It was buildings like this on Pescadero Ave in Ocean Beach that spurred on support for Prop D.

Introduction: This is the second part of my series on the 30 foot height limit. This would have been published earlier except for a medical issue, so I offer my apology.

At the risk of encouraging the critics of the height limit by continuing the discussion of the effects and value of the 1972 citizens’ initiative, this is meant then to demonstrate to those same critics the tunnels that have already been dug in and around and under the 30 foot standard, as well as informing the fairly new generations of citizenry and those uninitiated observers of San Diego development.

In Part One, I discussed how some of these tunnels have been dug underneath the height limit on San Diego’s coastal areas over the decades, outlining several serious breaches of the seemingly sacrosanct restrictions on building heights. Feeling that the ongoing online discussion on the issue with Voice of San Diego (see part 1) wasn’t complete without some kind of acknowledgement of how tunnels have already been dug under the 30 foot limit.

Here is what I wrote in Part One regarding the exceptions made over the decades:

The very first exception made was downtown San Diego – which included parts of Little Italy – this was implicit in the ballot proposition itself. Today, of course, this is a very, very BEEG deal. In 1972 the San Diego skyline was very different. All one has to do is check out the harbor downtown to see how this exception worked out.

There have been other exceptions since the early Seventies vote. These include exemptions for SeaWorld, the Mission Brewery, the San Ysidro Gateway to the Americas – all specific pieces of property -, and the judicially-caused exemption for Liberty Station (aka NTC). Other places must have been grand-parented – such as UCSD – which has been building towering edifices for decades.

These exemptions were examined to remind critics of the 30 foot height limit – who blame high rents and property values at the beach and congestion inland on the restriction that applies just to the coastal areas – that indeed the limit has been undermined numerous times over the years, and that it is not treated with the respect it is due.

The SeaWorld and Liberty Station exemptions stand out as particularly egregious slaps in the face of the voters who overwhelmingly approved the people’s measure 41 years ago, called Prop D, which was upheld by the California Supreme Court.

Let us move on.

Grades and Measurements

No discussion of the 30 foot height limit is near complete without discussing ways that individual developers and builders and the City of San Diego itself have gotten around the height restrictions.

Once the 30 foot height limit was accepted and exercised for the coastal zone of San Diego by the mid-Seventies, it didn’t take long for developers and bureaucrats to find ways to circumvent its strict requirements.

Two of the primary ways to get away with actually constructing a building higher than 30 feet was or is to jiggle with how and where you do the measurement, and importantly, which grade do you measure from, the “original” grade or the “finished” grade. For some, the measurement was an “average” height, for others you took the measurement from the low point on the property.

These factors have been repeatedly pointed out by some of those involved in the recent online debates over the 30 foot limit, and who have been involved in the issue historically. We’ll look at some of these comments.

Dave Little, in a Letter in the Peninsula Beacon back in 2010, a trustee of the La Jolla Community Planning Association, and a strong and consistent defender of the 30 foot height limit has offered these insights:

Have you ever stood in front of a building in the Coastal Zone where the 30-foot height restriction is supposed to apply and thought the building you were looking at had to be higher than 30 feet? Chances are it was.

Developers began interpreting the word “grade” in the original language of Proposition D, the 30-foot high building limit for the coast, as the finished grade, not the existing grade. That meant the developer could pile up dirt and raise the height of the building to pretty much any level he or she desired — that is, 32, 34, 37, feet.

And this is true – to a great extent. For years, the City used the measurement to the “finished” grade, and not the “original” or pre-existing grade. And where that measurement is taken has changed over the years as well. City staff, developers, and planning committee members have all had different interpretations of Prop D. So, there’s been confusion as these different interpretations have battled one another over the years. The City finally stepped in and took control of how building height measurements are taken in the coastal areas under the rule of the 30 foot height limit.

A mangled copy of the original Prop D.

Prop D itself – its language – has not helped the confusion. When it passed overwhelmingly in 1972, voters decided to enact all of it, and it defined how the 30 foot measurement would be taken:

“The base of measurement of the height shall be in accordance with the Uniform Building Code of 1970.”

