of San Diego regarding their shared vision for the future of the cruise ship industry in San Diego. Carnival warned that changes in the cruise ship business environment warranted changes in their joint vision. Carnival worried whether the Port's plan to spend $164 million in planned improvements to B Street Pier could be supported through long term cruise ship usage. Carnival pointed out that it could not "get close to the passenger figures" that would be required.

  

Carnival reminded the Port that the original intent of their joint "vision" was to "reasonably upgrade Broadway Pier so that it can be used as an occasional overflow home port pier". The massive construction on Broadway Pier is therefore the Port's idea. Carnival merely "agreed to amend the original $8 million loan agreement by increasing it to $12 million in order to allow the Port to upgrade (at its request) the Broadway facility ahead of planned modifications to the B Street Pier". Now the Port is trying to blame Carnival for the rape of the original NEVP plan.

Carnival pointed out that the original Broadway Pier "vision" was for a "temporary membrane structure for occasional home port operations that required a relatively low capital investment" but that "now the Port considers Broadway to be a long term structure to be used for home port operations". But what seems to have really bugged Carnival is that the Port expected Carnival to help pay for a permanent Broadway Pier cruise ship terminal it never asked for.

In its summary, Carnival questioned "whether the long term programs the Port has in place to improve the cruise infrastructure can be supported through cruise line usage". That goes to the heart of the issue. If the world leading cruise ship operator, Carnival Corp, believes that the cruise ship business cannot support San Diego's grandiose pier construction, exactly who are the politicians involved planning it for?

I believe it is gambling interests, with support from the union that represents hotel and gaming employees, Unite Here. We really don't know who owns the two-hotel Lane Field project. The owner is a Delaware LLC. It in turn could be owned by just about anybody.

The two proposed high-rise hotels will be right across the street from the cruise ship terminals and gambling is legal aboard cruise ships in international waters. Gambling interests could easily buy their own foreign-flagged vessels. Is that what is really going on? The secret lies in determining the true ownership of Lane Field LLC. That can and must be achieved by the City Attorney enforcing Charter Section 225.  Lane Field is part of the NEVP, which is a joint powers project between the City and the Port. Charter Section 225 applies.

Now look at the Port's reply to Carnival a month later on December 28, 2007 following a face-to-face meeting between the Port and Carnival on December 3, 2007 and a Carnival meeting with the Mayor. Expressing disappointment that Carnival did not share the Port's rosy  scenario, it summarized Carnival's position as follows:

1. Carnival does not anticipate having vessels larger than 2,500 passengers in the foreseeable future;
2. it will not need more than 2 berths for the foreseeable future since it is not projecting any significant market growth on the West Coast;
3. it is not willing to commit more funds to the Broadway Pier project and prefers that the Port put the funds into "B" Street Pier instead of Broadway Pier;
4. it prefers the retention of the current building on B Street Pier with the development of a smaller terminal (similar to a "Barcelona" type facility) on the South side of the B Street Pier.

Speaking for the Port, Bruce Hollingsworth who was then President/CEO, dropped a bombshell:

"We just spent the last several months obtaining support from the City and local residents for the structure proposed for Broadway Pier. Your meeting with Mayor Sanders, in which it has been reported that you indicated to the Mayor that Carnival does not need the building on Broadway, may have caused significant problems for us in proceeding with this development and in obtaining the funding necessary to complete the project."

This means that in 2007 Mayor Sanders was personally told by Carnival that it did NOT want a building on Broadway Pier! Yet he continued to champion a building that destroys the original North Embarcadero Visionary Plan including the signature Oval Park. The Mayor needs to explain why he continues to support spending money on a project that nobody wants, while cutting police and fire. He could so easily have called the whole thing off in 2007. Instead, he proposed a permanent building on Broadway Pier for "aesthetic reasons". Was that the real resaon?

In an effort to justify the Port's extravagant plan, Hollingsworth resorts to circular logic. He tries to blame Carnival for tying the Port's hands, quoting the very contract Carnival was trying to modify. He throws Carnival's cooperation (lending the Port money) back in its face. He used the "you made us do it" excuse and pleaded poverty by writing "we advised you that the Port did not have the resources to support a significant capital investment in the cruise facilities." He was blaming Carnival for the capital spending it never supported, let alone agreed to fund.

Hollingsworth ends defiantly stating "The Port will proceed with its planned improvements to Broadway Pier in accordance with our Amended and Restated Cruise Ship Terminal Financing and Berthing Agreement of May, 2007." In other words, far from jumping at the chance to scale back the Port's plans for a permanent cruise ship terminal on Broadway, it forces it on Carnival whether it wants it or not. Clearly somebody has a hidden agenda.
 

This is the dirty Agreement that is spawning multiple lies about the Embarcadero Oval Park. The fact is that a Panamanian company, the Carnival Corporation, advanced the Port District $12 million at 4.5% interest to construct two home ports, one on B. Street Pier and one on Broadway Pier. The sole source of funds for repayment of this loan, which must be repaid in full by April 30, 2015, shall be a Special Facility Fee charged to each passenger while Carnival branded vessels will receive preferential berthing rights.

The problem is that the Port District has contractually committed itself to obtaining a Coastal Development Permit for the Broadway Pier terminal. This is the genesis of the lies and cheating that are going on. Most of the lies revolve around moving a previously planned 2.5 acre Oval Park right in front of Broadway Pier, which if not removed will make cruise ship operations on Broadway Pier impossible.

Lie # 1 is that the Oval Park was never part of the original Port Master Plan (PMP). That it was in fact part of the PMP is well documented and fully accepted by the Coastal Commission.

Lie # 2 is that moving the Oval Park would not trigger a PMP Amendment. The Port wants to move it out of the way of the servicing trucks to the Broadway Cruise Ship Terminal. Coastal Commission staff is clear that such a move would require a PMP Amendment.

Lie # 3 is that activist objections are merely about the size of a waterfront park not about preserving its vital location blocking cruise ship operations on Broadway Pier. I and others believe that to move the Oval Park is to permit a Cruise Line Terminal on Broadway Pier.

