On July 28,2010, the Hearing Officer of the City of San Diego approved the development's Coastal Development Permit, Site Development Permit, Tentative Map Waiver, removed the city required Variance along with the associated findings, and added conditions for additional offsets along the building's east elevation and stipulation for compliance with La Jolla Community Plan's Commercial Development Recommendations.
On August 10, 2010 the La Jolla Community Planning Association and on August 11, 2010 Mr. Segal, and La Jolla Shores Tomorrow filed appeals of the Hearing Officer's decision.
On September 9, 2010 the Planning Commission of the City of San Diego considered the appeal issues as identified in the Report to the Planning Commission No. PC-IO-079. The Planning Commission voted 5-1-1 to certify the Mitigated Negative Declaration No. 182513 and adopt the Mitigation, Monitoring, and Reporting Program; and denied the appeals and upheld the Hearing Officer's decision to approve the development permits. (If you would like to view the video of the Planning Commission's September 9, 2010 meeting please click on the following link and advance the time to 17:50.)
On September 22, 2010, La Jolla Shores Tomorrow and on September 23, 20I0, Mr. Segal filed separate appeals to City Council regarding the Planning Commission's environmental determination for the Whitney Mixed Use Project's Mitigated Negative Declaration (MND) No. 182513.
On November 16, 2010, the City Council considered the appeal issues of the environmental determination as identified in the Report to the City Council No. 10-150. During the City Council hearing, however, La Jolla Shores Tomorrow's attorney, Julie Hamilton, conveniently provided various new documents to the Councilmembers, Staff and to us just before and during their public testimony. These new documents were letters from Geissler Engineering (geological engineer) and Federhart and Associates (traffic engineers). Due to this new information, Councilmember Lightner, during her motion to approve the appeal and remand the project back to Planning Commission, noted that City staff should evaluate the new evidence presented by the appellant. Additionally staff should re-examine whether the aesthetics and neighborhood character had been adequately addressed in the environmental document as it relates to the bulk and scale, neighborhood compatibility, and aesthetics. The motion was further amended by Councilmember Emerald to request City staff to also review the new letter prepared by Federhart and Associates regarding traffic safety for the project. Both the Geissler Engineering and Federhart and Associates new documents were not provided to City staff, Councilmembers or to us prior to the Council hearing as required by the City Clerk. The City Council voted 5-3-0 to grant the appeal; denying certification of Mitigated Negative Declaration No. 182513; setting aside the environmental determination and remanded the matter back to Planning Commission. ( If you would like to view this video of the City Council's November 16, 2010 meeting please click on the following link and advance the time to 3:22:15.)
On January 20, 2011 the Planning Commission, by a 5-0 vote approved Staff's Recommendations to certify the Mitigated Negative Declaration No. 182513 and Adopt Mitigation, Monitoring, and Reporting Program and Approve Coastal Development Permit No. 662551, Site Development Permit No. 662678 and Tenative Map Waiver No. 683254. Watch La Jolla Community Planning Association's, unofficial attorney, Julie Hamilton and LJCPA Trustee Phil Merten try to defend the false and misleading images they showed to the Planning Commission.
(If you would like to view the video of the Planning Commission January 20, 2011 meeting please click on the following link and advance the time to 5:48:15.)
Pursuant to San Diego Muncipal Code the Planning Commission decision should have been deemed the final action. Chapter 11 Land Development Procdures § 112.0520 Environmental Determination Appeals (g) states: "If the decision on remand, in accordance with section 112.0520(d)(3), results in the same type of environmental document, such decision shall be deemed the final action". (Added 7-26-2004 by O-19303 N.S.; effective 8-25-2004).
On January 27, 2011 Joe LaCava, as President of the La Jolla Community Planning Association, filed an environmental appeal of the Planning Commission's second approval of the Whitney Mixed Use Project's Mitigated Negative Declaration (MND) No. 182513. The action taken was without public notice, public debate or public vote by the LJCPA Trustees.
