In a tentative ruling released Friday, a judge warned the backers of a new bridge and parking plan for the western entrance to Balboa Park that a crucial piece of their argument may not hold up in court.

The tentative ruling gives a sense of Superior Court Judge Timothy Taylor’s inclination before the two sides meet for oral arguments Friday afternoon, when things could change.

There are three main arguments in the lawsuit filed by opponents, the Save Our Heritage Organisation.

Taylor disagreed with two of them.

But, in a “reluctant conclusion,” Taylor writes that the city violated its own law for historic properties.

In approving the plan on July 9, the City Council had to make a determination that if it did not approve the project, the landowner (the city) would suffer “economic hardship” — that there would be “no reasonable beneficial use of a property” without the designed project.

The judge said no way.

The Plaza de Panama team had three arguments to support this finding:

• 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 plans.

• 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.

On that last one, the judge smacked down the futuristic speculation:

[City law] does not say there “will in the future be no reasonable beneficial use of a property.” It says “there is no reasonable beneficial use of a property” — denoting today, right now, based on present facts, not future facts.

Taylor said neither increased traffic, nor the plaza’s use as a parking lot, renders the land without any beneficial use:

Certainly the rare Balboa Park visitor who actually finds a parking spot in the Plaza de Panama finds that spot “beneficial” on that particular day. Parking lots are a lawful and reasonably beneficial use, even if an undesirable one.

On the other two arguments about the funding offered by philanthropists to build the plan, the judge agreed they’re relevant in talking about the “economic hardship” but don’t help him conclude the plaza would have no beneficial use without the project.

He wrote that the opponents are entitled to what they’re seeking — an order for the city to rescind its approval of the project.

… the law is the law, and the court is bound to follow it. The City has, in other contexts … asked the court to rigorously apply the City’s own law to others. The court’s duty is to do likewise when others demand that the City be held to its own law.

But he seems to find his own ruling bittersweet:

Not lost on the court is the very real possibility that this decision will cause [the Plaza de Panama team] to abandon its efforts to raise money for a long-desired project in Balboa Park, and at a minimum render very difficult a centennial celebration along the lines hoped for by so many. The court agrees with the [proponents] that the positives from the project seem to far outweigh the negatives. The loss of the generous funding … will be a sad day for San Diego, because no other funding source has been identified, and the City’s own perilous (and partly self-inflicted) financial problems have been well documented and likely preclude public funding of any significant alternative project. … SOHO’s opposition to the project seems short-sighted, as the project appears to offer many net benefits in terms of restoration of historic resources.

Here’s more from the two arguments on which the judge leans in support of the Plaza de Panama team:

The judge ruled that the environmental document filed by the city and the Plaza de Panama Committee was “more than sufficient.” Alternatives to the project, including SOHO’s favored “Lewis plan,” received adequate public review and discussion, the judge said.

“The court finds the City’s consideration of project alternatives to have been above reproach,” wrote Taylor.

Opponents had invoked an 1870 statute that Balboa Park be a “free and public park” as a way to challenge the plan’s paid parking structure. But the judge said the statute is no more than a “historical curiosity”: “The 1870 statute has, for purposes of guiding public decision-making regarding Balboa Park, been a dead letter since 1872, 1889, or at the latest since … [1932].”

The Plaza de Panama team circulated an email Sunday night to supporters saying they’ll “vigorously argue” against the judge’s tentative ruling at Friday’s hearing.

CityBeat bid the project a tentative “adios” in a post earlier today.

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

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Disclosure: Voice of San Diego members and supporters may be mentioned or have a stake in the stories we cover. For a complete list of our contributors, click here.

Kelly Bennett

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

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