By Dave Schwab
Kim and Bob Whitney, who want to build a mixed-use, three-story project in La Jolla Shores, are challenging the La Jolla Community Planning Association's (LJCPA) latest appeal of their project and plan to sue the group for violating the Brown Act — the state's open meeting law.
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 and the planning group, which voted 14-1 to oppose the project, contend the project’s bulk and scale is excessive and would conflict with the community’s small-village character.
But the Whitneys, who bought the property in 2007, are challenging the planning group’s right to appeal the project to the City Council.
In January, the city Planning Commission voted 5-0 to approve development permits and declared that an environmental impact report for the project was unnecessary. That vote would have let the project proceed except that LJCPA President Joe LaCava has appealed the decision to the City Council, which the Whitneys say was done without action by the full board and thus a violation of the Brown Act.
They also contend that a series of e-mails among planning group members constitutes in an attempt to reach “collective concurrence” and is also a Brown Act violation as well as of City Council and LJCPA rules.
LaCava acted under a policy revision the group approved in December that allows the president to appeal a project that they had previously objected to without a vote as long as they ratify the action at a later meeting. The Whitneys contend that never happened.
It’s that decision which the LJCPA is appealing and the Whitneys are disputing.
“Our position is an appeal of the environmental documents is invalid because the project is no longer appealable,” said Robin Munro Madaffer of the law firm Schwartz Heidel Sullivan, who is representing the Whitneys.
“The City Council remanded the project back to the Planning Commission, which recertified the same environmental document, so the project is not appealable.”
Gina Coburn, communications director for the City Attorney, said the Whitney’s claim is under advisement.
“It is being reviewed by City Planning and Community Investment Department which oversees the planning groups,” said Coburn in an e-mail last week. “When they have concluded their fact-finding there will be a response.”
Regarding the Whitneys’ challenge of LJCPA’s appeal, Munro Madaffer noted: “The LJCPA had to have a vote to decide to file an appeal and they did not do that. They never put it on the agenda. They never discussed it. They are in violation of the Brown Act and they must withdraw their appeal.”
Madaffer added, should the city rule against their challenge the Whitneys would “continue to assert these claims” and will consider “filing a lawsuit in order to enforce their rights and enforce fairness.”
Joe LaCava, LJCPA president, said the advisory group is taking the Whitney’s challenge to the process by which the group filed its appeal “very seriously,” adding the group feels “we’re complying with our rules and took appropriate action in agreeing to ratify the appeal.”
LaCava said the project is trapped in a legal “loop,” causing it to bounce back and forth between the City Council and Planning Commission.
“I’ve been told by the city that eventually, one side or the other tires of the bouncing back and forth and proceeds to litigation," he said. "That’s how other projects have escaped that loop.”