In a tentative ruling released Friday, a judge warned the backers of a new bridge and parking plan for the western entrance to Balboa Park that a crucial piece of their argument may not hold up in court.

The tentative ruling gives a sense of Superior Court Judge Timothy Taylor’s inclination before the two sides meet for oral arguments Friday afternoon, when things could change.

There are three main arguments in the lawsuit filed by opponents, the Save Our Heritage Organisation.


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Taylor disagreed with two of them.

But, in a “reluctant conclusion,” Taylor writes that the city violated its own law for historic properties.

In approving the plan on July 9, the City Council had to make a determination that if it did not approve the project, the landowner (the city) would suffer “economic hardship” — that there would be “no reasonable beneficial use of a property” without the designed project.

The judge said no way.

The Plaza de Panama team had three arguments to support this finding:

• By not approving the plan, the city would be on the hook to pay for benefits to the park that have already been part of city plans.

• By rejecting private money from philanthropist Irwin Jacobs and others, the city would be essentially taking money out of its own pocket.

• By allowing the park to continue as-is, without improvements, the plazas would someday become unusable.

On that last one, the judge smacked down the futuristic speculation:

[City law] does not say there “will in the future be no reasonable beneficial use of a property.” It says “there is no reasonable beneficial use of a property” — denoting today, right now, based on present facts, not future facts.

Taylor said neither increased traffic, nor the plaza’s use as a parking lot, renders the land without any beneficial use:

Certainly the rare Balboa Park visitor who actually finds a parking spot in the Plaza de Panama finds that spot “beneficial” on that particular day. Parking lots are a lawful and reasonably beneficial use, even if an undesirable one.

On the other two arguments about the funding offered by philanthropists to build the plan, the judge agreed they’re relevant in talking about the “economic hardship” but don’t help him conclude the plaza would have no beneficial use without the project.

He wrote that the opponents are entitled to what they’re seeking — an order for the city to rescind its approval of the project.

… the law is the law, and the court is bound to follow it. The City has, in other contexts … asked the court to rigorously apply the City’s own law to others. The court’s duty is to do likewise when others demand that the City be held to its own law.

But he seems to find his own ruling bittersweet:

Not lost on the court is the very real possibility that this decision will cause [the Plaza de Panama team] to abandon its efforts to raise money for a long-desired project in Balboa Park, and at a minimum render very difficult a centennial celebration along the lines hoped for by so many. The court agrees with the [proponents] that the positives from the project seem to far outweigh the negatives. The loss of the generous funding … will be a sad day for San Diego, because no other funding source has been identified, and the City’s own perilous (and partly self-inflicted) financial problems have been well documented and likely preclude public funding of any significant alternative project. … SOHO’s opposition to the project seems short-sighted, as the project appears to offer many net benefits in terms of restoration of historic resources.

Here’s more from the two arguments on which the judge leans in support of the Plaza de Panama team:

The judge ruled that the environmental document filed by the city and the Plaza de Panama Committee was “more than sufficient.” Alternatives to the project, including SOHO’s favored “Lewis plan,” received adequate public review and discussion, the judge said.

“The court finds the City’s consideration of project alternatives to have been above reproach,” wrote Taylor.

Opponents had invoked an 1870 statute that Balboa Park be a “free and public park” as a way to challenge the plan’s paid parking structure. But the judge said the statute is no more than a “historical curiosity”: “The 1870 statute has, for purposes of guiding public decision-making regarding Balboa Park, been a dead letter since 1872, 1889, or at the latest since … [1932].”

The Plaza de Panama team circulated an email Sunday night to supporters saying they’ll “vigorously argue” against the judge’s tentative ruling at Friday’s hearing.

CityBeat bid the project a tentative “adios” in a post earlier today.

I’m Kelly Bennett, reporter for Voice of San Diego. You can reach me directly at kelly.bennett@voiceofsandiego.org or 619.325.0531.

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Disclosure: Voice of San Diego members and supporters may be mentioned or have a stake in the stories we cover. For a complete list of our contributors, click here.

    This article relates to: Balboa Park, Community, Government, News, Parks, Share

    Written by Kelly Bennett

    Kelly Bennett is a freelance contributor to Voice of San Diego. You can reach her directly at kelly@vosd.org.

    48 comments
    Richard Ross
    Richard Ross subscribermember

    Those cities could not function today without their more extentsive alternate transit systems. In recent years L.A. Realized it erred in letting G.M. Tear up much of it's lite rail system to promote it's diesel buses. As a result it has been restoring those rail lines.

    Activist
    Activist

    Those cities could not function today without their more extentsive alternate transit systems. In recent years L.A. Realized it erred in letting G.M. Tear up much of it's lite rail system to promote it's diesel buses. As a result it has been restoring those rail lines.

    Jim Jones
    Jim Jones subscriber

    The park grew up with the auto, the claim that the park was ever a car free zone is unfounded. The photographic evidence is overwhelming. As long as there has been cars in San Diego, cars have been in the park.

    Jim Jones
    Jim Jones

    The park grew up with the auto, the claim that the park was ever a car free zone is unfounded. The photographic evidence is overwhelming. As long as there has been cars in San Diego, cars have been in the park.

