City appeals court’s ruling on ‘Windemere’ cottage in La Jolla


Legal dispute remains long after Gill cottage’s demolition

In what has become one of San Diego’s lengthiest deadlocks between historic preservation and private property rights, the debate over master architect Irving Gill’s 1894 “Windemere” cottage continues.

Although the Craftsman-style home was leveled more than three years ago, the question of whether it should have been preserved — and the process by which it was demolished — is still slogging through the courts.

Most recently, the San Diego City Council voted 6-2 in closed session to appeal a Superior Court order from December 2014 in favor of property owners Frank and Mina Bottini, who purchased the Virginia Way property where Windemere was last located in January 2011.

Seeking to develop a modern, single-family residence there, four months after the Bottinis purchased the property they withdrew the former owners’ nomination to have the city designate Windemere historic. Several months after that, the Bottinis had their attorney, Scott Moomjian, ask the city to review the cottage for its historic significance (a step required to develop a property containing a structure 45 years old or older).

On Sept. 22, 2011 the city’s Historical Resources Board (HRB) ruled Windemere was not historic. That same day, the Bottinis requested the city inspect the property to determine if it was structurally safe. The city’s Neighborhood Code Compliance department declared the structure unsafe on Dec. 21, 2011 and ordered the Bottinis to obtain a demolition permit, which they did, demolishing the property two days later.

La Jolla Historical Society and its preservation committee contend Windemere was structurally unsound because the Bottinis removed key structural features and willfully exposed its interior to the elements.

In August 2012, the Bottinis applied for a coastal development permit to construct a new home there and in January 2013 city staff determined the Bottinis’ project was categorically exempt from environmental review under the California Environmental Quality Act (CEQA).

At issue is whether the demolition and proposed new development are separate projects. Preservationists contend they are not, and that the homeowners engaged in illegal “segmentation” of the project to avoid an environmental review that would have otherwise been required prior to Windemere’s demolition.

Both the La Jolla Community Planning Association (LJCPA) and La Jolla Historical Society (LJHS) filed appeals to the CEQA exemption, which the San Diego City Council upheld on Sept. 23, 2013, despite objections from the city’s Development Services Department.

La Jolla resident and District 1 City Councilmember Sherri Lightner made the motion to uphold the LJHS and LJCPA appeals, stating, “It is not appropriate to pretend (Windemere) never existed. Handling this any other way sets a dangerous precedent that will allow homeowners to intentionally damage and degrade a historic property to the point that it becomes a public nuisance in order to avoid historic designation so they can obtain a demolition permit from the city.”

The City Council also found the demolition permit was unlawfully issued while the cottage was being considered for listing on the California Register of Historical Resources. The Bottinis ultimately filed suit against the city.

Though in a Dec. 15, 2014 ruling, Superior Court Judge Katherine Bacal agreed with the appellants that, “CEQA forbids segmenting a project to evade CEQA review,” she said the Bottinis were not engaging in segmentation. “The demolition of the existing dwelling (Windemere) constitutes a project separate from the alleged anticipated construction of another building and the building permit should be viewed independently to determine whether CEQA applies,” Bacal’s ruling states. “The fact that the cottage has been removed was irrelevant to the project under consideration by the city.”

Bacal concluded the City Council’s decision to uphold the appeals was “an abuse of discretion,” and directed the city to reconsider the appeals in conformance with the views expressed in her ruling.

The City Council’s vote to appeal Bacal’s ruling was read during open session Feb. 3, the same day the City Attorney’s office filed the legal notice to appeal it.

Although a representative from Lightner’s office said she could not comment on “active litigation,” Frank Bottini told La Jolla Light he believes the appeal of Bacal’s ruling is “frivolous and entirely without merit.

“Judge Bacal ... (found) that the City Council’s resolution constituted a failure to proceed in the manner required by law due to the fact that the resolution was contrary to legal precedent and was not supported by the evidence,” Bottini responded, via-e-mail.

Bottini, an attorney specializing in securities, mergers and acquisitions, and shareholder derivative litigation, said he believes the March 2 California Supreme Court ruling, Berkeley Hillside Preservation vs City of Berkeley, adds credence to Judge Bacal’s ruling.

In the ruling, the City of Berkeley determined that the construction of a single- family residence was categorically exempt from CEQA review under the “single-family residence exemption” (the same justification San Diego’s Development Services Department made on Bottini’s property).

“The California Supreme Court case from March 2 constitutes binding precedent and conclusively establishes that Judge Bacal got it right and that the City (of San Diego), should it persist in its frivolous appeal, has no legal or factual grounds to support the appeal,” Bottini said. “The city’s legal briefing before Judge Bacal relied on the Communities for a Better Environment case, which was specifically disapproved of by the California Supreme Court in its March 2, 2015 Berkeley Hillside Preservation decision.”

A representative with the San Diego City Attorney’s office said it would likely take more than a year for the court to hear the city’s appeal and issue a decision.