The LJCPA is a recognized community planning group that makes advisory recommendations on land use project to the City. As such, the LJCPA is subject to the Brown Act, California Government Code sections 54950 through 54963, which is specifically incorporated in City Council Policy 600-24 - Standard operating Procedures and Responsibilities or Recognized Community Planning Groups and the LJCPA Corporate Bylaws, adopted and effective March 5, 2009. The Brown Act requires that all actions of public bodies be taken openly and that their deliberations be conducted openly (Cal. Gov. Code Section 54950 and LJCPA Bylaws Article 1, Section 7). The LJCPA is not allowed to discuss, debate or take action on non-agenda items (Cal. Gov. Code Section 54954.2 and LJCPA Bylaws Article VI Section 1.A). Furthermore the LJCPA is prohibited from attempting to develop a collective concurrence of its Trustees, directly or indirectly, other than at a properly noticed public meeting (Cal. Gov. Section 54952.2 and LJCPA Bylaws Article VI , Section 2.A.9.).
If by chance, the action taken by Mr. LaCava could be construed as not in violation of the Brown Act, the LJCPA's Appeal Policy nevertheless states; "Filing shall be ratified at the next meeting of the LJCPA; otherwise it is to be withdrawn", The appeal was not ratified at the LJCPA February 2011 meeting.
On March 2, 2011 the LJCPA was issued a "Cure and Correct" letter. The letter informed the LJCPA Trustees there was no noticed meeting, agenda or minutes of the LJCPA which reflect action by the LJCPA to either authorize or ratify the January 27, 2011 environmental determination appeal filed by Mr. LaCava. Pursuant to Government Code Section 54960.1, we demanded the LJCPA cure and correct Mr. LaCava's illegal action involution of the Brown Act, Council Policy 600-24 and their city approved bylaws by withdrawing the environmental determination appeal.
Mr. LaCava's course of action to deal with the "Cure and Correct" letter was to have the LJCPA suspend their Appeals Policy specifically and solely for item 13 on the LJCPA March 3, 2011 agenda. The suspension of the LJCPA's Appeal Policy, however had not been posted on the agenda 72 hours prior to the public meeting as required by the Brown Act, City Council Policy 600-24 and the LJCPA Bylaws. The Brown Act allows a legislative body, in specific emergency situations, to place items on the agenda, if 2/3 of the Trustees or (100% if 2/3 is not available) vote to add the item. Based on Mr. LaCava's coaching Trustee Gabsch made a motion to suspend their Appeal Policy, specifically and solely for Item #13 on the agenda. Despite the fact the LJCPA did not obtain the necessary votes, as required by the Brown Act, a vote was taken, the LJCPA Appeal Policy was suspended and the illegal appeal was ratified. Despite vigorous attempts to invalidate the appeal, the appeal was incorrectly supported by Ms. Andrea Dixon, Deputy City Attorney and allowed to proceed.
On May 3, 2011 the San Diego City Council for the second time considered the environmental determination of the Mitigated Negative Declaration No. 182513 for the Whitney Mixed Use Project. Staff once again recommending City Council to certify the Mitigated Negative Declaration and Adopt Mitigation, Monitoring, and Reporting Program and Approve Coastal Development Permit No. 662551, Site Development Permit No. 662678 and Tenative Map Waiver No. 6835254.
The Councilwomen from the 1st District, Sherri Lightner, however disagreed with staff and made the following motion;
I move to grant the appeal and deny certification of MND #182515. I have an accompanying list of findings to read into the record; A Mitigated Negative Declaration connot be ceritied for this project because the record contains substantial evidence to support a fair argument the Whitney Mixed Use project may have a significant effect on the enviroment.
1. Substantial evidence of the project impact on aesthetics/neighborhood character has been provided by the Community Planning Association, La Jolla Shores Association and local architects and residents. All have testified that the project is not compatible with the bulk and scale of the surrounding neighborgood and is so different in form and relationship that it is not compatible with the surrounding development.