    Richard Ross
    Richard Ross subscribermember

    Apparently Shawn1874 would be opposed to such events as the. 2015 expo.

    Activist
    Activist

    Apparently Shawn1874 would be opposed to such events as the. 2015 expo.

    Sara_K
    Sara_K subscribermember

    San Diego has *got* to stop basing projects and transportation plans with the highest priority placed upon personal vehicle conveyance. We should be planning for a future of access to Balboa Park (and the rest of San Diego) via light rail and, in limited fashion, busing. No parking required.

    Sara_K
    Sara_K

    San Diego has *got* to stop basing projects and transportation plans with the highest priority placed upon personal vehicle conveyance. We should be planning for a future of access to Balboa Park (and the rest of San Diego) via light rail and, in limited fashion, busing. No parking required.

    shawn1874
    shawn1874

    I'm not so sure. Both of those events were a nightmare when I last attended. I didn't find either to be enjoyable. Parking options are terrible. Even if you try to take transit or private buses, the traffic is a nightmare. I spent more time getting to and from December nights then I was able to spend in the park. I guess that the traffic and parking nightmares need to be preserved since it is a "historic" site. As long as enough people will continue to put up with that, nothing will change.

    shawn fox
    shawn fox subscriber

    I'm not so sure. Both of those events were a nightmare when I last attended. I didn't find either to be enjoyable. Parking options are terrible. Even if you try to take transit or private buses, the traffic is a nightmare. I spent more time getting to and from December nights then I was able to spend in the park. I guess that the traffic and parking nightmares need to be preserved since it is a "historic" site. As long as enough people will continue to put up with that, nothing will change.

    Erik Hanson
    Erik Hanson subscriber

    Jim: since there was no Plaza before 1915, it would not have been physically possible to park in the Plaza before 1915. It was taken over by the Navy for WWI shortly after the 1915-1916 Expo, there was limited parking in the late teens-early 30s and parking was not allowed during the second Expo and during WWII. Amazingly, parking was even Allowed in front of the Museum of Man in the late 40s- early 60s, I'm glad that was ended.

    hardcover
    hardcover

    Jim: since there was no Plaza before 1915, it would not have been physically possible to park in the Plaza before 1915. It was taken over by the Navy for WWI shortly after the 1915-1916 Expo, there was limited parking in the late teens-early 30s and parking was not allowed during the second Expo and during WWII. Amazingly, parking was even Allowed in front of the Museum of Man in the late 40s- early 60s, I'm glad that was ended.

    Richard Ross
    Richard Ross subscribermember

    hould redirect their fund raising to the park's deferred maintenance before 2015.

    Activist
    Activist

    hould redirect their fund raising to the park's deferred maintenance before 2015.

    Erik Hanson
    Erik Hanson subscriber

    FOAT: no. As you must realize, there was no historic preservation ordinance back when parking was first allowed in the Plaza. Historic preservation laws did not start in the USA before the late '50s-'60s. And not having parking in that area is part of the accepted plan for the Park, so no more hearings, studies, or reports are needed. Anybody disliking bureaucracy should rejoice at that.

    hardcover
    hardcover

    FOAT: no. As you must realize, there was no historic preservation ordinance back when parking was first allowed in the Plaza. Historic preservation laws did not start in the USA before the late '50s-'60s. And not having parking in that area is part of the accepted plan for the Park, so no more hearings, studies, or reports are needed. Anybody disliking bureaucracy should rejoice at that.

    hardcover
    hardcover

    Removing the parking in that area is part an already approved plan, that was created with much public input. So it could be done at any time without more hearings, EIR, and etc.

    Erik Hanson
    Erik Hanson subscriber

    Removing the parking in that area is part an already approved plan, that was created with much public input. So it could be done at any time without more hearings, EIR, and etc.

    Jim Jones
    Jim Jones

    The park is fine now, plenty of space for pedestrians and cars, lets not ruin a good thing in the the name of going backwards.

    Jim Jones
    Jim Jones subscriber

    The park is fine now, plenty of space for pedestrians and cars, lets not ruin a good thing in the the name of going backwards.

    Kevin Swanson
    Kevin Swanson subscribermember

    This issue will continue as long as Dr. Jacobs puts strings and conditions on his support which create the appearance of a "my way or no way" private agenda.

    Syntropic
    Syntropic

    This issue will continue as long as Dr. Jacobs puts strings and conditions on his support which create the appearance of a "my way or no way" private agenda.

    Don Wood
    Don Wood subscriber

    It's very obvious that Judge Tayor is just dying to amend his tentative decision and approve the project, if only someone will give him a viable excuse for ignoring city law. I suspect he is wrong on all three points and that if he changes his tentative decision on Friday to allow the project to go forward, his final decisoin will be overturned on appeal. Let's hope that Dr. Jacobs will now sit down with SOHO and the other stakeholders and come up with a consensus solution that doesn't not involve building a giant new bridge through the heart of the park.

