By Dave Schwab
Bob and Kim Whitney, developers of a controversial, three-story mixed-use project in La Jolla Shores, have filed a lawsuit against the La Jolla Community Planning Association (LJCPA), a nonprofit corporation.
The lawsuit alleges that the advisory group, which makes land-use recommendations to the city of San Diego, violated the Brown Act of California. The Brown Act prescribes that meetings of public commissions, boards and councils be open and that their deliberations not be carried out behind closed doors.
San Diego attorney Richard A. Williams filed the lawsuit on the Whitney’s behalf.
The suit alleges that the LJCPA illegally filed a governmental appeal dated Jan. 27, 2011 following “a secret vote by several trustees in violation of the Brown Act," according to the suit.
The Whitneys also claim in their suit that the LJCPA “violated their constitutional rights" in denying them participation at LJCPA meetings.” The suit also claims that one LJCPA trustee, architect Phil Merten, “made prejudicial and inaccurate statement about the Whitny Project while seated as a LJCPA Trustee, and then voted on the project.”
“Merten’s active opposition to the Whitney Project is at least improper and certainly prevented him from making a fair decision,” states the lawsuit. “For that reason, Merten should have recused or abstained from the voting.”
At the LJCPA’s monthly meeting last week, group president Tony Crisafi noted the Whitneys had filed a lawsuit against the group, and that the City Attorney had agree to represent them. The City Attorney’s office subsequently confirmed that.
Asked his reaction to being named in the lawsuit, Merten said, “I would like to respond but unfortunately, under the advice of the City Attorney, we’re simply prohibited from discussing it with anyone right now."
The Whitneys refused comment deferring to their attorney, who could not immediately be reached for comment.
The lawsuit seeks to have it declared that the LJCPA is subject to the requirements of the Brown act which it violated, asks that the LJCPA be directed to dismiss its illegal appeal application and seeks plaintiffs’ attorney fees.
The Whitneys have proposed demolishing a one-story residence and store at Avenida de la Playa and Paseo Grande in La Jolla Shores and replacing it with 2,300 square feet of street-level retail space with parking underground and two condos above.
In July 2010 their project was approved by a city hearing officer, but it has since been subjected to multiple appeals.
Some Shores neighbors, with the concurrence of La Jolla advisory groups, contend the Whitney Project’s bulk and scale is excessive and would conflict with the community’s small-village character.
"This lawsuit by the Whitneys is so frivolous and devoid of merit that it ultimately could subject them to personal liability for having brought it,” said La Jolla Shores resident Bernie Segal. “The lawsuit seeks an order of the court ‘dismissing the appeal’ of the LJCPA, which appealed the Planning Commission’s decision to allow the Whitneys’ to build a massive development. The LJCPA was looking out for the residents of La Jolla when it opposed the Whitneys’ project in its present massive configuration, and the City Council saw merit in the LJCPA’s position when it granted the LJCPA’s appeal. Instead of trying to accommodate the LJCPA’s concerns by toning down the size of their project, the Whitney’s have started a court action to impose their will on the residents of La Jolla.”