The San Diego City Council arrogantly and knowingly ignored its own laws in supporting the planned Balboa Park renovation.
Last week Judge Timothy Taylor ruled that the proposed Balboa Park redevelopment plan put forward by the Irwin Jacobs sponsored Plaza de Panama Committee violated city law and could not move forward. The controversial plan to remove parking and vehicular traffic altogether from the Central Mesa of Balboa Park, build the Centennial Bridge that would circumvent the museums around to the south as an offshoot of the historic Cabrillo Bridge, and build a three story paid parking structure to the south of the Organ Pavilion, would have cost a projected $45 million, with $25 million being donated by Dr. Jacobs himself.
The plan was highly suspect from the very beginning, and tensions on both sides ran rather high. Shortly after the City Council voted to approve the plan, I wrote a piece explaining how the plan could very well be found illegal, laying out the several ways that the plan was legally flawed.
Turns out that Judge Taylor agreed, at least in part, reaching “the reluctant conclusion” that in approving the Plaza de Panama plan, the City did in fact violate city law. In order to approve the project, city law clearly states that the City Council must find that there is “no beneficial use” for the property; that without the Jacobs plan, Balboa Park would be useless to the public, the entity for whom the park exists.
“To approve the bypass (Centennial) bridge,” SOHO attorney Susan Brandt-Hawley wrote in an email last July, “the City has to find that a denial of that bridge would result in the loss of all reasonable “beneficial use” of the Park. That is what the municipal code says. The code is written to deter adverse impacts to important historic properties, so it only allows such impacts if otherwise the property would have no reasonable use.”
“The court reaches the reluctant conclusion that the City violated section 126.0504(i)(3) of the Municipal Code, because there is no substantial evidence in the record as a whole supporting the determination that there is no reasonable beneficial use for the project area absent approval of the project,” wrote Judge Taylor in his decision.
In the wake of the ruling last week, Dr. Jacobs made good on his promise to withdraw his support. Jacobs told KPBS that he had not seen any alternative plans to remove traffic from the Plaza de Panama while “still serving the needs of the museums and other institutions inside Balboa Park” that met his requirements for his support.
The Plaza de Panama plan’s demise was entirely predictable. It’s not that the public does not support making improvements to Balboa Park. They do. And it’s not that the public doesn’t appreciate the generosity of Dr. Jacobs in his offer to contribute $25 million out of his own pocket to make those major improvements. His motivations aside, it was an incredibly magnanimous gesture, one for which he would derive no direct benefit other than to cement his legacy and his place in San Diego history.
The trouble stemmed entirely from the process, and the perception Dr. Jacobs tried to sledgehammer his own desires through the City Council. This was the plan, take it or leave it. He made it clear all along that failure to accept the development plan as presented, with no modifications, would result in his decision to remove his support for the project altogether. It came across as a very rich guy holding the city hostage in order to get his way.
But there were other alternatives, including the original Balboa Park Precise Plan put in place more than 20 years ago but never acted upon. No other alternative, however, was given serious consideration by Jacobs and the Plaza de Panama Committee.
“We did not hear any response regarding what changes to the project were made since the beginning of the process,” former City Councilwoman Donna Frye told me last July. “The public process involves some give and take. If there were no significant changes to the project during its development, it indicates that this was pretty much a done deal,” she said. “The public hearing process, in that case, was more of a show than anything else.”
It was noted that the Plaza de Panama Committee held some 200+ public meetings on the renovation of Balboa Park. But those meetings would appear to be more informational rather than collaborative. Just because the Committee held those meetings doesn’t mean that they accepted and integrated any input from any other participants.
“While the major elements of the Plaza de Panama project did not change, many details were changed because of the public input received,” said Katie Keach, the Deputy Chief of Staff for City Councilman Todd Gloria in response to an email inquiry. However, Keach did not identify what details were changed.
No other member of the City Council responded to my request for comment.
Jacobs’ take-it-or-leave-it ultimatum is what ultimately killed the plan (at least for now). Had he and his Plaza de Panama Committee been more open to suggestions, more amenable to less invasive—and less expensive—options, we might not be where we are today, and the project might still be moving forward in a manner that did not by necessity violate the city’s Municipal Code.
Which brings us to the shocking arrogance of the San Diego City Council, particularly that of new Council President Todd Gloria. The City Attorney, at the behest of the City Council, argued that the judge could simply ignore the law, that there can be “’unreasonable beneficial uses’ which the City is free to reject in favor of the one deemed more beneficial,” explained Judge Taylor in his ruling. “Respectfully, this strikes the court as re-writing the Municipal Code. The City Council did not enact language permitting alteration if it determined that the proposed alteration would result in a more reasonable beneficial use; rather, it required that there be no reasonable beneficial use absent the alteration,” he wrote.