In 1970, the Uniform Building Code spoke of building heights in terms of measuring the height from the highest point of the structure to the base which is the “finished grade”. This slip of the Prop D organizers was probably not a mistake, just an oversight of the development years down the road of what they worked for …. and in the end, the ordinance itself allowed developers to pile on dirt on the l0t before taking the measurement.

This manner of measurement – to the “finished grade” or surface – is affirmed by a City of San Diego Planning and Development Review Newsletter published in July 1999, specifically on “Determination of Building Height”, which states:

“… the base of measurement shall be in accordance with the 1970 Uniform Building Code ….”

Using the finished grade for measuring the 30 feet is also affirmed by this 2006 Memo from Michael Aguirre, then City Attorney. The memo states:

The proper method of measurement, per Proposition D, is in accordance with the Uniform Building Code of 1970. This office has previously opined that for the purposes of complying with Proposition D, measurements should be from the finished grade of a site, rather than the pre-existing grade.

To the City’s credit, it recognized problems in taking the height measurements using the finished grade, particularly for buildings on slopes, and certainly the coastal zone and all its canyons, cliffs, hills, and bluffs – provides many slopes and views to build on and for. The city realized that this was not the intention of the voters when they overwhelming passed Prop D, the 30-foot high building limit for the coast.

So, it changed the method of measurement and changed it to using the existing grade or proposed grade which ever is lower. The City did this by supplementing the language of the original Prop D so as to force developers to meet the voters’ intent. The current supplemented code forces the developer to measure 30 feet from the finished grade or the existing grade — whichever is lower.

In order to flesh out the discussion, I emailed a number of past and current members and chairs of a few planning committees in the area, including the OB Planning Board and the Peninsula Planning Committee, asking if anyone had experienced or seen projects where they believed the developer was jiggling the grade and or the measurement. These are folks who by sitting on the planning bodies have dealt with the realities of the efforts to circumvent the height limit, and are not only aware of the issue on a theoretical basis in front of their keyboards, but in the day-to-day world of construction and remodels. A number responded and responded in the affirmative, that ‘yes’ they had experienced examples of where developers got around the 30 foot height limit.

When I asked different planners here in the Peninsula, if they had seen projects where the City allowed the developer / owner to build using the “finished” grade, and measuring the 30 feet from there, one former chair of the Peninsula committee responded:

Yes. absolutely. completely changing their ‘original’ definition.

Since 1999 increasing the grade has been a repeatedly debated issue in all parts of our Peninsula community. The use of ”ways of measuring the grade” which was once ‘clearly defined,’ also seems to have changed, several times since I’ve been involved on the planning committees.

In addition, a former planning committee chair told me, that a project on the corner of Plum and Lowell in Point Loma had “shenanigans of this nature”, in that the grade was built up and the measurement wasn’t taken from the original grade. The planner recalls the builder getting caught because a nearby neighbor got involved and made it an issue, and it was changed.

Another planner recalls a project on Lucinda Street where the architect was caught changing the elevations on a series of plans, all violations of the 30 foot height limit.

Ocean Beach planners have been grappling with developers throwing up new construction or remodels on bluffs or on the western slopes of Point Loma, especially where the bluffs are much higher than the streets, like on Pescadero and Coronado Avenues. One long-time OB planner told me that the Board wanted to use the street elevation as the base measurement point. But the developers wanted to measure the 30 feet from the “natural” elevation, even if on a bluff. The result is striking – huge mansions soaring over the streets, sometimes 40 feet or more below. She said:

People have definitely taken advantage of bluff elevation.

A Point Loma planner wrote me and said:

The problem with measuring the height on a slope has to do with the necessary surveys that are supposed to take place. … What the City requires regarding a survey from an owner is not enforced and without a proper survey, before the design is done, the grade can be adjusted higher. Unless a knowledgeable neighbor notices what is going on, they get away with it.

This raises another wrinkle in the enforcement of the 30 foot height limit: inadequate City staff. As one former planning chair said:

We have heard from City Staff, that the City’s “pre-building inspectors do not check anything more than the drawings” as they have in the past for compliance before permits are issued! Most times, they haven’t even ‘looked at on site, the slopes in contention! This is the problem.