The alternative is quite simple: implement the original North Embarcadero Visionary Plan (NEVP), as incorporated into the PMP, before the Carnival Company upended the Plan by buying itself a cruise ship terminal on Broadway Pier. There is lots of room for cruise ships at a much more suitable location, the Tenth Avenue Marine Terminal (TAMT).

The Port has launched a media blitz spearheaded by a series of public "workshops" during the rest of August. These workshops are akin to public meetings discussing the size of a burial plot and the height of a memorial for a man who has already been condemned to death. His guilt has been decided. Similarly, retaining the Oval Park in its present location is not an option in these workshops. Its demise has already been decided by the Port.

It may all come down to funding. Those opposed to a cruise ship terminal on Broadway Pier like myself, will fight to prevent the entire project so long as it includes the implementation of what we consider a corrupt bargain with Carnival.

The $12 million from Carnival will only partially fund the cruise ship terminal on Broadway Pier. The Port will have to find the remaining approximately $8 million. After that it has no more money for the NEVP project. It is interesting that the Port only has money for Carnival.

Implementation of the non-cruise ship portion of the NEVP will have to come from the City of San Diego through its Redevelopment Agency. CCDC, who administers redevelopment money in that area, has already earmarked the money. Nevertheless, before CCDC can write the check it will require a vote at City Council. That is where the deciding battle will be fought.

Kevin Faulconer is expected to make the argument for spending CCDC money. Carl DeMaio, his reputed rival in the 2012 mayoral race, will argue strongly that if the Port wants its NEVP so bad, it should pay for it. The City is tapped out. It should be an interesting fight.

Now there is a proposal on the table for the City to buy land from the Navy just north of the Lane Field project for approximately $20 million to facilitate extra park space. Will Kevin Faulconer be expected to find that money too? If he does, DeMaio will murder him politically. If he doesn't, where will the extra space come from. One other proposal is to further narrow Harbor Drive. All this to fulfill a promise to a Panamanian cruise ship company.

What makes it all the more intriguing is that Kevin Faulconer is its unlikely champion. Fundamentally the NEVP project is union-driven. It is about temporary construction jobs and long-term hotel jobs. It's main supporters, Steve Cushman and Scott Peters are long-time union trustees. The union most involved in the NEVP is Unite Here. It represents hotel workers and gaming workers. Yes, gaming workers. Are you shocked that there is gaming on these cruise ships? There is big money in gaming. Perhaps that is why some supporters of cruise ships on the Embarcadero are so motivated. Cruise ships could become floating casinos for bay front hotels making San Diego "Las Vegas by the Sea". That may be the dream of some.

The enormous amount of money (which it says it doesn't have) the Port is spending to obtain a permit for a revised NEVP that includes a Broadway Pier cruise ship terminal, is wasted. The Port must know that endless appeals and court filings still lie ahead. Perhaps it is merely trying to avoid being sued by showing Carnival that it did everything possible (including lying) to get a coastal permit. That would be the kindest interpretation of what is going on.

The wise move at this stage is to do a deal with Carnival reversing the dirty deal that is causing all this expense and risk. Then the NEVP could proceed as originally planned. We will have to wait and see just how dirty the Carnival deal really was. We will have to wait and see just how far its proponents are willing to go to ram it through. Much will depend on Kevin Faulconer, the unlikely champion of a massive union gig. Or is it something more?
 

This Agreement is a must read for anybody who wishes to understand what is happening on the Embarcadero. It makes the infamous Charger's Ticket Guarantee seem like a sweet deal for the City. With this Agreement the Port Commissioners tried to cede control of the Embarcadero to a Panamanian corporation. They thought that by signing this Agreement the NEVP was dead. But it is not. This Agreement is legally flawed. The Port cannot grant what it does not have. See below.

In March 2005:

"Carnival agreed to advance monies to the Port for certain interim improvements to the "B" Street Pier within the Port Facilities up to a maximum of Eight Million Dollars ($8,000,000) in return for certain preferential berthing rights for Carnival vessels at the north berth of the "B" Street Cruise Terminal."

In May 2007:

"Carnival agreed to increase the loan from Eight Million Dollars ($8,000,000) to Twelve Million Dollars ($12,000,000) and revise the original scope of work to provide for the upgrade and improvement of a homeport facility on the Broadway Pier."

By fronting the money for two cruise ship terminals (B Street Pier and Broadway Pier) the Carnival Corporation thought it had literally bought our Embarcadero.

In Par. 3.3 the Port appears to accept responsibility (without an expressed contingency) for obtaining the Coastal Development Permit that was denied last week. The Port could not have promised a permit that it had not already obtained. Therefore there was an actual contingency.

Due diligence by Carnival would have revealed that the Port's promise of a State Coastal Development Permit was beyond its power. And Carnival knew it was dealing with a public agency, not a private party. A public agency's property rights are considerably more complicated.

In Par. 4.5 the Port appears to grant Carnival the right of "ingress and egress" to the Broadway Pier. Again, the Port could not have granted a right-of-way over an area that had already been designated as Broadway Landing Park, popularly known as the Oval Park, to the people of San Diego in its certified Port Master Plan, a binding planning document. Therefore any grant of "ingress and egress" was moot.

Due diligence by Carnival would have revealed that the Port's grant of "ingress and egress" to Broadway Pier was beyond its power. It was like buying a used car from a guy who had already sold the car to someone else. One needs to be diligent when dealing with used car salesmen.

To pay off this totally inappropriate loan from Carnival, the Port started collecting a "Special Facility Fee" of $4 from each embarking and disembarking (homeport only) passenger in April 2006. This fee is to pay off the $12 million Carnival loan, with interest at 4.5%, by April 30, 2015.

But the most disturbing clause in this one-sided Agreement is:

"Carnival will provide and pay for security for the outbound screening of provisions ...... Port will provide and pay for security in all other areas of the Port Facilities (including passenger screening, perimeter security, traffic control and pier access) as required by applicable law and consistent with industry standards."