“The City abused its discretion in making the finding of “no reasonable beneficial use of a property,” Judge Taylor concluded.
But that is not going to deter Gloria, who is asking the City Attorney to find a way around the law, including the possibility of issuing an exemption to the city’s Municipal Code. Gloria essentially thinks that the City can and should ignore its own laws, despite the fact that Judge Taylor explicitly noted in his ruling that the City must follow its own laws, which demonstrates an egregious lack of judgment on Todd Gloria’s part. And it is this kind of arrogance that allowed such a flawed plan to pass through the City Council in the first place.
This attitude—the belief that the city can violate its own laws when it is deemed convenient to do so—should ring alarms for all residents of San Diego.
The plan was also likely to cost the taxpayers of San Diego tens of millions of dollars, as there was a provision in the original agreement between the City and the Plaza de Panama Committee that stated that if the cost overruns for the project exceeded 3% of projections, the Committee could opt out altogether and the city would be left to cover the entire cost. It was also nearly a sure thing that the paid parking structure would fail to meet the Committee’s revenue projections, which would result in a loss of almost $1 million or more annually out of the city’s general fund.
This was a deeply flawed plan from the beginning, made so because the outcome was predetermined by the Plaza de Panama Committee and validated by a complicit City Council.
It’s a shame that Dr. Jacobs put himself in a position to be so maligned, but the reality is that he has no one to blame but himself. He wanted to do something good for the city, and for that he should be commended. But it was the manner in which he wanted to impose that good that brought such negative attention in his direction. It didn’t have to be this way. It could have and should have been avoided if he and the Committee had been more open minded, prepared to accept input from other stakeholders. Instead, proponents of the plan held an audacious assumption that they were above the law and beyond accountability to the general public to whom the park belongs in the first place.
There’s a reason laws exist. Simply because someone is rich and powerful does not mean they should be allowed carte blanche to circumvent those laws, no matter how good their intentions.
Andy Cohen
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The only detail I could add to this excellent summary by Andy Cohen is to observe that the Plaza de Panama project has *already* cost taxpayers at least $1 million in City staff time.
The next question – are we still on the hood for the $17 million bond issue that Council approved for the Organ Pavilion parking lot structure? I don’t see how that structure will cost us only $17 million when San Francisco’s Golden Gate Park underground parking garage, only 8 spaces larger than that proposed for Balboa Park, cost $64 – a number of years ago!
Here’s the actual Municipal Code language for the Finding which Judge Taylor ruled can’t be “Found” legally:
Section 126.0504(i)(3)
The denial of the proposed development would result in economic hardship to the owner. For purposes of this finding, “economic hardship” means there is no reasonable beneficial use of a property and it is not feasible to derive a reasonable economic return from the property.
This is a GREAT article!!! Thank you! I would differ w/ you on Jacobs and his “magnanimous” donation. Although jacobs has made donations to things in the past I sincerely doubt this was a donation and was actually an investment. His plan opened Balboa Park up to all sorts of abuse profiteering and development and I bet you anything Jacobs was getting something worth far more than $25 million dollars out of it.
This plan set the stage for acreage to be ceded to development plain and simple and that is and was the plan all along. These people dont give a DAMN about removing cars. This is a multi-billion dollar real estate deal and Im not getting why the public is so slow to get this.
Christine-
There is no evidence anywhere that Dr. Jacobs was going to profit in any way from the Plaza de Panama project. The park would still be entirely owned by the City of San Diego. Any assertions that it would open the park up to new development was pure, unfounded speculation on the part of project opponents. Prevailing law would still be in place, specifically preventing the city from ceding ownership in any way to private enterprise for private gain. There have been no changes proposed to change the park from its original purpose “to be held in trust by municipal authorities forever for the purpose of a park.”
Criticize the plan, as I have. But to question the motives in this manner I believe is unfounded. There simply is no way the city could legally sell the park to private interests for private purposes. Any attempts to do so would surely be thwarted by the courts.
I don’t think Mr Jacobs himself was in a position to profit himself. But the only people he was trusting and listening to we’re people who had the chance to profit: Ace Parking, Cohen Restaurant Group, the contractors and architects, etc. Had this gone through, each of the museums would have added a café on the Plaza: the Mingei, the Timken, the Museum of Man, and the Art Museum Café would have expanded out. It would not have been open plaza space but a whole series of food places. There were probably some food vendors who were already in negotiation that feel they lost business.
