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La Jolla Mesa resident sues neighbor over ‘multiple violations’ in construction and planting

A view from Tom Sparrow's home shows vegetation that he says was planted without permits.
(Courtesy of Tom Sparrow and Sean Brew)

After more than a decade of waiting for a change to work the city of San Diego says was unpermitted, Tom Sparrow is taking a La Jolla Mesa neighbor to court, looking to get the work removed or retroactively permitted.

The issue dates to 2009, when the city first cited Kevin Fialko, a resident of the Muirlands Panorama planned community, over what it said were “multiple violations … for building structures without permits, illegally grading environmentally sensitive lands, etc.,” according to Sparrow’s attorney Sean Brew. Key among them is construction of a keystone wall near a canyon and planting a tree near that wall that blocks neighbors’ views.

Despite multiple attempts to open and reopen the case, the most recent in 2019, the wall and tree remain.

“My wife and I moved to our house in 1983 and it was an old ranch-style house that was built in the 1950s,” Sparrow said. “We bought it because it was beautifully set on the site and had a great view out the back. We could see the city, Mission Bay, the bridge, the skyline, it was wonderful.”

A photo shows the view the Sparrow household once had.
(Courtesy of Tom Sparrow and Sean Brew)

The Sparrows later remodeled the house under the “50 percent rule,” which allows developers to bypass a coastal development permit if they retain at least 50 percent of the original walls.

“A neighbor moved in a couple doors down … on the last lot in the subdivision on the south side, so it was wide open in front of the house,” Sparrow said. “I noticed some construction activity going on at the rear of the property in the sensitive lands, which is restricted. A keystone wall was being built and some planting went there. I notified the owner and let it be known I was concerned about that and the viewshed. The owner continued and said the covenants, conditions and restrictions, or CC&Rs, of the community are not enforceable.”

Sparrow contacted San Diego’s code enforcement division and says an inspector assessed the site and found “a bunch of violations.”

But after Sparrow’s complaint was filed in 2009, “the file was shelved for eight years,” he said, and there was limited communication from various city departments.

“I got another code enforcement person to come and I explained the history and the case was reopened,” Sparrow said. “The tree had grown by this point, and it took out 70 percent of our view. [The code enforcement officer] got her crew to evaluate the property. ... They found that things that were supposed to be fixed were not fixed.”

In 2019, the city settled with Fialko. The city attorney’s office said this week that the terms included “a permanent injunction, payment of civil penalties and compliance measures. The property owner has applied for permits as required by the judgment and the permits are being processed.”

Fialko kept his comments to the La Jolla Light brief due to the litigation but said, “I’m working with the city and have my permits in process.”

“I try to get along with my neighbors and everyone,” Fialko said. “I’m an Air Force veteran. I want to enjoy my property and try to keep the peace.”

But Sparrow said “we want to make sure that the city codes as written are maintained by the community and if there is a violation of the code that the city follows up and takes appropriate action to protect the neighborhood. We would like to have our viewshed back, but if not, we want him to get the permits to get that wall.”

A trial date in the lawsuit has been set for Jan. 27.

A spokesman for the code enforcement division did not respond to the Light‘s request for comment. A city audit released recently said code officers are slow to investigate many cases and to issue fines and other penalties that can be crucial to gaining compliance.

The city’s backlog of code enforcement cases approximately doubled between January 2018 and January 2021 — from 3,178 to 6,306, the audit found.

Some cases are active for more than 600 days without a written notice being issued to the property owner involved, and a significant percentage of active cases don’t get follow-up inspections, according to the report.

The audit blamed the code enforcement problems on excessive workloads for compliance officers, inaccuracies in how they collect and use data, and a failure by officers and their supervisors to effectively use case-management tools the city pays for. ◆