2. Substantial evidence of the project's impact on geology / soils has been provided by a registered professional engineer, Dr. Peter Geissler, who said the project would cause permanent soil subsidence due to dewarting for drilled foundation piers. The MND fails to consider or analyze there podential impacts. The applicants soils engineer sugested mitigation measures, but they lack the specificty necessary to assure any potential imapcts will be mitgated. The mitigation measures suggested by the applicant's soils engineer have not been incorprated into the Mitigation Monitoring and Reporting Program and are not binding on the applicant. In addition, nothing in the material discussed the impact on groundwater hydrology of placing a solid 3,000 square foot barrier to groundwater flows below the water table.
3. The MND failed to consider impacts to archaelolgical and paleontological resources caused by drilling the foundation piers. Dr. Geissler reported that drilling foundation piers will crush any human remains, archaeological artifacts and paleontological resources. This program relies on a monitor to protect artifacts discovered during excavation. Howver, the plan fails to mitigate impacts caused by drilling the foundation piers because the drilling itself will destroy any archaeological and / or paleontoiogical resources that may be encountered.
4. The La Jolla Commuity Planning Association provided substantial evidence that the project may have significant land use impact. They provided evidence that the project conflicts with community character policies of the La Jolla Community Plan, The La Jolla Shores Planned District Orinance and the La jolla Shores Design Manual. In addition the project fails to provide the visibility triangles reqired by SDMC Section 113.0273.
5. The report prepared by Federhart and Associates provides substantial evidence the project may have significant impact on the safety of vehicles, pedestrians and bicycles in the area due to poor sight distance because the project fails to provide the visibility triangles required by SDMC Section 113.0273.
Councilwomen Lighther's motion now requires us to prepare an Environmental Impact Report (EIR) to proceed with the development of our future home. (If you would like to view the City Council's May 3, 2011 meeting please click on the following link and advance the time to 2:16:00)
The Whitney's completed the City Councils requested Environmental Impact Report in early 2015 and for the third time went before the Planning Commission on April 16, 2015. Based on the request of Planning Commissioner Austin, at the third level of the east wall a 5' x 15' step-back will be designed into the project.
At this Planning Commission meeting, La Jolla Community Planning Association (LJCPA) Trustee, Phil Merten and Chair of the La Jolla Shores Permit Review Committee (LJSPRC), explains to the Planning Commission just how underhanded the approval process can be in La Jolla. Merten’s comments confirm why the Whitney family terminated their relationship with their original architect Dale Naegle. Merten for the first time publicly explained, Naegle designed the Whitney’s building knowing the LJCPA would not approve his design! Unbeknownst to the Whitney’s, there would be behind the scene maneuvering between Merten, Naegle and the LJCPA requiring the Whitney to change the design in the name of the “Community”. Click the video below to watch Planning Commissioner, Mr. Hass, tells Merten how troubling his comments are as a member of the LJCPA and as a professional architect.
The opponents of our project ignore the fact that although "Visibility Triangles" are not required we have in fact provide them at Calle Carla, Avenida de La Plays and El Paseo Grande. Click the video link below to watch the Chair of the Planning Commission, Tim Golba, clarify with City Staff that "Visibility Triangles" are not required. However the Whitney's have, nonetheless provide them.
Below is a image of the "Visibility Triangles" at the intersection of the alley and El Paseo Grande.
At the April 16, 2015 the San Diego Planning Commission for the third time approved the Whitney Mixed Use building. This time by a 5-1 vote. Planning Commissioner Teresa Quiroz, due to a technical issue, was the lone vote against the EIR. Although she had a technical issue regarding underground water flow, she support the Project 100%. The video below is Commissioner Quiroz comments in support of the Project.
On October 5, 2015 the San Diego City Council heard the appeal of the environmental determination regarding the Whitney Mixed Use project's Environmental Impact Report. After a diatribe from District 1 City Councilperson Sherri Lightner, of false statements regarding the Project, the EIR, the La Jolla Shores PDO and the La Jolla Shores Design Manual, no other Councilperson was willing to honor her request to make a motion to grant the environmental appeals and deny the certification of the EIR. Councilperson Scott Sherman, after questioning staff, made a motion to deny the environmental appeals and certify the EIR. The motion was approved by a 6 - 2 vote. The video clip below is the City Council discussion and vote results.
The Whitney Family would like to thank the thousands of community supporters, who for six and a half years supported us and our project. We can not thank you enough!