Chula Vista — The Port of San Diego calls the Chula Vista Bayfront Master Plan “one of the largest waterfront planning efforts in the nation.” For more than seven years, competing interests have negotiated and compromised on parks, open spaces, and ecological buffers, a new harbor and marina with a waterfront promenade, condos, hotels, offices, restaurants, a relocated or decommissioned power plant, and Gaylord Entertainment’s $1 billion convention complex. Getting the plan approved by government agencies is crucial to Chula Vista’s economy, which settled into the dumps after eastern Chula Vista was built out. But the city has a long history of failed bayfront plans, and the current one is as fragile as the bayfront ecology. So why has Chula Vista’s mayor entered into conversations with David Malcolm and the San Diego Chargers?

Chula Vista’s bayfront stretches from the Sweetwater Marsh National Wildlife Refuge on Gunpowder Point to the salt evaporation ponds near the south end of the bay. The master plan covers 128 privately owned acres just south of the refuge and approximately 430 acres controlled by the port. Pacifica Companies, a private developer, and the City of Chula Vista control the 128 acres. Though Pacifica does not own the private land, it holds an exclusive option to build on 97 of those acres. The port’s land is owned by the state and must be used for public purposes; private residences cannot be built on port land.

While Gaylord Entertainment has behaved like a diva, stomping out of negotiations and making dramatic departures, Pacifica’s president, Ash Israni, has agreed to a $7.5 million trust for eventualities associated with the environmental impact report, and he has worked on a land swap with the port that would protect sensitive wetlands. An important part of the redevelopment plan, the land swap would involve an exchange of approximately 97 acres of Pacifica land next to the wildlife refuge for approximately 57 acres of port land on which Pacifica would build condos, a hotel, offices, and retail space.

The master plan’s environmental impact report is due out this spring. Once that report is approved by the City and the port, the master plan must be approved by state and federal agencies, including the California State Lands Commission and the California Coastal Commission.

In December 2006, while Pacifica’s negotiations with the port were well under way, Chula Vista had a change in leadership when Cheryl Cox became mayor. Her husband, Greg Cox, has also served as the city’s mayor, from 1981 to 1990, and he is currently on the County Board of Supervisors.

When Cheryl Cox came into office, a source close to Pacifica says, “she wanted to change everything.” At one point Cox came into Pacifica’s office accusing Pacifica of caving in to extortion because they had committed up to $7.5 million to a foundation for habitat restoration and trail maintenance.

On another occasion, David Malcolm appeared in Ash Israni’s office, the source reported, and began “aggressively advising” Pacifica on the land swap. According to the source, Malcolm was very forward about the fact that he was advising Cox on the bayfront.

Cox and Malcolm did not return phone calls.

David Malcolm has a long history with the Chula Vista bayfront. He’s been a Chula Vista City Council member (1982–1992), a coastal commissioner (1984–1995), and a port commissioner (1995–2002). Over the years, his business dealings have been questioned a number of times. In 1984, according to a January 5, 2002 Union-Tribune story, Councilman Malcolm was “accused of seeking amendments to city and county rules that would in effect increase the value and hasten the development of a 48-acre tract near National City in which he had an interest.” Mayor Greg Cox, who the U-T story says was a codeveloper, pulled out of the deal, and Malcolm eventually donated his interest to charity. In 1988, the California Fair Political Practices Commission investigated nine conflict-of-interest allegations against Malcolm. He was cleared for lack of evidence. In 2002, he resigned as head of the port commission amid allegations that Duke Energy, to which the port had awarded a contract to operate the South Bay Power Plant, was paying Malcolm $20,000 a month to represent the company’s interests. The following year Malcolm pleaded guilty to one felony conflict-of-interest charge. Later, the Fourth District Court of Appeal threw out Malcolm’s appeal, ruling that it is wrong for “a trustee to engage in self-dealing, including the contingent feathering of one’s own nest.” (The conviction was expunged in 2006.)

David Malcolm was a central issue in the 2006 Chula Vista mayoral race between incumbent Steve Padilla and Cheryl Cox. Cox ran on a platform of openness and honesty. On June 19, 2006, Cox spoke before the board of directors of Crossroads II, an influential group of Chula Vista residents who are organized around land-use issues. Although the group does not support political candidates, guests often address the board prior to meetings. Cox was questioned about her relations with David Malcolm. Sam Longanecker, a Crossroads II boardmember, recalls that Cox sought to distance herself from Malcolm in her response. “She said that her children and Malcolm’s children had grown up together,” said Longanecker, and that “you have no control over your friends and what they do. Ultimately,” Longanecker said, “she implied that she and Malcolm had gone their separate ways.”

The source close to Pacifica reported that another developer has been “courting city officials for the Pacifica site.” Although Pacifica has the exclusive right to develop, its contract expires in December.

Pacifica’s land is owned by Chula Vista Capital, led by Adnan Zakkout, and was purchased in 1994, according to the Union-Tribune. Mayor Cox, who has done consultant work for every major player on the bayfront — including Pacifica and David Malcolm — has had an enduring relationship with Zakkout. As far back as 1996, working as Zakkout’s consultant, Cox was advocating that a Padres stadium be built on Zakkout’s bayfront land. Cox’s 2004/2005 Statement of Economic Interests shows that she received income of between $1001 and $10,000 from a company called Global Financial and Consulting, whose address is 875 Prospect in La Jolla. Shortly after Cox assumed office, her calendar reveals that she met with Zakkout at his La Jolla office, 875 Prospect.