This is a terrible deal for the Port who is responsible for "passenger screening, perimeter security, traffic control and pier access". That is why Carnival is so blasé about security not currently being provided "as required by applicable law". See this video.

It is hard not to suspect corruption at the Port.
 

One of the biggest mistakes Mayor Sanders made was to fall for whatever slick sales talk Steve Cushman used to cajole him into backing this used-car salesman for a third term as Port Commissioner, despite term limits. It has now cost him the North Embarcadero Visionary Plan (NEVP). It lies in ruins because of Cushman's cruise ships.

I have a suggestion: implement the people's "Embarcadero Visionary Plan" i.e. move the cruise ships to the 10th Avenue Marine Terminal. It has berths for three cruise ships at a time and currently gas three vacant buildings. See my blog of August 17, 2009.

This is not only a win-win political strategy, it is also a win-win economic strategy. The people would not only get their promised park/gathering-place on the Embarcadero, San Diego would get the economic benefits of a world-class cruise ship destination, located next to the Hilton, within walking distance of the Convention Center, with military-class security impossible at its present Embarcadero location.

Now that would put us back in contention for America's Finest City!

Are we up to it? Of course we are. The Cushman cruise ship plan is crass and demeaning.  Our world-renowned Embarcadero, with its famous "Star of India", deserves better than that. Cruise ships are the "used-cars" of the tourist industry. They turn our beautiful Embarcadero into a working dockside. Shame on those who supported Cushman's "used-car" plan.

I journeyed to Ventura on Wednesday to cover the fateful Coastal Commission's meeting that would decide the NEVP's fate. It was a long and tense day.

Amazingly, not a single other San Diego media person turned up. Steve Schmidt, a staff reporter for the Union-Tribune, wrote this article. But he relied on a remote video stream, missing the lobbying and strategizing buzz that occurs around such a meeting. There was a lot going on off camera. Everybody knew that the big San Diego project was in trouble.

In order to understand what happened throughout this long process, read this flow chart. It shows the entire coastal development permitting procedure. First, the San Diego Unified Port District, as the appropriate local government agency, issued itself a coastal development permit based on a Port Master Plan previously certified by the California Coastal Commission .

There were immediate and multiple appeals to the Commission. Every effort was made to craft compromise conditions that would allow its approval. All failed, resulting in a final denial on Wednesday. The powerful cruise ship interest had achieved a bridgehead on the Embarcadero and would not budge. It went for broke, using Cushman and the Port as its broker.

There is now no process by which this permit can be resuscitated. The entire North Embarcadero Visionary Plan (NEVP) is dead - no coastal development permit, no project. I could almost hear San Diego's Planning Director, Bill Anderson, who had driven up to represent the Mayor, thinking: "what am I going to tell the boss". I could almost hear Port Chairman "Dukie" Valderrama and Port CEO Charles Wurster, thinking "what are we going to tell the Carnival Cruise boys?"

From its inception, the public improvements in this "visionary" plan were cover for the public funding of two cruise ship terminals for a Panamanian-registered Corporation, Carnival Cruise Lines. Obviously there was huge influence peddling going on. Appropriate "performance bonuses" were in place. Far from a Port District fresh start on this project, a full inquiry is needed into that agency. It seems to have been taken over by the Cruise Ship industry, or is it the gambling industry. More about that in a future blog.

Contrary to the Union-Tribune report, the vote did not hinge on the "Oval Park" issue. The U-T was reflecting the Port's spin that blames the "negos", as Cushman so arrogantly calls all opposition to his cruise ships. Ian Trowbridge's appellant group, the "Navy Broadway Complex Coalition" (NBCC) had bent over backwards to accommodate the Port in crafting an alternative "Destination Park". Trowbridge went so far as to propose another continuance until June, to allow for even more appeasement.

Not even Neville Chamberlain could have appeased the Port District because it was shilling for Carnival who was calling the shots. Carnival wanted that coastal development permit without any residual liability in the form of indemnification of the Coastal Commission.

But another appellant group, "Save Everyone's Access" (SEA), led by long-time park activist Scott Andrews, was less naive. This group's legal counsel, Doug Carstens, a well known (and winning) environmental and land use attorney from Santa Monica, called for nothing less than total denial of the permit. That clear "up or down" stance struck a chord with the Commissioners and precipitated the meltdown of the Port's game plan. The SEA group played this video. It showed the Commissioners that the reality on the Embarcadero is very different from the Port's promo.

The SEA activists had read the Commission correctly. It knew that the Commission's focus would be on the indemnification issue. Everybody knew that this flawed permit, if granted, was certain to be challenged in court. The Port team used up most of its allotted time arguing that the Commission could not require such an indemnity. It too knew where the pivot point lay.

Ron Saathoff's wife Stephanie, a lobbyist for the Port, stepped up to the microphone with a letter from State Senator Christine Kehoe supporting the Port's argument against the State Commission. What was that all about? She's a State Senator! I'm sure there is an interesting tale behind that little piece of melodrama. Kehoe and Saathoff? I called Kehoe's office for an explanation of her "indemnity" position. They will get back to me.

We know that Carnival had already indemnified the Port (which it demonstrably controls). It was not about to see that indemnity extended to the Coastal Commission (which it obviously cannot control). No doubt the Port team was on a performance bonus. They and the Mayor's team were clearly confident that at least six Commissioners would put the interests of a foreign Corporation (Carnival) above that of the California Coastal Commission. Five Commissioners did exactly that. A "Yes" vote put the Commission at operational risk, as its legal counsel had explained earlier. This demonstrates how totally compromised those five pro-developer Commissioners are. They clearly represent developer interests, not the public.

Some years ago the California legislature foreclosed on any "deep pockets" recourse to the State Treasury in the event of a successful lawsuit against the Coastal Commission. The State had suffered a substantial loss following a successful "private attorney general" lawsuit against the Commission. Any adverse award must henceforth come out of the Commission's own annual budget. A big award could close down the Commission for a year or more, explained Peter Douglas, its long-time Executive Director. Indemnity should be the norm, not the exception.

