Residents give city a failing ‘grade’ in Archer Street rebuild

Steve Sillman stands on the deck of his rear guesthouse on archer Street, with his neighbors’ ongoing development in the background. Pat Sherman photos

By Pat Sherman

Residents in the 700 block of Archer Street (behind Bird Rock Elementary School) say city officials are allowing a neighbor to rebuild a home on their street in excess of height and size limits for its lot size.

Chief among their concerns is the architect’s use of a manufactured grade to exempt 500 square feet of the home’s ground level from being counted as part of the structure’s gross floor area, thus allowing it to exceed size and height limits.

Steve Sillman, who lives directly to the east of the construction site, said the half- completed home has robbed him and his family of coastal views and ocean breezes — all due to what he believes is a questionable interpretation of the city’s municipal code.

“They blocked all our views from our bedroom, from our bathroom and our forward bedroom,” Sillman said. “We purchased our house in 2006 and, obviously, it’s already gone down (in value) because of the recession. We’re fine with that; we made that decision. But now we’ve got a house next door that’s depreciated our house even more and basically circumvented the code to do it.”

The portion of the municipal code under scrutiny, 113.0234(b)(3), states: “Where the gradient along any edge of the at-grade space is greater than 25 percent, the unenclosed at-grade space shall not be counted as gross floor area.”

According to Sillman and others, this exemption is primarily intended for hillside properties where homes must be constructed on raised foundations or piers, due to a slop- ing grade that renders all or portions of the ground level unusable as living space.

A view of the covered patio beneath the home at 729 Archer St. that its owners say will be used as a play area for their children. It is not being considered by the city as part of the structure’s overall gross floor area calculation due to an interpretation of the municipal code that some neighbors are calling an egregious loophole.

A legal declaration dated May 17 by the project’s architect, Bird Rock resident Daniel Linn, said the property owners, Tracy and Emilio De Soto, have a young boy and an- other child on the way, and asked Linn to design this space as a covered play area for their children.

“I referenced a code section that provides a means to do this by designing an unenclosed area within the structural footprint that would have a sloping edge of greater than 25 percent,” Linn wrote in the declaration. “I have used this provision to design such areas a number of times in the past with successful outcomes. … I have never had a plan utilizing this outdoor space dis- proved by the city.”

Emilio De Soto said the ground-level covered patio space in question, which contains canned lighting in the ceiling, is designed as an outdoor play and “learning area” for his children to “ride tricycles, push trucks and do crafts outside.”

After city inspectors first responded to neighbors’ concerns, Linn received a Stop Work Order (SWO) from the city on May 5. Nine days later, the city asked Linn if he would consider deleting the third floor from the home.

The De Sotos then took the city to court.

Scott Rugg, who lives a few doors to the east of the contested development, said he and other neighbors were in court with the De Sotos.

A front view of the three-story house at 729 Archer Street.

“The city was aggressively arguing that this part of the (municipal) code was for homes on steep hillsides, and that manufactured grades didn’t count,” Rugg said. “We were all happy. Then, the city basically stopped talking to anybody around here” and reversed its decision.

According to Gina Coburn, communications director for the San Diego City Attorney’s office, the De Sotos sought a preliminary injunction asking the court to prevent the city from enforcing the SWO issued by the Development Services department, on grounds that the architect’s first attempt at a faux grade — a zigzag shaped retaining wall — complied with municipal code section 113.0234(b)(3).

Coburn said the court ruled the zigzag “grade” did not comply with the municipal code and denied the owners’ request for preliminary injunction.

The owners then submitted a redesigned grade to Development Services, which Development Services staff deemed compliant with the municipal code, and the city lifted the SWO.

The De Sotos next filed a dismissal without prejudice, which is being processed by the court, Coburn said. (A dismissal without prejudice means the present action is dismissed, but it is possible the plaintiff may file another suit on the same claim.)

What is left of Steve Sillman’s ocean view is visible from the deck of his Archer Street home.

