San Diego — Community height limits for buildings in San Diego will face another test this summer when the San Diego City Council revisits plans for the Pacific Coast Office Building in Mission Valley. At issue is the 150-foot elevation contour line established by the Mission Valley Community Plan to protect the valley's southern edge from construction creeping up the hillside. In Mission Valley below Normal Heights, plastic surgeon and developer Robert Pollack wants his building to rise close to 200 feet above sea level. And the City's Development Services Department supports him.

On September 26 last year, the city council upheld an appeal to the project's mitigated negative declaration, a document that describes measures the builder will include to counteract harmful environmental impacts that the project may have. The appeal was brought by the River Valley Preservation Project, the Mission Valley Community Council, and the San Diego chapters of the Sierra Club and Audubon Society. The council "remanded" the project for reconsideration to the planning commission, which had approved it earlier. On May 17, 2007, the commission reconsidered the project, approving it unanimously for a second time.

Construction above a 150-foot elevation on Mission Valley hillsides would have several harmful effects. The most important are visual, environmental, and those related to safety. Opponents of the Pacific Coast Office Building are citing all three. In regard to safety, they recall the 1985 fire that stormed up Mission Valley hillsides into Normal Heights. A cigarette tossed into the brush high on the hillsides could ignite another dangerous fire. Too much brush clearing at around the 200-foot level, however, would threaten the habitat of native coastal sage scrub. In 1989, when then-Councilwoman Judy McCarty defended the hillsides during a city council meeting, she probably had the visual impacts in mind. "The Mission Valley slopes," she said, "are the most important slopes in the city, except for some of those on the coast in La Jolla. If we are to protect anything in this city, it has to be the slopes in Mission Valley."

Whatever decision the city council makes, the approval process is pioneering a brand-new approach. Should developers worry? Never before has the city council remanded a construction project to the planning commission. What the council will now have to decide is whether the planning commission followed its instructions. The City's Development Services Department has written a fifth mitigated negative declaration for the Pacific Coast Office Building to satisfy both the planning commission and the council. Here's how the department, on the declaration's first page, phrased its understanding of the situation. "City Council granted the appeal and set aside the environmental determination and remanded the matter to the previous decision maker (the Planning Commission). In addition, City Council directed [Development Services] staff to provide additional information in the document regarding the various project designs that had been considered by the applicant...."

According to community activist Randy Berkman, this reading does not accurately state the city council's wishes. Minutes of the May 17 city council meeting show that its decision was to "remand the matter to the previous decision maker with direction to review the alternatives to reduce the impacts." Councilwoman Donna Frye made the motion that the council passed. According to a transcript of the meeting, Frye said she wanted consideration of "alternatives provided by the applicant...and further environmental analysis that includes some alternatives, some other projects, and [discussion of] each one of those alternatives.... What I asked for was an analysis of alternatives to reduce the impacts to the open space [in Mission Valley] above the 150-foot elevation.... The purpose of [this] is to provide clear direction for [the owner] so [he] can comply and have some knowledge of what is being asked instead of again sending him into limbo."

As Berkman sees it, Councilwoman Frye wanted a consideration of new alternatives, whereas what the planning commission looked at in its second hearing were "the various project designs that had [already] been considered by the applicant." "That's letting him take a second bite out of the same apple," Berkman tells me. "The designs so far considered have already been rejected.

"The Development Services summary of the city council demand is a clear distortion. But that's consistent with their approach since this project was first proposed. Why," Berkman asks me, "do you think there have been five mitigated negative declarations written for the project so far? They keep coming back and trying to force it through."

Berkman cites earlier distortions of the Mission Valley Community Plan that are still in the fifth mitigated negative declaration. They suggest that small developments above the 150-foot elevation are allowed at the base of the southern hillsides, despite the plan's forbidding all such ventures. In an April 16 e-mail to Jim Waring, the City's head of land use and economic development, Berkman wrote, "I know you are not to blame for the repeated misquotes and misstatements regarding this project. However, I think it is time for you to separate yourself and the Mayor from these serious false statements of [Department of Development Services] staff."

Nevertheless, suspicions that the approval process was being orchestrated behind the scenes prompted Berkman to file a California Public Records Act request for City e-mails and documents relating to the Pacific Coast Office Building. He received no documents or sets of meeting minutes but plenty of e-mails, one of which he describes as a "bombshell." On May 3, the City's Pacific Coast project manager Patrick Hooper wrote to property owner and building developer Robert Pollack, saying, "Yes, the [mitigated negative declaration] is final as of today but you may want to speak with Bob Vacchi [one of Pollack's attorneys] about the status of the document. I informed him this morning that the city attorney determined...that the staff did not follow Council direction and that the document and project should not be considered by the Planning Commission. The [city attorney] feels that [Frye's] motion [approved at the September 26, 2006, City Council meeting] included specific direction to analyze a reduced impact alternative and therefore the project itself must change. We disagree and are scheduled to meet with [the city attorney's office] Monday morning. Either way the notice went out and we are on [at the Planning Commission] for May 17."

Berkman finds it telling that Development Services staff planned to go ahead with the planning commission review even if they failed to convince the city attorney's office to change its position. But change it they must have, for no word of the city attorney view reached Berkman, who spoke against Pacific Coast at the May 17 planning commission meeting. "While I am pleased," Berkman tells me, "that the city attorney agreed with us, I am disappointed and perplexed that we were not informed of this and had to discover the info through a public records request. That information, of course, would have been very powerful at the planning commission hearing."

Why were there no references in the public records materials to the city attorney's change of mind? And why, Berkman wonders, "were there no e-mails back and forth between Development Services staff and Jim Waring? Even if Waring had shown no early interest in Pacific Coast, I had warned him about the project."

In a May 13 e-mail to several city attorney and Development Services staff, property owner Robert Pollack outlined why he thought the city council could not call for changes in the project. In the appeal, he argued, the council's direction allowed the planning commission to "reconsider its [first] decision, but does not preclude the option of returning the same project as the best alternative. Specific language that would preclude use of the same project was not used." Besides, according to the California Environmental Quality Act, "Only the adequacy of the environmental document is being evaluated and city council is not granted the authority to rule on the merits of the project itself." But, asks Berkman, "If that were the case, then what use is an appeal? Nobody would ever file one."

Berkman proposes that the Pacific Coast Office Building project be renamed. " 'Son of Sunroad' fits in the following way," he writes me. "The building is too tall for the location. If it started at the 111-foot elevation it would be compliant at 150 feet, since it's 39 feet tall. However, since it extends to the 200-foot line, it is 50 feet above what is legal. Hence [its violation] is 30 feet higher than the Sunroad 20-foot height violation [for its office building near Montgomery Field]. While there are no airplane hazards, the public is likewise getting shafted due to the open space encroachment.... Another similarity: despite being told to revise plans, the landowner persists with the same plans -- in defiance of city council direction. One positive difference: this [project] has not broken ground."

This summer, the city council will hear another appeal of the planning commission's decision to approve the Pacific Coast Office Building. This time the University Heights Planning Committee and Friends of San Diego will join the four original appellants.