It is not clear that Commissioner Kruer, who recused himself from Wednesday's vote following a recent revelation that his brother was a sub-contractor on the NEVP project, would have voted for the Port and put the Commission in financial jeopardy. Legally he didn't have to recuse. He could have toughed it out. It is clear however that the Port and City had bet the farm that he was a safe "Yes" vote.

Had he provided the sixth "Yes" vote he would have changed San Diego history. Perhaps he was not as committed to the NEVP project as was believed. Or there is more to his brothers involvement than we yet know. To add to the mystery, his close friend, Commissioner Burke, who is normally very developer-friendly, mysteriously went AWOL after lunch. It is possible that these two contrived to dodge the indemnity vote for the sake of the Commission. Politics is a black art.

In the end enough Commissioners expressed concern for the heightened security risk associated with cruise ships to vote "No". Would the presence of cruise ships induce a terrorist attack? Would the Commission be sued for permitting terminals without mandating adequate security? Earlier, the Port had tried to portray cruise ship calls as just "special events". Anybody familiar with the reality of the embarcadero knows that a cruise ship presence is now almost continuous.

SEA's attorney Carstens expressed concern not only for the growing threat to the personal safety of nearby condo owners, but also to their quality of life. As an ex-Navy officer he also wondered whether the terrorist threat to nearby Navy installations is heightened by these unsecured cruise ships. He cited this U.S. Coast Guard regulation. He told how it requires a 100 yard security zone around all cruise ships while in port! The strange fact that this regulation is not being enforced will be the subject of a future blog.

The ten Coastal Commissioners present had plenty to worry about when casting their votes. Now it is up to the Unified Port District and the City of San Diego to address the growing security threat of cruise ships on the Embarcadero. The Port has painted a bulls eye on the Embarcadero with its teeming tourists and unsuspecting locals. Cruise ships are second only to aircraft carriers on the terrorists' target list. Look again at this video. Look at the chaos cruise ships can bring unless they are contained within a proper marine terminal environment such as 10th Avenue.

The people need to have a serious chat with the two elected representatives most responsible for this debacle: Jerry Sanders and Kevin Faulconer. Once again they have demonstrated that they are little more than corporate lobbyists on the people's payroll.
 

	Read this Editorial in today's U-T. In hiring Ron Powell, a veteran Union-Tribune reporter as its spokesperson, the Port District hired the ability to get friendly editorials to run in the U-T at critical moments like today. This is a critical moment for the Port District's North Embarcadero (Cruise Ship Terminal) plan. It needs to pull off another switcheroo.
Ron Powell

Powell joined the San Diego Evening Tribune back in the 1970s. He was with the Union-Tribune from 1991 until the Port hired him last year. He knows the San Diego political game. He knows the strategic use of a U-T Editorial.

The "hitch" that Powell and his old friends at the U-T want to "un-hitch" for the Port District, is a Coastal Commission requirement of legal indemnification by the Port District.

The deal before the Coastal Commission calls for "the port to indemnify the Coastal Commission for all costs related to any lawsuits that might be filed against the project". The Port wants to "amend the amendment" to eliminate the indemnification clause and the U-T is trying to help. What are friends for?

The reason the Port District is balking at indemnifying the Coastal Commission is that Carnival Cruise Lines has already indemnified the Port District as part of its coastal development permit application, but Carnival is now balking at accepting liability for the permit's breach of the Coastal Act. The Cruise Ship tail is again wagging the Port District dog.

Both Carnival and the Port know that the deal they are asking the Coastal Commission to approve will inevitably be challenged in the courts. It breaches the Coastal Act. Carnival Cruise Line wants the Coastal Commission to be the one on the hook for the inevitable damages.

Contrary to what the Union-Tribune is suggesting, the Coastal Commission should not assume that liability. If they do, the California taxpayers will pay for the Commission's folly. That is exactly what Carnival Cruise Line wants.
 

At its monthly meeting tomorrow the Port District will be asked to consent to the assignment and assumption of a lease from Fifth Avenue Landing LLC (FAL) to the San Diego Convention Center Corporation (SDCCC).

"SDCCC entered into an agreement to purchase FAL's leasehold interest in September 2008 and paid FAL $1 million for a one-year due diligence process. SDCCC now desires to acquire FAL's remaining leasehold interest for $13.5 million. FAL will finance SDCCC's acquisition by providing a $12.5 million deed of trust secured by the leasehold interest. SDCCC will pay FAL $1 million at the close of escrow and make annual payments of $500,000 for up to five years. Consequently, SDCCC is requesting District consent to the assignment of a portion of the FAL leasehold interest to SDCCC, the grant of a new Amended, Restated and Combined (ARC) lease to SDCCC and consent to a lease encumbrance."

In another part of the Agenda, on page 4 of 9, it says: "On September 16, 2008, FAL and SDCCC entered into a letter of intent to form a definitive agreement for the purchase and sale of FAL's option to lease agreement for the premises which expires on April 9, 2010."

Which is it? A lease or an option to lease? If it is SDCCC's "letter of intent", not FAL's "option to lease", that expires on Friday (the Agenda text is not clear as to which it is), it means that FAL only has an "option to lease", not an actual lease.

If so, how could a mere "option to lease" be worth $13.5 million? That would be very easy money for FAL. The public really needs to see that option, or that lease, whichever it is. When does it expire? Has FAL been making rent payments? If so, how much? All we have so far are representations (or possibly misrepresentations) in the press. That is why Blog of San Diego always insists on seeing actual documents.

It would appear that either way the Port and the Convention Center are giving Fifth Avenue Landing LLC a big fat present of $13.5 million. SDCCC could simply let its letter of intent expire on Friday and negotiate a new lease directly with the Port when the time comes. It has a very long way to go before it gets its financing in place, if at all. Meanwhile, there is no mention anywhere of a penalty and even if there were, would it be greater than $13.5 million? If it were, it would have been unconscionable for any public agency to have agreed to such a thing.

