Council’s Error Puts Brakes on Building Ban

A highly publicized moratorium on North City sewer connections called for by the San Diego City Council has never been enacted.

As a result, developers have been applying for and receiving permits for the sewer connections at twice the normal rate, said a city Water Utilities Department official.

And the city Building Inspection Department continues to issue building permits for the areas leading to the undependable Pump Station 64 in Sorrento Valley, which has what state pollution officials say is an “abysmal” record of spilling millions of gallons of sewage into Los Penasquitos Lagoon.

Councilwoman Abbe Wolfsheimer, who persuaded her colleagues to call for the temporary ban more than two weeks ago for public health reasons, said Friday that the council’s action, which was deemed insufficient because of a technicality, is now a “sham” because developers are continuing to get permits.

But Wolfsheimer said she is confident that the council will correctly pass the moratorium when it considers an emergency ordinance Monday.

On June 24, the council voted unanimously to hold off issuing building and sewer connection permits until July 29 for the fast-growing areas of Rancho Penasquitos, Mira Mesa, Scripps Ranch, Sorrento Valley and North City West--part of the 100-square-mile service area leading to Station 64.

The council chose July 29 because it is one day after the city is scheduled to tell the Regional Water Quality Control Board what emergency measures it will take to prevent further sewage spills from the station. The council billed its five-week moratorium as an “extraordinary commitment” to fix the pump station’s problems.

Representatives of the building industry--led by Michael Madigan, vice president of Pardee Construction and chairman of the Greater San Diego Chamber of Commerce--reluctantly told council members at the June 24 meeting that they would go along with the ban. They and city officials left the meeting thinking the moratorium was in effect.

Yet within days, city officials and building industry representatives realized the council’s action was not binding. Kim Kilkenny, lobbyist for the Construction Industry Federation, said the council “missed the mark procedurally” in its June 24 vote if it had wanted the action to take effect immediately.

“The action they took sounded as if it was a moratorium, and I thought it was a moratorium until I read the resolution,” Kilkenny said. “By the time we figured it out and started placing our calls around, it was apparent that other people had figured it out.”

Developers have continued to ask for and receive permits in the moratorium area. The city’s Building Inspection Department has granted 511 building permits since June 24, an aide to Wolfsheimer said.

The city also has received 225 permits for sewer connections in the Station 64 service area, said Yvonne Rehg, a water department public information officer.

Rehg said the number was twice the normal rate.

“I can only speculate it’s because people were anticipating a moratorium and when the ordinance was postponed, they took advantage of it,” she said.

Kilkenny said developers continued to get permits because a City Charter provision governing emergency actions requires the council to pass an ordinance proclaiming the moratorium; instead, it passed a resolution.

Also, he said, the council is required to list the “findings” for an emergency measure. The two-paragraph resolution lists no such reasons, he said.

On June 30, council members had their first chance to make the moratorium official when the city attorney’s office presented them with a properly drafted emergency ordinance enacting the ban.

But the emergency ordinance needed six affirmative votes to pass. And by the time council members got around to taking a vote late in the day, only five of the nine members were still at the session.

The council was missing a mayor and Councilwoman Gloria McColl, who had voted for the ban on June 24, was on vacation that day, leaving seven members.

The council lost another member when Bill Cleator walked out of the meeting.

Cleator did not return telephone calls to his office and home late Friday. His wife, Marilyn, however, said her husband did not leave the meeting early to go on vacation; the couple set sail on a cruise the next morning.

City records show that one more council member left the meeting, leaving only five and not enough to pass the ordinance.

Wolfsheimer said she remembers Cleator and Uvaldo Martinez being absent. The clerk’s records show that Martinez was present for a vote immediately before the emergency ordinance came up for discussion, but was gone for a vote immediately after.

Martinez did not return telephone calls to his office late Friday.

Without the necessary six votes, the council was forced to continue the proposed moratorium until July 1 and again to July 7, the date of Mayor Maureen O’Connor’s inauguration.

McColl had returned from vacation and Martinez was present, but the council never got around to talking about the proposed moratorium. Rather than be late to the 6 p.m. inauguration, council members continued the measure again, until Monday.

Assistant City Manager John Lockwood said that, without the emergency ordinance enacting a moratorium, the city is obligated to grant the permits.

“Even if we wanted to, I don’t know how legally we can deny a permit,” Lockwood said.

“It would be very inappropriate for us to assume that it (the moratorium) would be adopted and take some action on that presumption. If that were the case, the administration would be setting policy, and we shouldn’t do that.”

Lockwood said there have not been any problems with Pump Station 64 since the council called for the moratorium.

One of the companies that continued to apply for and receive permits is Pardee. Madigan said Friday he did not consider that a contradiction from what he told the council June 24.

“If you’re asking me why I would eventually go back in for a building permit, there was no moratorium established and we simply would have been at a competitive disadvantage with every other builder in San Diego,” he said.

“We’re talking five weeks of sales during a time when interest rates are down,” he said, adding that, without building permits, his company cannot sell lots.

Still, Councilwoman Judy McCarty said Friday that the issuance of permits is “not what any of us intended.” Informed for the first time that the permits were still being granted, McCarty said, “Certainly, it may be the letter but not the spirit of the law.”

And Wolfsheimer said she was “irate” that she learned only Friday about the number of new permits, although she had been asking for figures from city staff members all week.

“I think if I were sitting on the Water Quality Control Board, I would think it (the council’s call for a moratorium) was a sham and I would be irate because of the lack of cooperation and lack of interest in preserving the public health,” she said.