What is leaving Archer Street residents scratching their heads is why the city determined that the architect’s first manufactured grade — the zigzagging wall — was noncompliant with city code, but his second attempt at a faux grade, essentially a dirt pile with a slope of greater than 25 percent, does comply.

Despite repeated queries from the La Jolla Light, as well as Sillman and Rugg, it’s a question the city is unwilling to answer.

However, speaking with the Light last month, architect Daniel Linn said the municipal code section in question does not explicitly state that the 25 percent grade need be an existing grade, and that manufactured grades also apply.

Rugg and Sillman characterize this as a workaround that is contrary, not only to the spirit and intent of the municipal code, but also the wording of the code, which makes exemptions in calculating gross area ratio, “if the gradient is 25 percent or greater” (Rugg and Sillman’s emphasis on “is”), as opposed to “would be,” wording Linn used in his declaration.

Linn said the preamble to the municipal code includes clear definitions for and distinctions between “proposed grade” and “existing grade.” Because the section of code Linn is referencing does not refer to the grade as either “existing” or “proposed,” Linn said manufactured grades are permissible to exclude portions of a structure from the gross floor area tally.

“‘Grade’ means it can be wherever the dirt ends up; you can maneuver it or lower it or raise it and that will be considered grade, compared to the concept of ‘existing grade,’ ” which is determined by a land survey, Linn said.

“I’ve been doing this in San Diego since 1986,” Linn added, noting what he considers a “drastic” rewrite of the municipal code in 2000. “I pretty much know the ins and the outs of it. … Manipulated is not necessarily a bad word, but it’s become pejorative based on what they think the results are.”

Linn said he knows of two other architects working along the coast who also frequently use this interpretation of the municipal code to exempt space from a home and build larger or higher than would otherwise be permitted.

Rugg cited a section of the municipal code that says a home’s third story may only be 70 percent of the lot’s width, though he said he calculated the De Soto’s third story to be 76 percent of the lot’s width.

Linn said he conducted a “very detailed analysis of this” in conjunction with middle management in Development Services, as well as the department director, Kelly Broughton.

“They even called one of the people involved in writing (the code) back in 2000 and ran my intentions by this person, and he said it was just fine,” Linn said. “I understand this is controversial and the neighbors aren’t nuts about losing some of their view. … On the other hand, it’s my clients’ right and that’s the directive that I was given. I don’t think it was my position to tell them you’re building it too tall, or too big.”

Asked about the canned lighting in the excluded first floor space, which some neighbors fear indicates that the De Sotos may intend to wall it off at some point and use it as livable space, Linn said, “If someone buys it, that’s not under (the De Soto’s) control, but the intent, clearly from day one, is that the kids would have some place to play bigger than a postage stamp.”

Sillman said he is still awaiting reply or redress, and will likely file suit against the city in the future.

ADDENDUM: Architect Daniel Linn said the De Sotos could have had a third story on their home regardless of the municipal code interpretation. In an earlier interview, he said, “The two issues are really not directly related to each other. … There’s nothing in the municipal code that would prevent the building from being three stories, regardless. It (just) would have looked different.”

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Posted by Pat Sherman on Aug 1, 2012. Filed under Featured Story, La Jolla, News. You can follow any responses to this entry through the RSS 2.0. You can leave a response or trackback to this entry

9 Comments for “Residents give city a failing ‘grade’ in Archer Street rebuild”

  1. Resta DaStory

    nice clarification on the Addendum….key point to the whole story is to understand 3 stories is right by Code on this lot and this interpretation would not have prevented a 3 story home in any way….which of course, leaves only one conclusion: LA JOLLA NIMBY!

  2. nice try

    It seems as though the Sillmans got a dose of what the neighbors got to the east of them when they built their maxed out house…make way for everyone's right to build within the rules/codes of the city.

  3. nice try

    What goes around comes around. The Sillmans did the same thing to the neighbors to the east . I'm sure they lost their views and privacy. As long as you follow the rules/codes of the city and are permitted !

  4. Troy

    You nailed it Resta. La Jolla Nimby is a polite adjective to Sillman and the other neighbor, Scott Rugg. Do they not believe that the construction of their homes may have obstructed the views of another neighbor when they were built?

