How Mayor Bob Filner will proceed with his attempt to shut down the renovation of a Jack in the Box in North Park could come down to a confidential memo from the city attorney’s office.

Almost two weeks ago, Filner instructed Tom Tomlinson, the city’s interim director of Development Services, to ask the city attorney for a legal opinion on how to handle issues facing the renovation of a North Park Jack in the Box.

Tomlinson wrote the request after a June 25 inspection found the project didn’t comply with its permit.

Late last week, Tomlinson learned of the city’s options in a confidential memo from the city attorney’s office. After he digests the response, he said he and the mayor will decide how to proceed without potentially making the city subject to another lawsuit for halting a previously approved project.

Tomlinson said the opinion answered the eight questions he had posed to the city attorney, and offered a few options the city could pursue.

“If the city attorney was providing a black-and-white response, we wouldn’t have needed to ask for advice in the first place,” he said. “It’s complicated. I’ll need to digest it and confer with management.”

At stake is the renovation, some say a full rebuilding, of a Jack in the Box where 30th Street dead ends into Upas Street.

It’s been a major local issue for years. Jack in the Box’s current attempt to remodel the building came after an attempt to rebuild entirely was rejected last year by the city’s Planning Commission, at the urging of local residents and the North Park Planners Committee.

The Jack in the Box location was built before new zoning laws in the area were changed to prohibit drive-thru windows, so it’s been able to continue operating one. Neighbors consider the drive-thru a nuisance, and say it’s a safety concern at the high-volume intersection in front of the restaurant.

The Planning Commission last year rejected a request to rebuild the structure entirely, but Development Services OK’d Jack in the Box’s plan to remodel, which includes keeping the drive-thru.

But the issue heated up again in late June when an inspection by Development Services found the renovation was out of compliance with its permit because two walls had been demolished – actions that weren’t listed in the approved plans.

Two days later, Jack in the Box submitted a change of plans in an attempt to rectify the problem.

Tomlinson on July 3 sent a memo to Heidi Vonblom, deputy city attorney, asking eight questions about the project. It was generally aimed at learning whether the city could hold off on approving the project change while looking into whether the original permit should have been issued in the first place.

The same day, Filner issued a press release and held a press conference announcing he was asking the city attorney to issue a formal “Stop Work Order” on the project, and included Tomlinson’s request as part of his announcement.

Goldsmith had issued an earlier legal memo insisting his office must approve any attempt by Development Services to issue a Stop Work Order.

That memo came in response to a similar situation where Filner unilaterally halted construction at an apartment complex in College Area. The project’s developer sued the city over it, and eventually accepted a legal settlement that allowed construction to resume.

Filner appears to have accepted Goldsmith’s legal advice by involving his office in the decision this time around.

But now he’ll need to decide how to proceed, based on whatever advice was provided in the confidential memo from the city attorney’s office.

“My guess is the opinion was the city is legally liable if the project is made to stop,” said Vicki Granowitz, chair of the North Park Planning Committee, who believes the plan to remodel should have been subject to greater scrutiny.

Jack in the Box’s remodel plan was granted through the most lax approval process: A Development Services staffer gave it the green light after determining the project complied with regulations.

Granowitz and others believe the project should have been subject to a higher standard, where the decision could have been appealed to the Planning Commission. As is, the decision couldn’t be appealed to a higher decision-making body, like the Planning Commission or City Council.

Jack in the Box ultimately secured a construction permit, allowing it to conduct maintenance, repairs or alteration on the current property.

The city’s municipal code lends credence to Granowitz and others who think the remodel didn’t get enough scrutiny. The provision that outlines the review process for projects that conflict with current zoning rules says the remodel would have had to go through the more rigorous approval process if the cost of construction was going to be more than 50 percent of the market value of the existing structure.

The county’s most recent property assessment for 2959 Upas St. shows improvements on the property are valued at $133,750.

That means any construction project on the property exceeding $66,875 would have required a different permit, and the decision could have been appealed to the Planning Commission.

Tomlinson and a spokeswoman for Jack in the Box did not respond to questions about the cost of construction.

But it’s hard to imagine how the construction, which included almost the complete demolition and a from-scratch rebuild, could come in at less than $70,000. Roger Lewis, a member of the North Park Planning Committee, speculated that the cost could clear $200,000. (Update: in an email to Michael Turko of KUSI, a spokesperson for Development Services confirmed the current valuation of the construction project to be $216,422.)

Andrew Keatts is a former managing editor for projects and investigations at Voice of San Diego.

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