The situation arouses feelings of déjà vu. In 2000, developer William Tuchscher also had an exclusive agreement to develop Zakkout’s bayfront property. Then, according to a February 11, 2002 Union-Tribune story, David Malcolm “began trying to influence Chula Vista and Port District officials.” The U-T story was published after Tuchscher had filed a lawsuit against Malcolm, the City of Chula Vista, the San Diego Unified Port, and Lennar Corporation, which was interested in building a commercial waterfront development and a complementary residential project. “In his lawsuit,” the U-T story says, “Tuchscher alleges Malcolm improperly influenced Chula Vista officials to allow [Tuchscher’s] development deal to expire in 2000 so Lennar could take over the project.” Charges were dismissed against Malcolm and the port; the City of Chula Vista settled with Tuchscher for $850,000, and Lennar had to pay $2.2 million.

When Cheryl Cox became mayor, David Malcolm was not the only person she began to consult with about the bayfront plan. On December 13, 2006, eight days after Cox took office, she met with Chargers owner Dean Spanos and Chargers special counsel Mark Fabiani.

The Chargers have considered two Chula Vista sites for building a new stadium, one in east Chula Vista and the other, which they prefer, at the south end of the bay, on land the South Bay Power Plant currently occupies. Spanos has proposed financing the stadium by developing houses and office buildings in east Chula Vista.

This past January, the Chula Vista City Council indicated its interest in a Chargers stadium by voting unanimously to encourage the Chargers to go ahead with a financial feasibility study. The city attorney gave the vote a “thumbs up.” Mayor Cox speculated on a name change: “It would be neat if the team became the San Diego Chargers at Chula Vista.”

But the stadium is not a part of the master plan, nor has its impact on the environment been addressed in the master plan’s environmental impact report.

“It’s beginning to feel like bait and switch,” says Laura Hunter, who works for the Environmental Health Coalition and was a member of the Chula Vista Bayfront Master Plan Citizens Advisory Committee. “Why are they encouraging the Chargers? The language of CEQA is not benign. It requires analysis of projects that are reasonably foreseeable.” CEQA, the California Environmental Quality Act, is the law that requires an analysis of environmental impacts from proposed projects, which are often disclosed in environmental impact reports (EIRs). It’s no secret to anyone, including the California Coastal Commission and the State Lands Commission, that Chula Vista is considering a Chargers stadium. If the master plan is submitted without mention of the stadium and without environmental analysis of the stadium’s impact, the commissions may send everyone back to square one.

“They can’t get away with pretending that the stadium is unrelated to the rest of the bayfront development,” says Jim Peugh of the San Diego Audubon Society. “Trying to continue with the previous EIR without considering what impacts the stadium would have and then later doing a separate EIR for the stadium would not assess the cumulative impacts. That is called piecemealing, and piecemealing is called out in court cases.”

Peugh, who was also a member of the citizens’ advisory committee, says, “What the citizens’ advisory committee and the environmental communities have agreed upon was a careful balance with high-density development in the Harbor District and nonresidential development where the wetland resources are concentrated,” in the northern and southern areas of the bayfront.

He calls the economic feasibility study “silly and dysfunctional.” He argues that you cannot do a real cost study unless you look at what constraints the project will have to mitigate the environmental impacts. “How much area will you need for a buffer? What would it cost to prevent that light pollution to the J Street Marsh? What kind of trash handling and food storage will be required to avoid attracting feral animals that would kill the marsh wildlife? And what about the cost and the area that it would take to treat the runoff water from the huge parking lot before it goes into the bay. How much room will it all take? How can they compute the cost or what they could earn without knowing the answers to these basic questions?”

The bayfront area where the Chargers propose to build is next to one of the last mudflats in San Diego County. “An infinite number of animals and fish use it,” Peugh says. “It’s all life, it’s not inert. And the area is essential for migratory birds; they are dependent on it as a stepping stone during their long migratory flights.”

In a Union-Tribune interview on January 26, Fabiani displayed typical logic. He assumed that because Chula Vistans want to get rid of a power plant that is a source of pollution to the area, they would be happy to exchange it for Super Bowls, seasonal games, tractor pulls, motocross races, and swap meets.

Civic activist Sharon Floyd says that when Fabiani speaks of resident support he is primarily referring to a single town meeting on the east side of Chula Vista. Floyd points out that if the Chargers come to Chula Vista, they will “consume both sites, one for development income and the other for the stadium.”

Many people think the Chargers are using Chula Vista as a bargaining chip, a public flirtation in which Chula Vista would be the big loser. In a February 19, 2008 Union-Tribune story, sports writer Nick Canepa wrote, “All along, the Chargers have insisted they basically have given up on a new stadium within the San Diego city limits because of one man — City Attorney Mike Aguirre.… This is an election year, and Aguirre is being challenged by viable candidates. Would the Chargers consider holding back their current efforts to secure a new joint in Chula Vista and wait for the outcome of the city election? The answer, according to Mark Fabiani, the Chargers’ stadium point guard, is a resounding ‘no.’ ” A few days later, in his February 27 column, Canepa interviewed Padres owner John Moores on his “pet topic, the 96-acre Tenth Avenue Marine Terminal,” located in the city of San Diego. Canepa wrote that Mark Fabiani “has said the terminal would be an ideal spot [for a new stadium] because all roads, parking and infrastructure are in place.” Then Canepa quoted Moores on the subject: “ ‘Building a stadium on that site would be great for everybody.’ ”

For years when Greg Cox was mayor of Chula Vista, he wrangled with the Sierra Club over putting a 400-room hotel on Gunpowder Point, where the wildlife refuge now is. Later, he supported a proposal that included a shopping/entertainment corridor centered on a ten-acre man-made lagoon, with five hotels, 80,000 square feet of office space, and 150 acres devoted to a resort-style community. Mayors and companies have come and gone, politicians have been convicted, and land has changed hands. Meanwhile, Chula Vista’s residents have paid for countless studies, consultants, and lawsuits.