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A day after the City Council voted 6-to-1 to approve a plan to remake the western entrance of Balboa Park, the plan’s chief opponents announced they’ll sue over it.

A loose coalition of neighborhood groups and preservationists led by the Save Our Heritage Organisation argued vehemently into the evening last night that the project cause too large an impact to the park’s historic character.

But they also hinted at legal challenge. Tuesday, those hints became explicit statements. From the SOHO announcement:

The lawsuit will be based on the City’s violations of the San Diego Municipal Code, the 1870 Trust Dedication of the Park as “free” in perpetuity, and the California Environmental Quality Act (CEQA) in approving the plan.

It won’t be completely clear until these issues are outlined in greater detail in a lawsuit, and argued in court, how the legal battle will shape up.

But here are a few questions to watch as the suit gets closer.

How broadly does an 1870 statute apply to the park?

SOHO last week began circulating a California statute from when the land was entrusted to the city in 1870. It stated that the land would be kept forever as a “free and public park.”

There may be opinions about how narrowly that “free” stipulation can apply — like to the valet parking or museum admissions already charged at the park — but SOHO’s attorney, Susan Brandt-Hawley, said she interprets it simply.

“Free means free,” Brandt-Hawley opined. “It appears that a paid parking garage would not be consistent with the trust dedication of this park.”

Shannon Thomas, deputy city attorney, opined at the hearing that that would be reading the statute very broadly.

• How can the city satisfy its responsibility to analyze economic benefit in this case?

The city’s law requires something specific for historic properties. Last night, the City Council had to make a finding that if they denied the project the owner wouldn’t be able to derive financial benefit from the project.

But unlike a historic home someone is trying to convert into an office downtown, this is a city park. So if a judge rules that the city has to follow this stipulation, it’d have a tricky argument to make.

A land use attorney for the Plaza de Panama committee, Scott Williams from Selzer Caplan, stood up and made a three point argument for how the city could make the finding that:

• By not approving the plan, the city would be on the hook to pay for benefits to the park that have already been part of city planners.

• By rejecting private money from philanthropist Irwin Jacobs and others, the city would be essentially taking money out of its own pocket.

• By allowing the park to continue as-is, without improvements, the plazas would someday become unusable.

There will certainly be more detail soon from SOHO and from the city on any potential legal arguments. We’ll continue to watch for them and do our best to explain.

I’m Kelly Bennett, reporter for Voice of San Diego. You can reach me directly at kelly.bennett@voiceofsandiego.org or 619.325.0531.

And follow Behind the Scene on Facebook.

Kelly Bennett

Kelly Bennett is a former staff writer for Voice of San Diego.

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