Yes, so true. The numbers of non-profit- and profit-making businesses would have soared and the Plaza would have become impenetrable by foot.
Todd Gloria has blocked me on his Council page for criticizing his support of PDP. He apparently thinks the 1st amendment is a “technicality” too. I hope people will finally stand up to Todd and stop thinking he’s a “good guy”. He’s not a “good guy” and never has been. he doesnt care about his district, his constituents or the law. he cares about his secret bank accounts Delaware LLcs.
The First Amendment restricts the government’s ability to control speech. It does not apply to a politician’s choices to edit the comments that appear on his personal Facebook page. That is why you cannot win a lawsuit here.
The same goes for a newspaper: It is not violating your First Amendment right when it refuses to publish your letter. The same goes for a radio station: It is not violating your First Amendment right when it refuses to give you your own talk show. The same goes for Congress: it is not violating your First Amendment right when it refuses to allow you to give a State of the Union speech before it.
The only thing missing from this slanted diatribe is Bruce Coons’ byline. Mr. Cohen clearly drank his SOHO Kool-Aid. All SOHO has accomplished is assure that cars will remain to clog the plazas for another 90 years and the 2015 celebration will have no place to celebrate. It’s a lose-lose for San Diego and Balboa Park.
Feelings do run high on the issue of the PDP but, Evan F., every person I’ve spoken to who is opposed to the Jacobs Plan also opposes cars in the Plaza. Don’t demonize the efforts of SOHO and really concerned residents who love the Park; a lot of people have been awakened to the need to humanize what was becoming a cash machine.
There are other plans that will remove cars from the Plaza. Along Park Boulevard there’s lots of room for garages. We could try building one in the Zoo Parking Lot, which is already an eyesore. Or, we could put several downhill and out of sight on the east side of Park Boulevard, just across from the existing Zoo parking lot, or we could put cars just north of the two Navy Hospitals.
The Park’s west side, with its grand Cabrillo Bridge is the celebratory, collective and public entrance. Changes to its west side can’t be made without damaging that old grandeur. Park Boulevard is the way crowds can get to the park in their cars. That’s how it got its name.
Evan, You haven’t a shred of hard evidence that now that this flawed bully plan has finally and correctly been deemed illegal, the park will languish and be clogged with cars for 90 years. That is clearly a sore loser statement. Mayor Filner has already proposed the idea of shuttles from the periphery of the park bringing in people which will make the park a lot of fun especially if they are like old trolley cars. I can’t wait for the new improved changes that will be coming through another plan with an aesthetic and historical sensibility. It will be wonderful! Andy thanks for the great article which is just the plain unadorned truth about what this fiasco was all along!
It seems that the City Council was hoist on its own pitard. If the law says that the plan couldn’t go through unless there was absolutely no beneficial use of Balboa Park without its going through, you would think that the lawmakers, (ahem, I think that’s the City Council) would have changed the law a priori.
Be that as it may, this is a good example of Murphy’s law” “No good deed goes unpunished.” Dr. Jacobs does not need to add his name to one more municipal monument in order to insure his legacy to the City of San Diego. He’s added his name to virtually every other civic monument already. Let’s see … the Symphony, UCSD, a medical center at UCSD, KPBS, the new downtown library, the Food Bank, the La Jolla library. I’m sure there are lots more … like they say, too numerous to mention.
If Bruce Coons and SOHO had pushed as vigorously for some other plan as they pushed to defeat Jacobs’ plan, then maybe we could have had a runoff between competing plans. But as it was, people criticize Jacobs for not promoting some other plan or incorporating other features into his own plan as if they didn’t want to lose Jacobs’ money by proposing a plan of their own. They wanted him to change his plan to their liking and still have him pay for it. No one else proposed a plan and promoted it as forcefully as did Jacobs. For this they criticize him? But where are the proponents of some other plan pushing their plan as forcefully? Instead they devoted their energy to criticizing Jacobs.
Finally, I hope eliminating cars from Balboa Park is not seen as something that can’t be done because the Park will not have “no beneficial use absent the alteration.” This legal gobblygook has certainly caught the City Council flatfooted. And probably pissed off one of the greatest benefactors the city has ever known. All that needs to be done is to close off the traffic route through the park and provide beefed up tram service from the periphery.
John, you’re missing the point: It’s not that anyone wants to bend Dr. Jacobs to their will. The point is that there is a process, and instead of going through the process, the Plaza de Panama Committee and the City Council went through the motions. There are other alternatives to the Jacobs plan, such as the existing Balboa Park Master Plan, and several options outlined in the EIR. There might even be some minor adjustments to the Jacobs plan that might make it work. But they never seriously considered any of those options. This was the plan he wanted; something grandiose; something expensive. There were obvious obstacles, and they along with the majority of the City Council decided that they didn’t care.