    Sillman appears to believe he is legally entitled to something. If he sews there needs to be damages. What damages are there, loss of view? Nobody is entitled to a view, unless of course there is an easement on the property in question. If you have a view, open your blinds and enjoy it, for tomorrow it may be gone.

  5. Stella Blue

    I live in Bird Rock and in this neighborhood. My observations on the house being built.

    -Contemporary is not my style, but the house design is pretty refreshing and appears to be well thought out given it is probably the narrowest lot on the block, so kudos to the De Soto's and the architect. As different as it looks, it only has me curious to see the inside.

    - This house itselft is much smaller, and no higher than 6 other homes on this block, it just looks like the builders of the other homes opted for sloped roofing instead of a third floor. One house on the same side of the street has a crow's nest on, of all things, a third floor. All I can say is that this neighbor better not be one of those who is complaining.

    - What is the big deal with canned lighting in an outdoor area? Lots of people have them, but did you stop to ask anyone? Might they be outdoor speakers, or recessed heat lamps? There are also gas lines for a BBQ grill which lead me to believe they are actually going to use and enjoy the living space as outdoor. But how can the author Sherman, or any neighbor like Scott Rugg predict De Soto's intent?

    - If Steve Sillman's house is directly to the east, I bet he took someone's view when he or some developer built his house? Same goes for the monster house across the street from the De Soto house. That house was under construction for at least 5 years (maybe longer), and ended up taking someone's view.

    -Sillman is not the first to lose his view. And does this guy really believe he is entitled to a view for the rest of his life? Has anyone told him the only way he could be entitled to a view is if he owns the lot next door, or if there is an easement on that property?

    -Perhaps Sillman should spend more time playing with his children or at least taking better care of his own house than whining about what really is not much of a story…especially in La Jolla and Bird Rock.

  6. BRockDad

    Resta Dastory

    You clearly don’t know what you’re talking about. Their not arguing the option of a third story. The point is the architects design is to place a pile of dirt at an angle that serves no purpose other than to manipulate the codes that are in place to protect people against such projects. Allowing this open area to not count as part of the (FAR) is the ONLY way their able to build a third story.
    By not counting that area as part of the (FAR) as they apparently should have counted it, this has allowed them to build a much larger home than would otherwise be permitted.
    The neighbors should be upset.

  7. Marty

    Here are the Cliff Notes to this story….a man wants to build a home for his family so he hires an architect who is savvy as to how to interpret codes. They get plans approved by the city, then neighbors try to cause a stink. The city stops allowing the house to be built. The man and the architect revise the plans and the city approves it again. Then the neighbors take the story to the La Jolla Light. This is not a story at all. I feel sorry for the De Soto family to have to live next to these people. May their home be filled with happiness and love from within by family and friends. Now that they got their 15 minutes of fame, Sillman and Rugg need to get a life.

  8. Reba

    I know the De Soto family personally. When I told Emilio about this article, he said that such negativity is not worth his time and would not bother responding. So I decided to write in. Rather than wasting print on something as trite as this, you ought to consider interviewing him for a story for your paper. He is a self made success story. A Cuban immigrant who came here with his parents (legally), put himself through college and graduate school here in San Diego, raced as a professional triathlete for many years, and then built himself a multi-million dollar sportswear company from scratch with no help from anyone. His company is responsible for employing a few hundred people in San Diego County, including me, and a few hundred others in other parts of the United States. All De Soto products are manufactured here in San Diego, not outsourced. He and his wife and kids live a very healthy lifestyle both with proper diet and exercise and together they inspire a lot of people to do the same. They donate a lot of their money each year to a number of charities and non-profits in the community. Given how deceived I know the De Soto's were when this reporter told them there was a story that was going to be written about their home, it is unlikely that they want anything to do with your publication, but you really ought to know that anyone who knows the De Soto Family finds them to be wonderful and very kind people.

  9. Eric

    Readers give residents a failing grade.

    It Looks like the neighbors' attempt to take this to the media failed to get any traction. There is a condition for people like these residents…narcisisim.

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