Three-Story Lawsuit News

January 2009 Update

Dear La Jolla Friends and Neighbors:

Thank you for your support in challenging the City Council's approval of the first three story project to come through the pipeline since the PDO was established over 20 years ago. As you may know, on October 14th , the City Council succumbed to special interests, followed our councilmember Scott Peters. wishes, and approved "Bird Rock Station"—a three story project in the two-story zone -- based solely on the basis that it will somehow be a "better" project. if it has three stories.

Bird Rock Station's advocates are architect Mark Lyon and Developer Michael Krambs. Mark Lyon was a primary force behind the attempt to overturn the two-story limit three years ago, with the support of architect Michael Morton, and, sadly, our Councilmember Scott Peters.

The Council's October 14th ruling sets a dangerous precedent for approving three story projects where they have been prohibited for over 20 years . in the main commercial areas of the Village, Pearl Street, Nautilus and La Jolla Boulevard, and Bird Rock. Without citizen action, this could essentially "bust" La Jolla's hard-won two-story limit altogether, and we might see the charming character of La Jolla erode, building by building.

And, since the Council's ruling, staff at the City's development department are practically inviting applicants to apply for the type of permit that might allow them to build three stories in the two-story zone.

This has validated our assumption that there is a larger movement to serve developer special interests, at the expense of the community's wishes, and the zoning laws that were the result of so much of our hard work and long-term planning.

That's why, on November 17th, 2008, our local non-profit group, the La Jolla Village Residents. Association, filed a lawsuit against the city of San Diego and owner/developer Michael Krambs challenging the approval of the Bird Rock project.

The lawsuit asks the court to require the City to engage in studies and prepare an Environmental Impact Report to address toxic soils, major water drainage issues due to the massive underground garage, and the impact of allowing three stories in our two-story zones.

It also challenges the City's practice of granting so-called "deviations" to local zoning laws, based solely on vague standards and arbitrary reasoning.

We are excited about the potential for this lawsuit to restore fairness to the building permit process, not only by requiring study of a project that would have a serious impact on the local environment, but also by requiring that the Council apply our zoning laws accurately and uniformly.

Thank you as always for your moral support, your contribution, and your commitment to La Jolla's future.

Your friends at NoThirdStory

October 2008 Update

Dear La Jolla Friends and Neighbors:

This past Tuesday, after a two hour hearing, politics won out over principle and our councilmember Scott Peters led the Council in a 6-1 vote to approve Mark Lyon's three-story project. Donna Frye was the only "no" vote.

Essentially, the Council and City Staff completely ignored the environmental issues, including the traffic and soils reports and legal arguments submitted by residents and our experts.

Not surprisingly (given that Scott Peters is close with Mark Lyon and was a major driver behind Lyon's attempt to eliminate the two-story limit), Peters seemed very happy to be able to vote in favor of his friend's project, saying he "wished there were more projects like this to approve".

At the same time, Peters appeared to be frustrated that the residents made it so hard for him. There was a mountain of compelling evidence and reasoning for voting against the project, including a power point, stunning comparison photos, legal arguments, two expert reports, and a presentation by the former head of the San Diego Planning Department. Our soon-to-be councilmember, Sherri Lightner, submitted a thorough and brilliant analysis of the project. (see Sidebar)

We have some brilliant allies on our side, including Sherri Lightner, certainly the most dedicated and knowledgeable community representative in La Jolla.

Sherri has submitted extensive comments on the Bird Rock Station Bird project. We have excerpted a small section of her comments here, which capture the essence of the threat this project poses better than we can say it:

Since 2006 our community has soundly rejected two different zoning changes to allow three stories in the Planned District (PD) zones limited to two stories. This project seeks to circumvent the will of the community and the existing zoning requirements, which have been affirmed by the community and the planning groups. This project proposes to bust the PDO with a significant de facto zoning change. The intent of the base zone is clear—two stories.

I respectfully request that you deny the proposed project because the findings for the requested permits cannot be made. It is important that you understand that an approval of this project will bust the La Jolla Planned District Ordinance by allowing "deviations" instead of requiring variances to the two-story height limit (which is neighborhood character defining) and the alley access requirement of both the PDO and the Community Plan.