The Port District has put a companion Item 4 on its Closed Session Agenda  for tomorrow. It is described as "Negotiation: Price and Terms" of "Approximately 221,000 square feet of tideland area leased to Fifth Avenue Landing, LLC, and the adjacent District owned roadway, all bayward of the San Diego Convention Center." Why is that necessary if FAL already has a lease, or an option to lease, that is good until 2024?

What exactly is being "negotiated" tomorrow in closed session? Is an "old" lease only now being created to enable "Recommendation C" on page 3 of the open session Agenda: "Ordinance Granting Amended, Restated and Combined Lease to San Diego Convention Center Corporation ending June 30, 2024"? Are both the old and new leases being "Amended, Restated and Combined" on the same day?

Will the product of the closed session be walked over to the open session as if it were in existence all along? Does FAL really have a prior lease with an expiration date of June 30, 2024? If so, why has it not been presented to the public well in advance? Why has it not been recorded in the County Recorder's Office? That would be the normal thing to do.

I called and asked both the Port and Convention Center whether what is being "negotiated" in closed session tomorrow affects anything on tomorrow's open session agenda. Both declined to answer.

If the Port District and the Convention Center are indeed gifting Fifth Avenue Landing LLC with $13.5 million, as it appears, each and every official involved in this smelly transaction is vulnerable to prosecution. This is a clear case for the FBI.

Apart from questions regarding a closed session action being taken on the same day as an open session action on the same matter, there are huge unanswered questions regarding the present value of the interest being purchased by SDCCC, whatever it is. No official appraisal has been published, just unconfirmed press reports of various value ranges.

Recent press reports have described that interest as a "land interest" when there can only be a "leasehold interest" in public tidelands. As we have seen above, it may turn out to be only an "option". We just don't know. Without publication of the actual entitlement document it is impossible to know why SDCCC is willing to pay $13.5 million for that entitlement.

I was today informed by a reputable title company that a lease on this property, if one exists, has not been recorded at the San Diego County Recorder's Office. Is the County Recorder hiding it? Surely not. All recorded documents must be available to the public.

It should be an interesting Port District meeting tomorrow.
 

Yielding to intense pressure from Carnival Cruise Lines, a Panamanian Corporation, and its political allies, the Coastal Commission staff has issued this Report in an attempt to provide political cover for the Commission to grant an illegal "conditional" permit for the Port's cruise ship terminal on Broadway Pier.

The Coastal Commission will hear the combined appeals, marked 15a on the Commission's Agenda for April 14, 2010, at the Board of Supervisors Chambers, 800 S. Victoria Avenue, Ventura, CA 93009. The Staff is recommending a "Yes" vote on: "The Commission hereby approves a coastal development permit for the proposed development and adopts the findings set forth below on grounds that the development as conditioned will be in conformity with the policies of the certified Port Master Plan."

This development "as conditioned" represents a substantial amendment to the certified Port Master Plan. The Coastal Commission is therefore set to do something that it does not have the power to do (ultra vires). A master plan amendment cannot be granted as a condition attached to a coastal development permit. That's not how it works.

Here are the relevant sections of the Coastal Act:

Public Resources Code 30714: “The commission may not modify the plan as submitted as a condition of certification.”

Public Resources Code 30716: “Any proposed amendment shall be submitted to, and processed by, the commission in the same manner as provided for submission and certification of a port master plan.”

These two code sections mean that a port master plan may not be amended by the Commission as a condition of granting a development permit, no more than an amendment can be granted as part of an original certification. It is clear therefore that this particular port master plan amendment must be processed by the Commission "in the same manner" as the original port master plan was certified. The reason is obvious: if the Commission could amend a PMP as part of the process of granting a development permit, the entire Coastal Act would be defeated.

Moreover, this amendment has already been ruled a  "Substantial Issue" by the Commission, so the "de minimis" provisions do not apply. See the Commission's own appeal process flow chart.

Here is the Port Master Plan Amendment that is being illegally added as a condition. They have introduced a whole new Phase to the project, Phase 1C. It is as blatant as that.

"Phase 1C of the permit, addressed in this Plan, consists of identification and evaluation of an alternative park site, and implementation of a plan to develop a Waterfront Destination Park as an alternative to, and replacement of, the oval-shaped park/plaza shown on Figure 11 of the certified Port Master Plan (PMPA) adopted by the Coastal Commission March 14, 2001. This Plan identifies the requirements of the Waterfront Destination Park, the components of the associated EIR and the PMPA, and establishes milestones which the San Diego Unified Port District, must meet during the environmental review and approval process, to ensure the Waterfront Destination Park will be constructed in a timely manner."

Yeah, right.

This is not the first time the Coastal Commission granted the Port District a development permit on a wing and a prayer. In 2001 it permitted the "Midway" project to go ahead on the Port District's false promise to provide "alternative parking". Here is the Coastal Commission Staff Report dated June 28, 2001. Read pages 18 & 19 re. "Parking/Public Access", particularly this part:

"The EIR requires that 79 additional off-site parking spaces be provided, if not on Navy Pier, then at a nearby location. Thus, adequate parking to accommodate the demand generated by the Midway will be provided."

Does that sound familiar? So, here we go again, with an "Alternative Park" promise. The Commission now wants to grant the Port District a Cruise Ship Terminal Permit based on a promised "Alternative Waterfront Destination Park", that will surely go the same way as the 2001 "Alternative Parking", promised by the Port District to obtain its Midway permit.

Years from now we will still be talking wistfully about a "Waterfront Destination Park". We are still waiting for the Midway "Alternative Parking". We will be told it was "not feasible" - how Steve Cushman dismissed the now defunct Broadway Landing Oval Park.

You would think the Coastal Commission would have learned its lesson. No. Such is the power of Carnival Cruise Lines over our venal officials. This Panamanian Corporation is effectively running the Port of San Diego. It is buying massive TV advertising using public money to promote its cruise ship business, quoting a bogus "economic benefit". In fact the opposite is true - it sucks business from our hotels and therefore tax revenue.