Had they gone through the process in an honest fashion, Balboa Park would be getting a facelift at this very moment.
John Lawrence, you mean had SOHO pushed for the SOHO lite plan? Or the Lewis Plan. The plans that were pushed for at every single turn? Those plans? These plans?http://sohosandiego.org/main/plazasohosplan.htm And both had funding plans with them. But please, lets not make this all about Dr Jacobs though, it is really about the City council and ex mayor, they never helped Dr Jacobs by explaining what the public process entails. They hung him out to dry,knowingly.They provided him with the worst advice as did all of his consultants who only wanted to pick his pocket.
I agree; it should have been handled much better. I think the City Council only saw dollar signs in front of their eyes. In one sense you can hardly blame them because the city in and of itself hardly has the money to do anything. Therefore, they have to rely on billionaires like Dr. Jacobs. He at least deserves credit for trying. He could just as well have sat back and ate bon bons at this point and said to hell with helping anybody like a lot of other billionaires.
Is there going to be a push at this point for another plan that will get automobile traffic out of the park?
Andy is 100% correct on this and yes John we will get the parking out of the plaza.
How about the car traffic out of the core of the park?
We could do it with managed traffic like many other parks.
Many thanks for your original article, and for your measured and thoughtful moderation of the discussions it has inspired. That being said, and meant sincerely, I want to add to your discussion with Christine, that there are many ways to “sell” a free public resource, and converting Balboa Park’s lots to “managed parking” is one of them.
Since the Jacobs Plan was first announced more than two years ago, one of its most ardent and socially influential supporters has been Dr. Jacobs’s longtime friend Malin Burnham. Burnham’s daughter is the wife of Scott A. Jones, the Chairman and Owner of Ace Parking Management. Burnham’s grandson, Keith Burnham Jones, is the Managing Principal of Ace Parking, and Keith’s wife Megan is a Human Resources officer at Qualcomm.
These well known close connections may or may not have something to do with the unusually fierce intractability displayed by Dr. Jacobs, Mayor Sanders, and the various consultants who were paid by Dr. Jacobs, whenever alternatives to managed parking were proposed. Any proposals that did not include paid parking were always immediately rejected, and as the months rolled on, with increasing vehemence.
To this day, the Jacobs Project boosters still cling to their absurd fiction that only the new Organ Pavilion Parking Structure would be a fee lot. But the City’s own analysis of the projected parking fee revenues disclosed that the planners had inflated their income estimates for that lot, and more realistic estimates showed that, by itself, the Parking Structure revenues would be insufficient to pay off the bond funding its construction. The very cost of the project, which rose from an initial estimate of $25 million to more than $45 million the Thursday before the City Council hearing, would seem to guarantee the “necessity” of paid parking in all the Park’s lots.
Weeks before the City’s revenue analysis was made public, the Jacobs Project construction phase documents were distributed to a meeting of the Balboa Park museums and other tenants. These documents included a Central Mesa site plan depicting the completion of all construction phases, and which diagrammed a division of all of the Park’s public parking lots into “Phase A” and Phase B” zones (excluding the Zoo’s lot, which has its own contract). These “Phases” have been interpreted by several planners to indicate conversion of ALL of the parking lots to “managed parking,” which would be the only reliable way to get the public to use any paid parking in the Park.
When questioned at several public meetings about the oft-cited $5 parking fee for the new Parking Structure, both Park administrators and the Jacobs consultants were quick to state that “any final decision about parking rates” would be made by the City Council. If past decisions on that point are any indicator, higher fees would seem likely, such as the $18 per day fee one pays to park in the Civic Center Parking Tower, also managed by Ace Parking.
Since Ace Parking Management is privately owned, it seems to be impossible to ascertain who, if any, its private investors might be. But one thing appears certain. If the Jacobs Centennial Bypass Bridge and its “essential” parking structure finally get built, the greatest financial benefit of Dr. Jacobs’s “public generosity” will go to Ace, and to whomever its owners and private investors might be.
Well, six months have passed and the plaza is looking pretty good, pretty quiet, spacious, and pedestrian-friendly without having to spend $45 million of Mr. Jacobs’ and the taxpayers’ money. Nor will we, the residents, who use Balba Park 12 months a year, be faced with paying for parking in the same public space we now park for free as part of the benefits conferred by taxes we already pay. Thank you, former Mayor Filner, SOHO, and Judge Taylor.