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Here is the central argument that opponents of Irwin Jacobs’ proposal to renovate Balboa Park’s Plaza de Panama make in their lawsuit filed against the city on Tuesday: Even though an agreement the City Council approved with Jacobs on July 19 says it doesn’t commit the city to signing off on the final plan, it actually does just that. And that is illegal.
The lawsuit relies on a 2008 case from West Hollywood, which approved a similar agreement with a nonprofit to develop an affordable housing project on city-owned land. The California Supreme Court ruled that West Hollywood had broken the law because even though the agreement technically allowed the council to eventually reject the project or approve an alternative plan, other actions by the city made it clear it had no intention to do that.
In its lawsuit over Balboa Park, the preservationist group Save Our Heritage Organisation argues the San Diego City Council has done the same thing.
But City Attorney Jan Goldsmith cites that very case, Save Tara vs. West Hollywood, as proof that San Diego has done everything right. He argues that the circumstances in San Diego are different from those in West Hollywood. In its decision, Goldsmith says, the Supreme Court explicitly allowed the kind of nonbinding agreement that the City Council approved with Jacobs.
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The fundamental question is this: Does the agreement, along with everything else the city has done on the park project to date, clearly demonstrate that it has every intention to approve Jacobs’ plan going forward?
This is how Susan Brandt-Hawley, SOHO’s attorney, put it: “You have to see if, as a practical matter, all the surrounding circumstances have created a momentum where it’s not going to be possible to consider other alternatives.”
Opponents argue that the circumstances surrounding the Plaza de Panama have created too much momentum for Jacobs’ plan for the City Council to later reject it. State environmental laws require the city to consider other alternatives before finally approving a project.
If the agreement approved by the City Council was truly nonbinding, SOHO says, there should be no need for it, and Jacobs should be able to complete required studies and designs without it.
SOHO’s suit argues that because the agreement outlines Jacobs’ proposal it’s clear the city has every intention of adopting it eventually.
But Jacobs and Mayor Jerry Sanders have said the agreement was necessary to give Jacobs assurance there was some kind of support for his project, which would let him start private fundraising for the $40 million renovation. And that would give him a reason to continue paying for a required environmental impact report that would more seriously look at other alternatives before the City Council is asked to make a final decision.
In the West Hollywood case, opponents challenged the housing project because they wanted a park or community center instead. The city said it would consider them as part of the environmental study the developer would be required to complete. But the Supreme Court ruled that despite those assurances and the nonbinding language of the agreement, the city’s other actions showed it had every intention of approving the housing project.
As part of its agreement, the city agreed to sell the developer the land to make it easier to get tax credits, to give the developer a large loan and to issue eviction notices to residents living on the property slated for development. That was too much for the court to buy the city’s argument that it would consider other alternatives.
But in its decision, the court didn’t reject all nonbinding agreements.
“Privately conducted projects often need some form of government consent or assistance to get off the ground, sometimes long before they come up for formal approval,” the court said. “If having high esteem for a project before preparing an environmental impact statement nullifies the process, few public projects would withstand public scrutiny, since it is inevitable that the agency proposing a project will be favorably disposed to it.”
That, Goldsmith has argued, as well as the differences between the West Hollywood case and the San Diego City Council’s decision, justify the council’s tentative agreement with Jacobs. He’s asked SOHO to dismiss its case, calling it meritless.
If SOHO moves forward with its case, a judge will have to decide whether the steps the San Diego City Council has taken so far have created too much momentum for the council to turn back on Jacobs’ project in the future.
“We think it has,” Brandt-Hawley said.
Disclosure: Irwin Jacobs is a major supporter of voiceofsandiego.org.
Adrian Florido is a reporter for voiceofsandiego.org. He covers San Diego’s neighborhoods. What should he write about next?