Exceptions to Rules on Zoning Pose Big Threat to Beleaguered Canyons

Times Staff Writer

It is the San Diego version of the Domino Theory.

In early 1980, the first domino fell when an architect convinced the city's zoning department to give him permission to ignore some city standards for the design of four condominiums on land sloping into Dove Canyon, a scenic landmark in the upscale neighborhood near the UC San Diego Medical Center in Mission Hills.

In 1982, the next domino fell when the zoning administrator approved another variance, this time for the construction of a concrete home also on the slope, where Eagle Street dead-ends because of the sharp drop.

In 1983, the next domino: The zoning administrator granted a variance that made it possible for yet another house, even deeper into the canyon, to be built.

Those decisions, made quietly within the recesses of local government, silently seeded a neighborhood rebellion that may soon spill over in front of the City Council as one of the most significant, if not hottest, political wars over canyons in years.

The battle in Mission Hills and related communities will be important for two reasons.

First, worried residents are asking the city for an emergency ordinance that would stave off development along canyon walls and other hillsides for at least a year. The proposed moratorium would change the zoning to make it impossible for builders to erect apartments and condominiums on slopes.

The City Planning Commission will hold a hearing on the moratorium May 30, before forwarding the matter to the City Council.

Secondly, the Mission Hills fight is shaping up as a test case for a new approach to permanently foil development in the canyons. This method--forcing builders to transfer their projects to other parts of the neighborhood--could become the vogue in places like Golden Hill and Clairemont, where canyon wars have been setting off political tremors.

At the heart of both requests is a crucial philosophical dilemma:

If the city doesn't have the cash to buy a canyon outright, just how far can it go to restrict development on the slopes without depriving private property owners of the constitutional right to make "reasonable" economic use of their land?

The perfect forum for this debate is Uptown--an area bounded by downtown on the south, Old Town on the west, Mission Valley on the north, and University Heights on the east.

It is blessed with some of San Diego's most pristine canyons. There are 445 acres of slopes and hillsides that either rise steeply from Mission Valley, funnel toward downtown or roll gently toward the bay.

Formerly staid neighborhoods like Mission Hills and Hillcrest have been converted into vibrant communities of trendy, upwardly-mobile young professionals--many with families--eager to live the 1980s urban life style.

Washington Street and 5th Avenue offer fine restaurants and boutiques and rows of shops featuring chicken pie, pasta, exotic chocolates or fine cookware.

The attraction translates into a strong demand for housing, and developers are looking for empty lots or older homes they can tear down to clear the way for apartments, townhouses and condominiums. Six hundred new housing units have been added since 1980, statistics show, and population has increased 4,000, to 37,200.

This kind of surge in popularity has affected the canyons.

"The canyons are not inviolable," said John C. Lomac Jr., chairman of the Uptown Planners, a citizens advisory group.

"It's a fortuitous coincidence that the recession made it difficult for anybody to build anywhere, which explains why we haven't had a lot of canyon development from 1980 to the present date," said Lomac, whose own home is perched at the top of Dove Canyon and offers a beautiful view through eucalyptus trees.

Now that the economy has been revived, the planning group has noticed a batch of development plans targeted for canyon slopes--plans that will nibble away at the hillsides, Lomac said.

For instance, UC San Diego last month opened a 1,100-car parking garage built in the Bachman Canyon, located directly east of the hospital. Entrance to the six-story, earth-tone structure is provided by a new road running through the canyon from Mission Valley.

Across the way, developer Gary Thomas is nearing completion of 11 condominium units at 4055 Eagle St., overlooking the Dove Canyon. And Lomac says the community group in recent months has heard at least four other proposals for an additional 48 homes or condominiums in that canyon.

There have been two other proposals for a total of 37 housing units in or around other nearby canyons.

Except for the parking garage in Bachman Canyon--the city had no control over that project because it was state land--development plans in Uptown canyons are made possible by what residents say is a sort of zoning loophole.

Parcels of land are zoned for apartments and condominiums, although they are on steep canyon walls. That zoning, imposed when there was little concern for canyons, makes it legally possible for property owners to build in the areas some residents want to preserve.

While zoning has opened the way, a series of decisions by city officials helped promote development in Dove Canyon. One crucial decision, made by the zoning board in October, 1983, approved a two-unit town house in the canyon.

At first, the zoning administrator blocked the project. He turned down a request by the property owner to permit him to build the two-story structure, which is in a special "hillside review" zone, and it didn't meet other city specifications for such things as how far away from the property line outside walls should be. Buildings built in the hillside review zone require special permits.

The city's planning department asked for the denial, arguing "construction would significantly disturb the canyon and open space," records show.

During his appeal, however, the property owner pointed out that the zoning department had already granted variances for projects intruding into Dove Canyon. There was the 1982 decision for the concrete house and the 1980 decision on the four condominiums.

Swayed by that argument, the appeals board overturned the denial.