Another former chair agrees about the City not checking actual conditions on a property. He’d been involved with helping a property owner who had a neighbor who applied to the City “to rebuild a termite infested garage” on a zero lot line. The City approved the neighbor’s project of rebuilding the garage. Problem was – there hadn’t been a garage there for 20 years; the city just didn’t check it out. His story continues:

When we contacted the City, they said … they do not have the staff to check existing conditions on a property and have to take the owners word that the information on the plan application is correct.

The only way they will know anything different is if someone from the community alerts them. The problem in this case was that we did alert them and it fell on deaf ears, which is not at all unusual.

This community planning leader also stated:

The problem with measuring the height on a slope has to do with the necessary surveys that are supposed to take place. This was what I discovered on Lucinda. What the City requires regarding a survey from an owner is not enforced and without a proper survey, before the design is done, the grade can be adjusted higher. Unless a knowledgeable neighbor notices what is going on, they get away with it.

Two former chairs also complained to me about how some local architects and developers “who can’t seem to ever ‘stay within the rules’, always pushing for more ….”

One planner said:

One wonders why so many other architects are fine and work ‘within the rules’, yet so many ‘consider themselves special’ asking for far more than a ‘minor variance’ and keep ‘coming back’ for variances with additional projects, requiring similar ‘grade level variations’. It’s not as if they ‘don’t know’ the rules, then, is it?

Another admitted:

There are a number of architects who work in the Pt. Loma area who are expert at helping developers circumvent the laws.

Variances

One time-honored path for getting around community building requirements is for developers and owners to request “variances” for their projects and remodels. In Ocean Beach, for example, the City staff have been granting variances to some property owners that allow them to get around OB’s blueprint for community development, the OB Precise Plan. It’s gotten so bad in OB that the Planning Board has called for a “Moratorium” on variances in one area of northwest OB particularly stressed with pressures of gentrification. The Board has been inundated with requests for variances.

Although construction applicants have not often used this method to tunnel under the 30 foot height limit, it does happen. Dave Little from La Jolla has examined this issue in a December 2010 post at VOSD entitled No Variances on the Thirty-Foot Height Limit:

… The Bishop’s School in La Jolla wants an exemption from Proposition D and its supplementary code to build a 32-foot building. They want to revert to measuring from the finished grade.

If this exemption to the current code is allowed by way of the “variance” process, it will set a precedent for the Coastal Zone, and developers will happily revert back to measuring from the finished grade and again build 32, 35, 39-foot buildings.

If this variance is granted, similar variances cannot be denied to other developers. As time progresses, your peek-a-boo view will disappear, the winter shadow of the adjacent building will come further over your property and the wall of condos along the beach will grow a few feet higher as more variances are granted.

The La Jolla Community Planning Association (LJCPA) recommended the denial of this project, and the San Diego Hearing Officer approved it.

This demonstrates how local planning committees, made up of volunteers, whose members change with the seasons, have been buffeted with demands and pressures from developers, who can afford to hire professional staff to do their planning, PR, and presentations.

There is no question that planning boards and committees are at times manipulated by developers with financial interests at stake in whether certain projects are approved and built. Developers have placed friends and relatives on some of these boards. This can happen when community members ignore their own planning bodies or are ignorant of the planning issues of their particular neighborhood.

Another complaint from Peninsula planning leaders is about city staff themselves. One chair wrote me:

After many experiences with the City, I can say that they will do anything within their power to allow a development despite any information they receive. If you ever watched the process before the Planning Commission or City Council, City Staff always sounds like they are working for the developer instead of providing an objective report. The language they use is completely unprofessional as they praise projects.

Today, the original Prop D is codified in the San Diego Municipal Code at section 132.0505 and the section has been amended numerous times. Its pertinent language goes:

(a) Notwithstanding any section to the contrary, no building or addition to a building shall be constructed with a height in excess of thirty feet within the Coastal Zone of the City of San Diego.

