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A North Park religious school will receive more than $500,000 from taxpayers because a jury found late last year that the city unfairly rejected its expansion project.
The school’s lawyers won their case by arguing City Councilman Todd Gloria improperly pressured city staff into changing a vital report on the project four years ago. That change cleared the way for the City Council to reject the school’s plans.
Gloria denies any wrongdoing, but there is significant evidence to suggest he tampered in the planning process.
In 2007, North Park’s Academy of Our Lady of Peace asked the city to approve its plans to expand its classroom and parking facilities to better serve its over-capacity enrollment. The council eventually voted to reject the project.
Before the council killed the project, Gloria met with a city staffer involved in the city’s formal review of the school’s proposal. That same staffer instructed the author of a key report to change its conclusion to better reflect Gloria’s position on the project.
Gloria used the changed report to justify rejecting the project, reciting its new conclusion nearly verbatim to his council colleagues, who then voted against the expansion.
Presented with this evidence, a district court judge ruled last year there was sufficient evidence for the case to go before a jury. The judge specifically cited Gloria’s involvement, and the pressure placed on city staff to change the project’s official report.
Five months later, a jury found the city treated the school unfairly, and awarded the school $1.1 million in damages. In February, the school and council agreed to settle for $500,000 plus the cost to relocate the homes. The city agreed not to appeal the verdict.
Amplifying the verdict was an accusation about why Gloria may have inserted himself in the process: The school’s attorneys claimed in court that the councilman killed the project to satisfy a neighborhood group that later helped pay back debt from his 2008 election campaign.
Gloria says that’s nonsense. He may have taken money from the group that opposed the project, but he also took donations from Our Lady of Peace supporters, he said.
“I live in a 300-square-foot studio apartment,” Gloria said. “If I’m on the take, I’m not doing it right.”
‘It All Looked Pretty Disgusting’
Our Lady of Peace’s case was based on a critical change made to a city report on its expansion project.
In early 2009, the council held two meetings to discuss the school’s planned expansion.
But a month later, the staff’s conclusion had been changed to say it was inconsistent with the community plan.
Staff reports provide the council informational background on any item. The council sometimes votes against the city staff’s official recommendation, but in land use cases like this, council members legally must base their vote on a specific fact provided in the item’s supporting materials. They can’t arbitrarily rule for or against something.
Between the council meetings, two key things happened: Gloria met with a staffer charged with collecting city reports on the project, and that same staffer instructed a colleague to change a report’s conclusion to better align with Gloria’s preference, according to court documents.
That wasn’t simply a coincidence, claimed the school’s attorneys. They say Gloria told city staff to change the determination, and then used the change to justify denying the project.
“Only after the planner changed the report did Todd have an in to deny the project,” said Dan Dalton, lead lawyer for Our Lady of Peace. “The jury saw that, and it all looked pretty disgusting.”
Consistency Is Key
Since it was first discussed in 2006, Our Lady of Peace’s expansion project had been a contentious issue in the neighborhood surrounding the school, an area between University Heights and Normal Heights that’s adopted the moniker “BeHi” for “Between Heights.”
The final plan called for removing two historic, Spanish eclectic-style homes the school owned to build a large classroom building and parking garage.
|Photo by Sam Hodgson|
|The city of San Diego must pay to relocate a historic home at 2544 Collier Ave. after settling a lawsuit with The Academy of Our Lady of Peace.|
In September 2008, the local community planning group voted against the project, but that vote was just a recommendation to the Planning Commission, a citywide body that votes on changes to San Diego’s land use policies.
Almost a month later, the project won unanimous approval from the Planning Commission.
Because the project was deemed consistent with the community plan, the Planning Commission, rather than the council, had final say on approving the project. But when neighbors appealed the Planning Commission’s decision, the project went to the council for a final decision.
The council heard the appeal in January 2009. The hearing lasted more than five hours. Ardent supporters and opponents in council chambers showed support during public comments by waving their arms above their heads, rather than through applause, on the request of then-Council President Ben Hueso, who thought it would speed up the proceedings.
At the council hearing, Gloria, who had been elected a few months earlier to represent the council district in which the school is located, made a motion to reject the construction proposal.
He based his move on the fact that North Park’s community plan called for the preservation of historic resources. An environmental report on the project said relocating or demolishing the homes would irreparably damage their historic character.
Gloria said those facts proved the project contradicted the community plan, which says preserving historic resources should be a priority. Then-Councilwoman Donna Frye strongly opposed the project, too. It was obvious, she said, that the project wasn’t consistent with the community plan.
But the staff report said otherwise. While it noted the historical resources issue, the original version of the report said those concerns were essentially trumped by other benefits the project would bring to the community.
That made things tricky for the council members who opposed the school’s plans.
They couldn’t just deem the project inconsistent with the community plan — they needed a staff report backing up that conclusion.
And killing the project based on such an inconsistency, rather than some other reason, was the best way to shield the council from lawsuits going forward, legal experts said.
Cory Briggs, an attorney who often sues over land use deals, said a city is in a much stronger position if it can point to a report saying a project violates a community plan.