The Community spoke quite clearly in May of 2006 after an extensive community review of two differing proposals to change the PDO . both the La Jolla Town Council and the La Jolla Community Planning Association voted to not allow three-story buildings in the La Jolla PDO zones designated for two stories only.

— Sherri Lightner, 2007

Sadly, Peters did not act respectfully towards those who opposed circumventing the two-story limit. In fact, he exhibited a disdainful attitude towards the many La Jollans who came to voice opposition, as well as the thousands who had opposed the attempt to change the zoning in 2006. He commented at one point that La Jollans, in opposing three stories, were "are either skeptical of change, or they hate change". In fact, this has been a theme for Peters when talking about the things he and his developer supporters want, versus what our community wants.

Other notable and humorous tidbits:

• Peters' bizarre claim that when the PDO was created, it was always intended that there would be ways around the two story limit ----- and that the PDP was the avenue to do this. In fact, the two-story limit is over 20 years old, and PDP's have been in existence only since 2001.
• Peters' backtrack on his famous comment to us at the CPA meeting in May 2006 that "Three stories is off the table". On Tuesday, he claimed that he had said only that "increased density is off the table".

It's hard to know what to say about all this, other than to note that Scott Peters has become the wrong kind of politician, and we are heartened that his term of office is finally coming to a close.

Donna Frye was the sole councilmember not to follow Scott Peters. lead. She came to her own conclusion, which was that the project violated the code. She noted that the "law was clear." and that until you changed the law, you had to abide by it. She also told Lyon and Krambs that if they had simply come forward with a compliant plan (like the Starbucks project), they could have had their building three years ago.

Frye also looked at the timeline submitted by the project opponents, and said to Scott Peters and the Council, "When I look at what these people have been through (trying to maintain the two-story limit), I can't believe you're doing this".

September 2008 Update

Dear NoThirdStory Friends and Neighbors:

On October 14th, a project will be heard by the San Diego City Council that, if approved, would effectively "bust" La Jolla's PDO and its two-story limit in the main commercial areas of the Village, Nautilus and La Jolla Boulevard, and Bird Rock. This project is on the agenda for the October 14th meeting of the City Council.

There's a good chance you have heard about the project in question, which is commonly referred to as "Bird Rock Station". Its sponsors and advocates are architect Mark Lyon and Developer Michael Krambs. You may also recall that Mark Lyon was the primary proponent of the attempt to lift the two-story limit two and a half years ago. At that time he was working in concert with architect Michael Morton, and their effort was supported by our Councilmember Scott Peters.

We are now taking community action. We are putting together a comprehensive opposition that has a very strong chance of success, not only to stop this project, but also to set a precedent for enforcing our zoning laws, including the two-story limit. We will be presenting these submissions and testimony to the City Council. Our hope is that when the Council is educated on the issues and the specific zoning regulations, it will deny the project.

However, because City Council votes are often more politically motivated than merit-based, part of our effort includes preparing for a possible lawsuit in case the Council approves the project. If we go to court, there is an excellent chance of prevailing, and a court decision upholding the two-story limit would be a real victory. This would seriously diminish the chances that any self-interested developer could do such a runaround in the future, and we all could rest easier.

So, after thorough research, we have entered strategy discussions with an experienced lawyer who is prepared to step in to help us prepare the written record and necessary legal submissions to the Council. Several environmental experts are also on board. We all are committed and ready to move forward.

This is a really important time. By mounting a thorough and intelligent challenge now, we can drastically impact our community's future. Thank you in advance for your moral support, your contribution, and your continued commitment to this worthy cause . the La Jolla community.

July 2008 Update

Dear Neighbors,

Today (July 17th) the San Diego City Planning Commission made history, approving the first three-story project in Zone 4 since our PDO was enacted 20 years ago. This decision is an important wake-up call for so many of us who have turned to other projects and issues since the three-story saga of early 2006.

What was the Basis of the Vote?