The Broadway Pier project is part of the North Embarcadero Visionary Plan (NEVP). As the Councilmember for District 2 where the project is located and Chair of the Joint Powers Authority (JPA) that is implementing it, Kevin Faulconer is the key elected official involved.

The (JPA) consists of the City of San Diego, the Redevelopment Agency acting through the Centre City Development Corporation, and the San Diego Unified Port District. Without Faulconer's continued support the Carnival Cruise Lines Corporation will not get its dream cruise terminal.

Here is what I wrote about Faulconer in my blog on August 27, 2009:

"To fund his toxic "pork" project he has to get this Joint Exercise of Powers Amendment passed at City Council on September 15, 2009. He is attempting to amend the Joint Powers Agreement without amending the Port Master Plan because the latter would require public hearings. Only a slick PR guy like Faulconer would attempt to pull off something like that. All the public hearings he now brags about, took place before the "Park-to-Cruise-Terminal" switcheroo. The public was never consulted on the new Cruise Terminal."

Faulconer tried his very best to ram it through City Council last year without a Master Plan Amendment but Donna Frye "had an idea". She got it sent back to the Mayor's office until the Oval Park issue could be resolved at the Coastal Commission.

If the Commission now adopts its staff's recommendation, no doubt Faulconer will quickly get it docketed again at City Council and again try his very best to ram it through for Carnival Cruise Lines Corporation.

The reason it is vital for Carnival and Faulconer to avoid the proper processing of a Port Master Plan Amendment is that such a public process would have to deal with post 9/11 security requirements that were not part of the original certification.

The Port District has informed me, as part of a public records request, that there is a requirement for a 100 yard security zone around all cruise ships while in dock. If enforced, that requirement would blow away, not just the Oval Park in front of Broadway Pier, but the entire 105 foot wide esplanade in front of the entire cruise ship part of the "Visionary Plan".

That's their dirty little secret. The truth is that anti-terrorist security requirements make the operation of a cruise ship terminal infeasible outside a fully secured marine terminal such as San Diego's 10th Avenue Marine Terminal.

Once this security impact is enforced and felt, it will lead to major legal challenges of this permit. However, the Port District has indemnified the Coastal Commission and Carnival Cruise Lines has indemnified the Port. The legal risk Carnival is thereby willing to take is a measure of how lucrative a San Diego Broadway Pier Cruise Ship Terminal would be. But Faulconer is still putting the San Diego taxpayers at risk for enormous liability if there actually was a terrorist attack. And his action is negatively impacting the property value of thousands of downtown condos.

Once the public, particularly downtown property owner/constituents of Faulconer's Council District 2, realize what he has pulled on them, he may well find himself back at his old PR job with Porter Novelli sooner than he ever expected, maybe even with a huge "honest services" personal judgment against him for the "taking" of their property values. Because that is what this is.
 

I expected any moment to see Cal Worthington riding down the center aisle of the Council Chamber on the elephant he called "My Dog Spot". Kevin almost broke into a Carnival Cruise version of Worthington's "If you want a car or truck, go see Cal, if you want to save a buck, go see Cal." If you want to bait-and-switch, a Marine Terminal for a Park, go see Kevin.

We still have a chance to move this monster from our front porch to the 10th Avenue Marine Terminal, where it belongs. The original NEVP design was fine, before Faulconer "porked" it up. It is this Cushman/Faulconer bait-and-switch "Park-to-Cruise-Terminal" amendment, that is the problem.

But he is not home and dry yet. To fund his toxic "pork" project he has to get this Joint Exercise of Powers Amendment passed at City Council on September 15, 2009. He is attempting to amend the Joint Powers Agreement without amending the Port Master Plan because the latter would require public hearings. Only a slick PR guy like Faulconer would attempt to pull off something like that. All the public hearings he now brags about, took place before the "Park-to-Cruise-Terminal" switcheroo. The public was never consulted on the new Cruise Terminal.

As part of this ugly deal he wants to move $9 million from the C Street public works project to his Carnival Cruise private project, which means in effect that his Broadway Pier monstrosity is being partially funded by the eminent domain "taking" of private property in Grantville, from where redevelopment money is being shifted to C Street.

Here is the proposed budget Amendment for September 15, 2009. There is nothing a well-connected business cannot do if it has friends in high places. Kevin Faulconer is a businessman, not a public servant. With his background in PR and lobbying, he uses his seat on the City Council to advocate for gifts to private businesses, such as Carnival Cruise Lines.

Below is what the B Street Cruise Ship Terminal has done to our embarcadero already. The excuse is "security". This is not construction, this is permanent. Look at that spiked iron fence and those guards. That is what Broadway Pier will look like. Carnival will "secure" its terminal.
 

Below is what Broadway Pier looks like today. Do Not Enter signs everywhere. And Faulconer wants his San Diego City Council colleagues, on September 15th, to vote the money for a second "secure" Carnival terminal on our priceless Broadway Pier. For the loss of our Pier and our tax dollars we will get more Do Not Enter signs. That's your "Good Project" Kevin? No! We're not buying! And any Councilmember who votes for it will face an outraged citizenry.
 

Make no mistake about it, Carnival Cruise Lines will post guards on Broadway Pier as they do right now on B Street, even more, because B Street is only a "port-of-call" while Broadway Pier will be a "home-port". They have to keep the terrorists out, right? They will own Broadway Pier.

I have lived in San Diego for 33 years and I have never seen anything as outrageous as this. They have turned our gorgeous embarcadero into a working docks and call it "visionary".  If Faulconer rams this through City Council on September 15, 2009 he deserves to be recalled.
 

This is New York's Washington Square sitting at the foot of Fifth Avenue, its triumphal arch modeled after the Arc de Triomphe in Paris, pointing up Fifth Avenue past the Empire State Building all the way to Central Park. It is a sight that makes every New Yorker proud.