And even though the statute says that “the base of measurement of the height shall be in accordance with the Uniform Building Code of 1970,” which as stated earlier, takes the measurement from the “finished grade”, another statute corrects this. Section 113.0270 of the Municipal Code states “grade” is either the existing or proposed grade, which ever is lower.

Assaults on the Height Limit

Newly-elected Congressman Scott Peters warned us five years ago, back when he was on the Port Commission:

Every few years, community activists warn of an assault on the 30-foot height limit. Proposition D remains as strong as when it was approved by voters, regardless of disputes over how the 30 feet is calculated; community plan updates which critics contend will weaken the height limit; amendments to planned district ordinances; or the new state-mandated affordable density bonus.

A former chair of the OB Planning Board said:

I want to take all the criticism of the 30 foot height limit, drive a stake right through its heart and bury it deep.

Despite all the troubles caused by confusion, frustration and down-right hatred of the 30 foot height limit, it has survived all these years. Recently, the OB Rag ran a poll about attitudes on the 30 foot limit and found that 3 out of 4 respondents supported it:

In a recent OB Rag poll, nearly three out of 4 respondents indicated their support for the thirty foot height limit – with a good portion wanting to see the limit extend throughout the City of San Diego.

58% supported it and agreed that it was “passed in the public interest by the public”; another 15% want to see it “expanded throughout much of the rest of” San Diego, and obviously support it, for a supportive total of nearly 73%.

How the City Takes Building Height Measurements

So as to dispel all confusion, the City a year and half ago, outlined the procedures for taking building heights in the coastal zones. Staff prepared a slide presentation for the Land Use & Housing Committee in September 14, 2011. Here is the outline:

From City of San Diego Presentation on Height Limits

City of San Diego Height Regulations

Height Regulations

* Zoning: Structure height must comply with base zone height limit (citywide requirement)

– Base zone height limit varies (24 ft to unlimited)

* Prop D: A voter approved height limit (30 ft) that applies to coastal development in geographic are generally west of Interstate 5.

– Coastal Height Limit Overlay Zone

* Most restrictive height limit applies

Prop D Coastal Height Limit

* Local initiative passed by the voters of the City of San Diego (effective December 7, 1972)

* Limits development to 30 foot maximum height (in accordance with Prop D measurement)

* Development over 30 feet (per Prop D measurement) requires approval of City of San Diego voters.

Limitations of Prop D

• 1970 UBC is method to demonstrate compliance

– Measured from finished grade

– Therefore, allows grade to be raised with measurement beginning at that higher point (10 ft max differential)

• Prop D alone would not be adequate to implement the City’s certified Local Coastal Program

• In low density residential zones, base zone height limits are typically more restrictive than Prop D to

implement adopted land use policy

Citywide Method for Calculating Zoning Height

• Two part measurement required:

– Plumb Line

– Overall Height (5 feet from furthest projection)

• Height is measured to highest appurtenance (plus up to 10 ft for grade differential)

• Measurement is taken from existing grade or proposed grade, whichever is lower

• Can’t manipulate grade to achieve greater height

Summary

• Development in the Coastal Height Limit Overlay Zone must comply with the base zone height limit AND the Prop D coastal height limit

• The two height limits are measured differently

• Development that exceeds the base zone height limit requires a City variance /deviation approval

• Development that proposes to exceed the Prop D height limit requires a public vote for approval

Prop D has survived, despite the tunnels dug to undermine it. But as money drives development in the coastal areas, there will continue to be pressures on the people’s ordinance, and developers will continue to find ways to circumvent its standards. Yet, the more who are educated and aware of the issues and its history, the more who will appreciate the effects that preventing a wall of buildings at the beach or on the cliffs is in all of our interests.

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Frank Gormlie

A lawyer and grassroots activist, I was finally convinced by Patty Jones to start the OB Rag, a blog of citizen journalists, after she got tired of listening to my rants about the news. Way back during the Dinosaurs in 1970, I founded the original Ocean Beach People’s Rag - OB’s famous underground newspaper -, and then later during the early Eighties, published The Whole Damn Pie Shop, a progressive alternative to the Reader.

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