The Planning Commissioners' primary reason seems to have been that they preferred the design of the three-story project (for which Lyon had brought a beautiful rendering), in comparison to the two-story comparison picture Lyon offered, which was merely a line drawing of a two-story cube, filled in with red. This was no comparison. Nevertheless, the commissioners said that Lyon's three story picture/project was "clearly a superior design" compared to the red box.

What about the Zoning Laws?

Well, the La Jolla Planned District Ordinance -- our PDO -- appeared to have no bearing whatsoever on the Planning Commissioners' decision. They didn't deal with the fact they could not make the findings for a PDP, let alone the public benefit exception to the two story limit. In fact, a couple of the commissioners said did not even understand the the two-story limit and disregarded it, claiming that only the 30-foot height limit mattered. It was sad to find such a lack of basic knowledge zoning in this important public body, which is charged with ensuring that projects comply with planning guidelines, zoning and building codes. In fact, we were shocked that two of the commissioners, who are landscape architects, spent more time discussing plant materials and landscaping than whether the project complied with the PDO.

Close Relationships Behind the Vote

Mark Lyon, Michael Krambs and Development Services staff, who recommended the approval of their project, stayed after to congratulate each other, shaking hands, patting each other on the back, and laughing. This confirms our long-held notion that Development Services is as eager to bust La Jolla's 2-story limit as Mark Lyon and his client are. It's very good to get confirmation of the close relationships that drive this kind of decision.

What Happens Next?

We will appeal to the City Council, who will no doubt be strongly lobbied by Councilmember Scott Peters to approve it. Peters has been working behind the scenes with Mark Lyon for several years now to eliminate the two-story limit, and we have no reason to believe he will change his tune before he leaves office (in December).

Stay Tuned and Have Hope!

Truly, this is just the battle -- not the war. We'll be implementing the next phase of efforts and will keep you posted as to what's in store how you can get involved. We know we can stop this project and protect La Jolla's community character together. In fact, just as with the three-story saga of 2006, this is an opportunity for us to come together, change the way these land use decision are made, and protect our precious community character.

We'll keep you posted!

Your friends at NoThirdStory

May 2008 Update

We thought three stories was a thing of the past, but in less than two weeks, and with barely any notice, architect Mark Lyon and his client, developer Michael Krambs, will attempt to leapfrog over the community planning process and go straight to San Diego City Planning Commission to get approval for their 3-story project.

It is critical that this project not be approved at any level, as it would open the floodgates for other developers to use the same tactics to circumvent the two-story limit.

A bit of background:

As many of you know, architect Mark Lyon was a major force in the attempt to change our zoning laws to permit three stories in La Jolla's commercial zones. Despite the resounding defeat of his efforts in May of 2006, however, he has continued vigorously to push his three-story project on La Jolla Boulevard (called "Bird Rock Station") through the local and City Planning process. Developer Michael Krambs is the owner of the property and Lyon's client. He seems similarly unconcerned about the community's desire that our two-story limit be honored.

Lyon and Krambs are attempting to use a mechanism called a "Planned Development Permit" to excuse this breach of the PDO. Under the Code, if such a project offers a "Public Benefit", there can be exceptions to the 2 story limit. Lyon and Krambs are arguing that simply building their project will offer a "public benefit", and therefore they can deviate from the Code and build to three stories. This is a highly dubious interpretation of the Public Benefit rule.

Moreover, Lyon and Krambs's project was rejected by the CPA last year, and sent back for redesign in line with the PDO.

Rather than bring the project back to the CPA, however, Lyon and Krambs have decided to go straight to the Planning Commission. As a result, on May 1st 2008, the CPA voted to send a letter to the Planning Commission requesting that the hearing be continued in order for the CPA and the community to have the opportunity to review and vote on the project first.

Because Lyon and Krambs have not submitted the project for community review, we have not been able to study what revision they have made, if any. Several Bird Rock residents have gone to the City, to review the plan, however, and report that it appears to be substantially the same. This would not be surprising, given that Lyon and Krambs have never really made any meaningful changes to the project so far.

So why are Lyon and Krambs so confident they will be able to push their project through?

If the Planning Commission were to follow the law, the project would be denied. But if Lyon thought his project was going to be denied, he probably would not bother going to the Planning Commission, would he?