“You always want to be in front of the judge saying, ‘They got it right’ … rather than saying, ‘They got it wrong, and here’s why.’”
At that first hearing, the council voted to continue the discussion a month later.
Between the two hearings, Gloria met with the city staffer in charge of managing the city’s reports on the project, Michelle Sokolowski. In court and again in a recent interview, Gloria said the meeting was a follow-up to the discussion at the first hearing and that he didn’t remember what he and Sokolowski talked about. Sokolowski didn’t respond to a request for comment.
Also in the period between the two hearings, Sokolowski instructed a colleague, city planner Marlon Pangilinan, to change his report stating the school’s project was consistent with the community plan.
In a Feb. 9 email, Pangilinan wrote to Sokolowski, “Let me know if you this is sufficient (sic). I figure that you can still use the language in the finding all the way up to the very last paragraph where it says the project would not affect the (community plan), and just add this paragraph.”
The new paragraph included in the email concludes that removing the historic homes would adversely affect the community plan’s objectives for preserving architectural variety.
|Photo by Sam Hodgson|
|A historic Spanish-electic style home at 2746 Copley Ave. will be relocated as a result of a settlement between the city and The Academy of Our Lady of Peace.|
Sokolowski, the city staffer who had met with Gloria, forwarded the new conclusion to the city attorney’s office. She told them city staff had prepared a conclusion allowing for the denial of the construction.
According to court documents, Pangilinan said this was the only time he could recall in his 10 years with the city that he’s been asked to change one of his conclusions. He also said his opinion on the project never changed, but that he wrote the new conclusion because Sokolowski told him to.
Elected representatives aren’t barred from asking city staff to change a report. But Kelly Broughton, head of the city’s development services department, said in his deposition that doing so would violate the department’s internal procedures and training practices.
“My experience with the department has always been that management, my managers from when I first started with the city, and I’ve maintained the same position, that it’s inappropriate for decision-makers to talk with staff about development projects going through process if it’s a project that will be before them at some point in time,” Broughton said, according to court documents.
At the beginning of the second council hearing, Gloria made the same motion to kill the project he had tried to make at the first hearing. He supported it by reading, nearly word for word, the new determination in the staff report that Pangilinan had been asked to write.
“Based upon these findings and the findings of the information contained in the staff report, I move that the (construction project) be denied,” Gloria said.
The council rejected the project on a 5-3 vote.
Our Lady of Peace sued the city over the rejection, under a federal law that restricts how cities can apply land use regulations on religious entities. The school alleged the decision put an unreasonable burden on its ability to pursue its religious mission.
U.S. District Court Judge Cathy Ann Bencivengo ruled there was substantial evidence to send the case before a jury. Her ruling pointed specifically to the city staffer being told to rewrite his conclusion on the project, and Gloria’s meeting with city staff before the council ultimately rejected the plan.
“Plaintiff has presented evidence that, among other things … the city planner was pressured to draft ‘reverse findings’ so that a report would say that the plan was not consistent with the neighborhood plan, something he testified he had never been requested to do,” Bencivengo wrote.
She wrote that “city staff met with Councilman Gloria, who allegedly lead [sic] the charge to deny OLP’s permits, in the interim period between the Planning Commission’s decision to grant OLP its required permits and the City Council’s hearing where they ultimately denied the permits.”
A jury ruled six months ago in favor of Our Lady of Peace, and awarded the school $1.1 million in damages.
Then, earlier this year, the council voted to settle for $500,000 plus the cost of relocating the two historic homes. The city also agreed not to pursue an appeal.
Gloria denies ever telling anyone to change a report.
“The nefarious suggestion of what was going on ignores that we were ready to make the decision at the first hearing,” he said.
“I know how the plaintiff’s attorneys tried to portray it, but that wasn’t right at all,” he said.
He also said the city was prepared for a lawsuit from historical preservationists if it allowed the project to go forward.
“There was no way we were getting out of that case without getting sued by someone,” Gloria said.
Attorneys for Our Lady of Peace didn’t just tell the court that Gloria improperly influenced the process. They also tried to explain why he did it.
After the council’s vote to reject the project, Our Lady of Peace argued, Gloria accepted donations from project opponents that helped pay off debt from his 2008 campaign.
Gloria told U-T San Diego in June 2009 that a lobbyist hired by project opponents, Jim Bartell, of Bartell & Associates, had held a fundraiser for him.
The fundraising still hasn’t shown up on any campaign finance reports, either because it didn’t meet the threshold for disclosure, or because it was improperly filed. Bartell didn’t respond to requests for comment.
Gloria scoffed at the idea that campaign funds had anything to do with his opposition to the project.
He called the accusation “gutter politics,” and said it ignores the fact that he’s also accepted donations from Our Lady of Peace supporters who liked the expansion project.
“They definitely made a point of this, and I found it very unfair,” he said.
I’m Andrew Keatts, a reporter for Voice of San Diego. Please contact me if you’d like at email@example.com or 619.325.0529 and follow me on Twitter:
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