Project opponents reject Whitney's claim of Brown Act violations

By Dave Schwab

Staff Writer

Opponents of Bob and Kim Whitney’s controversial proposal to build a mixed-use, three-story project in La Jolla Shores have labeled the developer’s allegation of Brown Act violations by the La Jolla Community Planning Association (LJCPA) “totally irresponsible” and “without merit.”

“Whitney and his lawyer made broad-based allegations without tying it to any specific code section at all in saying the planning group violated the Brown Act (calling for open and transparent public meetings),” said Bernie Segal, a Shore resident who has been vocal in his opposition to the project. “Their attack is totally unjustified and an effort to try to impose on La Jolla a massive project this community does not want.”

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.

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 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.

The planning group's appeal, originally scheduled for March 29, has been postponed until May 3 at 2 p.m.

Segal and attorney Julie Hamilton, who represents the project's opponents, say the couple's Brown Act violation claim is a red herring.

“All of this is an effort to try and avoid coming to grips with the community, which is opposed to the massiveness of the project,” said Segal. “They need to exhaust their administrative remedies, which they never did.”

Segal responded to another Whitney contention that a series of e-mails among planning group members about their project constituted an attempt to reach “collective concurrence,” an alleged Brown Act violation as well as a violation of City Council and LJCPA rules.

“I believe the Brown Act does not apply to private individuals, only the government,” Segal said. “In this case, there’s no need for that. The CPA ratified what it had previously done. Their contention that one or two trustees’ exchanged e-mails was a collective action — that’s a joke.”

Hamilton said the Whitneys' threatened lawsuit against the planning group could backfire.

“The reality is there is simply no merit to his allegations,” she said. “He stands the risk of losing the lawsuit and having some form of sanctions against him because it’s a frivolous action.”

Hamilton said the Whitneys claim of Brown Act violations by LJCPA is simply an attempt “to try and keep the planning group from doing their job.” She said the advisory group simply has established a policy allowing the president to file an appeal in between meetings if the group previously denied a project in an open meeting.

The Whitneys contend the new rule requires follow-up action by the group after the fact and say that never happened so the appeal must be withdrawn. Their attorney has sent a “cure and correct” request to the La Jolla Community Planning Association with a request for action by April 2. If no action is taken by then, they will ask the court to invalidate the action, the letter states.

The group does not meet again until April 7, but LaCava has said they are taking the challenge "very seriously."

Both Segal and Hamilton believe it is still possible for the Whitneys and the community to reach a compromise.

“Were they to reduce the project to a scale more compatible with the rest of the development in La Jolla Shores commercial center, they’d be able to get the community’s support,” Hamilton said. “The building is too big for that project site. By reducing the size of the building, you’d solve all of the other problems because you’d have more space to work with.”

“If you were to scale it down it would be welcome,” agreed Segal. “Once you have a building of this magnitude permitted, every other storeowner on the block will want to do the same thing.”

Segal and Hamilton contend the Whitney project’s Floor Area Ratio (FAR), the percentage of the lot taken up by the building, is excessive.

“It’s about 50 percent larger than it should be to be compatible for this type of property,” said Segal.

Whitney says there is no FAR limitation on commercial-zoned property in La Jolla Shores. He has a letter from former city architect Michael Stepner backing his position as well as a note from 2007 from Dale Naegle, the original architect on the project who owns the adjacent property and is now opposed to Whitney’s plan.



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