There may be a couple of factors Lyon is counting on. First, it's well known that Lyon has strong influence and long-time relationships with the City's Building Services Department. So he may well have the Building Services staff ready to recommend that his project be approved, regardless of the zoning and the community's position.

Second, it may be that Lyon is counting on the Planning Commission to bend to the wishes of the Building Services staff as well as the influence of our Councilmember Scott Peters. Lyon is close with Councilmember Peters, who was very much in favor of three stories in Bird Rock, at Nautilus, and on Pearl Street, though Peters later backed down from his position in response to public pressure.

On the other hand, it may be that if the Planning Commission denies his project, Lyon plans to appeal to the City Council, where Scott Peters certainly has enough influence to get a favorable vote to approve the project... Of course, if that were to occur, we would have the will and the way to take the matter to court.

The key for us as residents of La Jolla is to remain clearly committed to preserving the integrity of our zoning laws - for the benefit of all of La Jolla for generations to come.

Read on for a letter from Bird Rock Residents:

2007 Update

As many of you know, Mark Lyon was a major force in the attempt to change our zoning laws to permit three stories in La Jolla's commercial zones. Despite the resounding defeat of his efforts, however, he has continued vigorously to push his three-story project (called "Bird Rock Station") through the local and City Planning process. Developer Michael Krambs is the owner of the property and Lyon's client. He seems similarly unconcerned about the community's desire that our two-story limit be honored. They are attempting to use a mechanism called a "Planned Development Permit" to allow this breach of the PDO. They claim that if they offer a "public benefit," at the site, they can "deviate" from the Code. This is a highly dubious interpretation of the "Public Benefit" rule.

The "Deviations"

• Deviation #1: To build three stories in the two-story maximum zone.
• Deviation #2: To enter the parking from Bird Rock Avenue rather than the alley.

The problem with allowing these deviations are many. The two-story limit is the primary means of keeping commercial buildings in scale with the neighborhood as a whole, and adjacent residential properties—not to mention the key method for maintaining residents' privacy. Two stories also is the only way that buildings can provide varied rooflines—squeezing three stories in 30 feet forces flat-roofed, boxy design. These are some of the reasons our PDO has a two-story maximum. In addition, a parking garage and delivery entrance on Bird Rock Avenue would eliminate precious street parking, back traffic up towards La Jolla Boulevard, and is not safe for pedestrians.

The So-Called "Public Benefit"

The "community benefit" Lyon and Krambs claim is a patio area between two 30-foot walls on the site, which Krambs has stated he intends to rent out to a restaurant or other retailer for outdoor use—and income for him! No reasonable reading of the PDO would consider this kind of outdoor retail to be a "public benefit," (public benefits fall into other categories). If it were that easy, the two-story maximum. would be meaningless.

What is the CPA voting on tonight?

This project is now at the CPA, with the approval of the "Coastal Development Committee" (the CDP). How could this be? Last Tuesday, Lyon and Krambs presented their project yet again at the CDP meeting. This committee has sent Lyon back to revise his plan in light of the three-story violation.

At Tuesday's meeting, Lyon presented a redesign, inspired by the newly proposed "form based code" for the Bird Rock area. But he also showed drawings of his old design. The meeting was noticed to be on the redesign only, so it was unclear to those present why the old design was part of the discussion.

Amazingly, and as if it were pre-orchestrated, CDP committee member C.A. Marengo announced that he did not like the redesign, and then motioned for the committee to approve Lyon's PREVIOUS design, which violates the PDO. The motion was seconded, and the majority of the committee members voted in favor—carried by Lyon supporters Hayes, Merten and Marengo. Sherri Lightner expressed her shock and was the sole "no" vote.

Please let the CPA know that you do not approve of this misuse and abuse of our zoning laws. The trustees are mostly very pro-development and favored not only three stories but also Mark Lyon's actions, so they may not pay attention to the community. But it is imperative that our opposition be recorded.

The PDO was developed with extensive public input and written to prevent it being breached like this. If this avenue is opened to three stories, it would signal a major seachange in development in La Jolla.

More information on the project and community concerns