Developers, most notably Robert Moses, wanted to run Fifth Avenue through this square to the Hudson waterfront. But thanks to dedicated activists like Jane Jacobs the NY park is still there.

Look at the ten acre Broadway Landing Park San Diegans were promised by the Unified Port of San Diego in its core planning document, the Port Master Plan (PMP). On page 73, Figure 11, it graphically illustrated an oval-shaped park. It later incorporated by reference the entire North Embarcadero Visionary Plan (NEVP), which included a Broadway Landing Segment, centered on the Broadway Pier, containing a narrative and illustration of the oval-shaped park.

Without doing a Port Master Plan Amendment, the Port is attempting to drop this Broadway Landing Park. The Port says it is merely moving planned "green space" around. In a Press Release the activist group accuses the Port of "trying to cancel three major public parks on downtown San Diego Bay tidelands -- Broadway Landing Park, Broadway Pier, and "green spaces". It alleges that there is not one blade of grass left in the North Embarcadero Visionary Plan - that "landscape" has become "hardscape" throughout.

In its North Embarcadero Visionary Plan (NEVP) the Port was very specific regarding this Broadway Park: "Because of its one-sided configuration, with buildings only to the east, the scale of the bay gives the space an expansive feeling larger than its actual size, much as in Baltimore’s Inner Harbor or the harbor in Barcelona." And: "It is a landscaped public open space, accommodating recreational activities on a daily basis or large public gatherings. The park includes a central plaza punctuated by a landmark element such as a fountain or sculpture, orienting visitors and drawing attention to this important public precinct."

According to the activists, that was all just car-sales talk. Port Commission Chairman Steve Cushman, is an ex-car salesman. His car sales motto was "We're not satisfied 'till you are". The activists say: "we're not satisfied Steve. Far from it. You sold us a lemon".

It seems that Cushman and his Commission never had the slightest intention of doing what it promised. The Broadway Landing Park was huckster bait-and-switch from the start. Here is a pretty picture of the 1 1/2 mile Embarcadero Visionary Plan. The centerpiece was to be the  Broadway Park, designated green space in the Port Master Plan.

The Port Commission is dominated by the hotel and tourism industry. While its PR team was showing the citizens pretty pictures of oval parks and leafy esplanades, it was busy planning a "Greyhound Station" for a gaudy Miami-based cruise ship operator on Broadway Pier.

Watch the video of Cushman announcing how they had "obviously waited for this day for a long, long time". Yes Steve, obviously you have been planning this bait-and-switch for a long, long time. That was why the hotel industry lobby broke the term limit law to get you a third term. This traffic circulation plan was finalized in 2006, indicating it was planned a long time ago.

To fully appreciate the enormity of this bait-and-switch, compare what Cushman broke ground on and what was promised. Here is the promise:

Here is the ugly bus-and-truck circulation system taking up half the pier's length. There is a big difference between a "port-of-call" cruise terminal, which we already have, and this "home port" cruise terminal we don't want. It takes approximately six hours for embarkation and three hours for disembarkation at a home port. And now they want to put one on our front doorstep!

The architect for this unbelievably ugly building, Luis Ajamil, describes on the video  how difficult it was to "find places" for home port terminals.

I'm not surprised. Look at it. It's an ugly customs shed - on our civic pier.

Cushman offered Carnival Cruise Lines San Diego's front door - Broadway Pier itself. He justifies this outrageous civic give-away on the video by saying "we need to keep up with competing ports". Other ports are lining up to donate their front doors for ugly cruise terminals? He and his architect might at least try to get their stories straight.

If this is allowed to stand there will be buses and supply trucks clogging Broadway, backed up all the way to Horton Plaza. As proof of this, the Port had to hire Katz, Okitsu & Associates (KOA), a large traffic engineering firm, to design for this massive loading and off-loading nightmare. Read how KOA planned the Ground Transportation Area (GTA) in the Addendum to the NEVP Master EIR and CEQA Initial Study. This thing belongs at 10th Avenue not at Broadway Pier.

According to Kevin Faulconer, Carnival Cruise Lines will load and offload one million bodies per year (Faulconer's numbers on the video) together with their luggage, right on our front doorstep. That represents 384 ship calls per year (1,000,000 ÷ 2,600). Each time a Carnival Cruise Lines ship arrives, 2,600 low-budget transient cruisers will be processed through this 50,000 square foot, two-story, tin shed.

Carnival's spokesperson was "pleased to be here almost five years later to celebrate this major milestone", confirming the fact that for five years Carnival and Cushman have been conspiring on how to use public funds to build this private facility on a public pier. Cushman wants to put the naming rights out for bid. Will anybody bid? Carnival will probably get it for $1. They should then name it "Cushman's Gift".

The Port Commission has been feeding pretty pictures to a gullible media and people, showing oval parks with water fountains in front of a geranium-covered Broadway Civic Pier, while all the time they were conspiring behind closed doors with a Miami-based cruise ship operator. Councilmember Kevin Faulconer's job, in whose District it is, was to smooth-talk its entitlements through the City and its developer-controlled CCDC. Who does Faulconer represent? Certainly not the citizens of San Diego. At heart he is still a big-business PR guy for Porter Novelli.

Everything in San Diego is for sale. It is a "business friendly" city.

Will they get away with it? Maybe not. The California Coastal Commission is not happy. Here is a letter dated April 2, 2009 written by its Coastal Planner, Dianna Lilly, to her opposite number, John Helmer, at the Port Commission, commenting on the Port's Addendum to its original Master Environmental Impact Report (MEIR). Ms. Lilly points out, among other matters, that the oval-shaped park has been "redesigned as a driveway to the proposed new cruise ship terminal on Broadway Pier". Did they think she wouldn't notice? Or do they think they have the political muscle to ram the Coastal Development Permit through at Commission level?

Even if they do, California (CEQA) law is very clear: you can't make major changes to a Master Environmental Impact Report (MEIR), as the Port is attempting to do, by simply writing an "Addendum".  Major changes must be done through an "Amendment" process, which involves public hearings. That is why Cushman ignored Ms. Lilly's April 2, 2009 letter. To comply would have required public hearings! The bait-and-switch cat would be out of the bag.

