I could write multiple columns about the Sunroad experience.

One could be devoted to the multi-year process that preceded the issuance of the March 2006 building permit. Such a column would highlight the overly complex, multi-jurisdictional regulatory process that contributed to the mistaken overlooking of the FAA Part 77 guidelines, not only by the city, but by the San Diego Association of Governments, the Airport Authority and even the city’s Airport Advisory Committee.

Another could trace the missed opportunities to deal with the issue during the spring and summer of 2006, after the city first became aware of the FAA issue, but before the building reached its maximum height in August 2006.

But for this column, I am only going to focus on certain key facts and decisions after the building issue hit my desk as a problem item in October 2006, since these events, in a microcosm, represent many of the daily dysfunctions at City Hall.

The Sunroad problem is 100% the result of the overly aggressive and high-handed tactics of Sunroad Corporation. There are hundreds of buildings in the United States that exceed the Part 77 heights. The FAA told us that the only owner who ever failed to respond to a preliminary determination of a possible hazard to navigation (issued the second week of August 2006) is Sunroad Corporation. Suffice it to say, Sunroad really made the FAA mad. What has driven me crazy is that it is our city, and we as taxpayers, who are paying.

Once the FAA made its determination of hazard, Sunroad had a serious problem. It was building a building, that once labeled by the FAA, could likely not be insured or financed, and would be of questionable desirability to tenants. The city did not have a problem. Sunroad had a legal permit from the city. But Sunroad had a conflict it needed to resolve with the FAA to have a viable building investment.

It is important to point out that the building has never been a safety risk to aviation because of very typical and routine changes in operational procedures made by the FAA. The FAA never compromises safety. If that building at any time had been determined by the FAA to be an unmitigatable safety risk, the FAA would have shut down Montgomery Field — immediately. Unfortunately, there has been an effort made to confuse the presumed hazard determination with a real risk to safe operations at the airport.

The issue became a liability for the city only after the city attorney, on his own and without the advice or consent of the mayor or council, filed his lawsuit. How ironic. If the mayor wants to spend city money, there is required public review and council action. If a council member has a project he or she wants funded, they must also work through a public and budget process. The only person in all of city government who believes he has the right to spend tax money and risk public liability without restrictions, limits or checks and balances is the city attorney!

Workers pull apart the Sunroad office complex. Photo: Sam Hodgson

The city’s outside legal expense in this matter is already well over $1 million, and growing. All for a case that with some thought and negotiations likely never needed to be filed, but from the city attorney’s perspective was too much political theater to pass up.

Have you ever wondered why the lawsuit is based upon a public nuisance theory, verses the enforcement of a land use regulation or enforceable federal law or statute? The reason is that the FAA Part 77 Guidelines are not land use regulations or standards enforceable through legal action. There is no land use law to rely upon. The FAA never acts to enforce the Part 77 guidelines.

When I asked the city attorney to at least receive an official written request from either the state or federal authorities before filing a city lawsuit, I was ignored. When I asked the city attorney to seek indemnity from either the FAA or Caltrans, he said he would, but did not. The San Diego Union-Tribune ripped me for arguing that the city should not take the lead in a legal action, but rather should support state or federal actions. But the fact is that the city attorney converted Sunroad’s problem into a city of San Diego contingent liability in a lawsuit where at best the city comes out even. It’s politically expedient and good for great press coverage to attack the rich developer, especially one that supported the mayor. But is it good and responsible leadership? Regardless of the outcome, Sunroad is still a wealthy corporation.

I clearly made mistakes. The biggest was the one Sunroad decision I made — to modify the stop work order. It was not thought out clearly enough and was not properly communicated to the public. That decision has resulted in unfounded speculation against the mayor and the Development Services Department — avoidable if I had handled the decision better.

In a normal, functioning system, I would have worked collaboratively with the city attorney before acting. I allowed my deep suspicion of his motives and my concern for the city’s potential liability to interfere with a better process.

The Sunroad office complex in Kearny Mesa. Photo: Sam Hodgson

There has been much speculation about the content of the December meeting between the mayor and myself and Aaron Feldman and Tom Story of Sunroad. At that meeting, Mr. Feldman asked the mayor to request the FAA to make permanent the 20-foot raising of the minimum flight elevation, which his experts had advised him the FAA would grant, thereby eliminating the determination of hazard. The mayor firmly said no, he would not make that request, which would have been the easiest thing to do if the mayor had been motivated or felt a need to help a political supporter. No such request was ever made by the city.

The facts of that meeting highlight my biggest criticism of how the Mayor’s Office handled this entire matter. It should have communicated better and more frequently. By not communicating what was really happening, the public’s impressions came from the politically biased actions of the city attorney and the ongoing, knowingly biased reporting by the Union-Tribune. I was constantly amazed by the difference between what was being written in the U-T or being said by Mike Aguirre and what I knew first hand was happening.

We were trying to find a solution that resolved the lawsuit, while satisfying the FAA. At no time were we motivated by a desire to help Sunroad, other than to the extent that any settlement necessarily required their participation. As in most lawsuits, it is customary practice to search for a settlement while pursuing the litigation. I was frankly surprised by the continuing criticism of the effort to find a resolution.

Many ideas were explored and rejected. But in June we thought we had a solution that worked for everyone. It had four parts:

  • The building would be reduced to 166 feet, verses the 160 feet to which it is currently being reduced.
  • The other 2 buildings would be built to the prescribed Part 77 elevations, not the elevations to which they are currently designed.
  • The lawsuit would be dismissed, with each party paying their own fees and costs.
  • Sunroad would contribute to a finalized $750,000 to $1,000,000 to Montgomery Field for needed aviation improvements.

In other words, to continue the fight would be over six feet on one building!

The settlement required the consent of the FAA, since a condition was the lifting of the hazard determination. While the FAA had not made a final determination, and might have ultimately rejected the proposal, the preliminary discussions had been positive. The matter was being reviewed in Washington.

The day before the FAA had told us we would get their decision, the city attorney faxed a long letter to Kevin Haggerty of the FAA in which he declared that the city insisted upon 160 feet and only 160 feet, and any compromise above that was not acceptable. The day after Mr. Aguirre’s letter, the FAA rejected the settlement proposal. Would the FAA have done so anyway? We’ll never know.

From that day forward there were no further negotiations or contact with Sunroad regarding a settlement. Ultimately, any settlement would have required council action after a public hearing. The political agenda of one person prevented that public process from occurring.


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