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
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


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


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.”