That decision, in turn, provided the perfect legal wedge for another, larger project one block south on Eagle Street.

That project was a bid by developer Thomas to replace an older house with 12 condominiums. The plan met rejections from the city's planning department and planning commission.

"The canyon is both unique and pleasant," said a planning department report. "It provides light and air circulation for the area, a view panorama and a rural character to an area within a larger urban environment."

It warned that the Thomas plan would "encroach" into the canyon and produce a "walling-off effect, which, if carried out on other canyon rim properties, would reduce its natural value to the community and the city . . . . Approval of this project could serve to encourage and support other insensitive encroachments into the canyon."

But John Thelan, Thomas' attorney, appealed the decision to the City Council and argued, in part, that the zoning department had already permitted encroachments, like the town houses. He also offered architectural changes in the project that would pull it closer to the canyon rim and drop the number of units to 11.

The council ruled in Thomas' favor.

The case exposed a gaping loophole in the city bureaucracy. The zoning department was approving hillside development, although the planning department was responsible for reviewing all canyon-area projects. Neither department knew what the other was doing, and before the loophole was closed, the dominoes had begun to fall in Dove Canyon.

The decision also set off alarm bells in Uptown. Lomac was elected chairman of the planning group and is in the forefront of a growing neighborhood militancy.

Lomac said the planning group and city staff members began working on a better way to keep development from dribbling into the canyons. The plan was to update the community plan in a way to neutralize the so-called zoning loopholes on the slopes.

What has resulted from months of research is an 81-page proposed ordinance that seeks to save the canyons through a process called "transfer of development rights."

The transfer, used in places like New York City and Miami Beach, would attempt to balance environmental concerns and private property rights by recognizing a developer's ability to build something, but forcing him to build it somewhere else.

In the Uptown proposal, the city would give a developer what amounts to a line of credit. For example, if the zoning would allow a developer to build 20 units on a canyon slope, the city would give him a line of credit worth 20 units.

Instead of building in the canyon, the developer would be forced to transfer his 20 units to a special zone along Washington Street and Fifth Avenue. If the developer doesn't own a piece of property along those streets, he would be free to sell his 20-unit credit to someone who does. The buyer of the 20-unit credit then would be allowed by the city to add the units to his building, despite the zoning limits on the property.

The idea of all this is to ease the pressure on canyons and hillsides. According to some planning department estimates, the plan would transfer up to 3,000 potential apartment and condominium units from canyon slopes to the special zone.

But the plan poses other problems. By transferring that many apartments and condominiums along the two popular streets, planners acknowledge the city may be creating another headache by straining municipal services and promoting traffic jams in an area already well-traveled because of its popularity.

While these issues are destined for debate, the community planning group hoped to arrest further canyon development by asking for the emergency building moratorium. Lomac made the formal request in a City Council committee hearing last month.

"We don't want to somehow lose what we have, because there is a lag time between what is and what ought to be," Lomac said later.

"We've got projects on the boards right now that we don't think satisfy the community interest," he said. "This is one way to say, 'Hold on. Let's just everyone get their hands on the table . . . .' "

Lomac predicted the interim ordinance, along with the new attempt to save the Uptown canyons, would pass.

"I think we'll roll past the planning commission," he said. "Then it's just a matter of how many people we can get down to the council with pots and pans."

So far, developers aren't taking too kindly to the proposed moratorium.

Geoffrey L. Cohen, who had plans to build 14 condominiums along Dove Canyon, said he has changed his mind. Cohen was in the process of buying a house at 4133 Eagle St., which he planned to tear down to make way for the development.

But when he met with Lomac and other members of the community group May 8 to discuss his plans, he was uncomfortable with the uncertainty of his prospective investment. He said he changed his mind and immediately pulled out of the deal.

And James C. Martinez, another developer with plans for Dove Canyon, said he believes the moratorium and new community plan is just "fancy footwork for land-taking."

Martinez said the emergency ordinance would effectively reduce the density of his zoning at 820 W. Montecito Way, where he wants to put in an eight-unit condominium, from a possible 16 condominiums to nothing.

If the city wants the land so badly, he argues, it should pay him cash, not use zoning powers to keep him from building.

"What they're attempting to do is steal the land, just like a thief or a pickpocket would steal out of your pocket in any other manner," Martinez said.

Countered Lomac: "I don't think the zoning (attached) to a person's property is an inalienable right. Rezoning is a reflection of the mood of the body politic."

Lomac and other residents are confident the mood at City Hall--where four council members are facing reelection this fall--will mean success for their cause.

But if they lose these battles, the community will continue to fight the war over canyons, he said. The community planning group is willing to make it tougher for every developer with a notion to build on canyon slopes and other hillsides.

"The Uptown Planners are in a position to appeal every project to the Planning Commission and the City Council," Lomac said.

Those are fighting words.

Tuesday: The city's efforts to preserve canyons for open space appear inconsistent and are only partially successful.

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