So Ms. Lilly wrote them again on July 2, 2009. This time she spelled it out: "the Port Master Plan is not a guidance document; the policies and standards contained within it are to be followed closely and specifically." Then her coup de grâce: not only must the policies and principles of the Master Plan be consistently and accurately implemented, the Plan includes those represented graphically and by reference. Remember that graphic illustration in the Port Master Plan and that narrative incorporated by reference from the North Embarcadero Visionary Plan? They are part and parcel of the core planning document - the Port Master Plan. It's the law.

Ms. Lilly laid it out: "Once a policy, figure or project is inserted into the PMP, it is no longer guidance, but the standard of review." The oval-shaped park graphically depicted in the Port Master Plan must be implemented or there must be new public hearings.

Late on Friday August 7, 2009 came the inevitable lawsuit. A recently formed non-profit entity, based in San Diego, called "Public Rights to Bay Access and Parks" has sued the San Diego Unified Port District asking for a Writ of Mandate setting aside and vacating various decisions made by the Port Commission including "redacting a PMP-designated 10-acre waterfront public tideland park". We may now have our own version of New York's Jane Jacobs vs. Robert Moses titanic battle right here in San Diego. Our world image for generations to come is at stake.


Here's how the U.S. Naval Facilities Engineering Command depicted San Diego's version of New York's Washington Square on page 33 of its Environmental Impact Statement (EIS) for its proposed Navy Broadway Complex.

There was always going to be a San Diego signature park at the bottom of Broadway extending onto Broadway Pier.

Everybody, including the U.S. Navy, incorporated that park into their downtown and waterfront plans - everybody that is except Steve Cushman and his Carnival Cruise Lines client.

The next round in this epic battle will be in San Francisco this Friday August 14, 2009 when the Coastal Commission will hear an appeal by various San Diego citizens against the San Diego Unified Port District alleging that the Port's findings in granting itself a Coastal Development Permit are inconsistent with its certified Port Master Plan. Many San Diegans are flying up for the hearing. Here is its Agenda and Exhibits.
 

This troubled complex is back in the news again since last Friday July 17, 2009 when Superior Court Judge Prager finally finished off the lawsuit brought by a citizen group called the "Navy Broadway Complex Coalition".

This group is convinced that the City and the Navy are in breach of State law and is expected to file an appeal within 30 days.

I sat through the entire hearing before Judge Prager on April 22, 2009 when he appeared impervious to any citizen argument but rather bound and determined to give the Navy and the City what they wanted.

Although she is not a party to the lawsuit, nobody has followed the Navy Broadway Complex (NBC) more doggedly than Katheryn Rhodes, a Professional Engineer (PE). As a PE she is licensed to provide professional civil engineering services to the public. Ms. Rhodes has been doing just that with regard to Navy Broadway FREE for several years.

Here is her latest work. She has accused the US Navy, CCDC and the City of San Diego of conspiracy to commit "honest services fraud". If proven, that is a very serious charge. She backs it up with 86 pages of convincing evidence against the City and the Navy. Her main focus is on the fact that the City and Navy have not conducted a valid geotechnical fault investigation for the Navy Broadway site as required by State law.

All development projects located in an “Earthquake Fault Zone” (formerly known as a “Special Studies Zone”) are required to submit valid geotechnical fault investigations at project submittal. The Navy Broadway project is located in the City of San Diego’s Downtown Special Fault Zone as defined in the City's General Plan and approved by the State, even though not yet shown on State seismic maps, which are years behind.

How then was the Navy able to avoid doing "a valid geotechnical fault investigation" at project submittal? Simple. It did an invalid one.

The Navy hired a company called Geocon Inc, who did an investigation and, conveniently for the Navy, reported that they had found no earthquake fault on the site. However, on January 9, 2007 Walter Landry the City of San Diego's geologist, told the City Council that the Geocon report was inadequate. No qualified third-party reviewer or government official has ever found the Geocon report adequate, as required by State law. Nor has it ever been released to the public.

In a bizarre effort to validate this invalid seismic report, the Navy brass has grossly misrepresented an Oct 6, 2008 letter from Dr. Hough of the U.S. Geological Survey to Admiral Herring. Judge Prager relied heavily upon that misrepresentation. The Navy had pounced on this partial sentence in Dr. Hough's letter: "... the section presents a thorough and up-to-date summary of known geological hazards to which the Broadway Complex is potentially exposed". Judge Prager largely based his judgment on it.

The Navy and the City used Dr. Hough's letter, over and over again, to support their false contention that the U.S. Geological Survey supports the Navy position. Dr. Hough has since vehemently denied that it was ever her intention to comment on, let alone validate, the 2006 Geocon report. She points out that she was merely offering general comments on a draft Environmental Assessment (EA) sent to her by the Navy for comment.

Ms. Rhodes: "There is a high likelihood that the active Coronado Fault, [located within] the active Rose Canyon Fault Zone, the State-Recognized City of San Diego Special Fault Zone and reclaimed Port tidelands, is subject to liquefaction and strong seismic shaking and traverses the Navy Broadway Complex exactly were high-rise structures including the Navy’s proposed West Coast Headquarters are located in the Master Plan." .... "Osama bin Ladin, who is a Civil Engineer, could not have chosen a more unsafe site for our Navy West Coast Headquarters".

What drives this irrational determination of the U.S. Navy brass to build its West Coast Headquarters atop a known earthquake fault, alongside a busy railway track where a ship's container, loaded in some far away port with just about any kind of explosive device, including nuclear, that could be detonated yards away from a high-value U.S. Navy facility, right in the heart of San Diego's waterfront, one of the most popular tourist destinations in the world?

What is going on? It makes no sense for our Navy to be in such a place. Isn't there somewhere else? It's almost like they are courting another Pearl Harbor. It just needs to be stopped.
 

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