    Don Wood
    Don Wood

    It's very obvious that Judge Tayor is just dying to amend his tentative decision and approve the project, if only someone will give him a viable excuse for ignoring city law. I suspect he is wrong on all three points and that if he changes his tentative decision on Friday to allow the project to go forward, his final decisoin will be overturned on appeal. Let's hope that Dr. Jacobs will now sit down with SOHO and the other stakeholders and come up with a consensus solution that doesn't not involve building a giant new bridge through the heart of the park.

    Paul Girard
    Paul Girard subscribermember

    So, SOHO's plan would also be a violation of the history of the place. Can't have your cake and eat it, too. Why has SOHO lost its focus? What is best for Balboa Park is to have it be a vibrant resource, especially in 2015. Please stop being obstructionist. Let's move forward.

    FriendOfArtsTix
    FriendOfArtsTix

    So, SOHO's plan would also be a violation of the history of the place. Can't have your cake and eat it, too. Why has SOHO lost its focus? What is best for Balboa Park is to have it be a vibrant resource, especially in 2015. Please stop being obstructionist. Let's move forward.

    William Smith
    William Smith subscribermember

    The City Council, could, of course, change the Municipal Code and find a reason why that change should only apply to Balboa Park.

    dmopbuff
    dmopbuff

    The City Council, could, of course, change the Municipal Code and find a reason why that change should only apply to Balboa Park.

    Jim Jones
    Jim Jones subscriber

    The park is fine as is, we don't need to change it for any small group, be it Jacobs or the car haters.

    Jim Jones
    Jim Jones

    The park is fine as is, we don't need to change it for any small group, be it Jacobs or the car haters.

    Judith OBoyle
    Judith OBoyle subscriber

    Love your statement here. The blue bloods should not control everything in this city just because they cry that if they don't get their way, they will take their football (or basketball in Bill Walton's case) and go home. Bob Filner is now free to not pursue the Jacobs Folly any further.

    Judi
    Judi

    Love your statement here. The blue bloods should not control everything in this city just because they cry that if they don't get their way, they will take their football (or basketball in Bill Walton's case) and go home. Bob Filner is now free to not pursue the Jacobs Folly any further.

    Sara_K
    Sara_K subscribermember

    The invested public should not have been pushed unceremoniously out of this planning process, but those same voices need to take the opportunity to come back to the table rather than continue to point fingers. It’s a different Mayor and City Council now, leaders who will hopefully shepherd a compromise solution. That can’t happen smoothly if both sides remain entrenched.

    Sara_K
    Sara_K

    The invested public should not have been pushed unceremoniously out of this planning process, but those same voices need to take the opportunity to come back to the table rather than continue to point fingers. It’s a different Mayor and City Council now, leaders who will hopefully shepherd a compromise solution. That can’t happen smoothly if both sides remain entrenched.

    Erik Hanson
    Erik Hanson subscriber

    Seymour: no what you guess might be the case is not. Changes that were of benefit to the resource, were neutral ( or very minor), or were mitigated could, and often are, allowed. The EIR admitted that the project would cause substantial negative and unmitigated damage to the historic district.

    hardcover
    hardcover

    Seymour: no what you guess might be the case is not. Changes that were of benefit to the resource, were neutral ( or very minor), or were mitigated could, and often are, allowed. The EIR admitted that the project would cause substantial negative and unmitigated damage to the historic district.

    Christopher Morris
    Christopher Morris subscribermember

    The tentative ruling says specifically, “[t]he fact that the Plaza de Panama is now used (and, if SOHO has its way, will continue to be used) as a parking lot perforce establishes that it has a reasonable beneficial use.” So it would seem that by extension, any attempt to eliminate parking on the Plaza de Panama is going to fail to meet the same “no reasonable beneficial use of a property”. If that is correct, this is really a Pyrrhic victory for those that want to eliminate parking on Plaza de Panama (or really make any type of change of use to any part of the park within the “Designated Historical District”).

    SeymourDoyle
    SeymourDoyle

    The tentative ruling says specifically, “[t]he fact that the Plaza de Panama is now used (and, if SOHO has its way, will continue to be used) as a parking lot perforce establishes that it has a reasonable beneficial use.” So it would seem that by extension, any attempt to eliminate parking on the Plaza de Panama is going to fail to meet the same “no reasonable beneficial use of a property”. If that is correct, this is really a Pyrrhic victory for those that want to eliminate parking on Plaza de Panama (or really make any type of change of use to any part of the park within the “Designated Historical District”).

    Erik Bruvold
    Erik Bruvold subscribermember

    Looking forward to Friday's arguments and briefs. It will be interesting to see if the "expansive" definition of "use" holds. If a parking lot meets that standard nearly EVERYTHING would - including using an abandoned historic site as a scaffold for a banner or poster.

    ErikBruvold
    ErikBruvold

    Looking forward to Friday's arguments and briefs. It will be interesting to see if the "expansive" definition of "use" holds. If a parking lot meets that standard nearly EVERYTHING would - including using an abandoned historic site as a scaffold for a banner or poster.

    Carolyn Chase
    Carolyn Chase subscribermember

    Findings are findings - staff always says you can "make them" but often it's just because they want something approved and hope it won't be challenged. What I keep wondering is why are they arguing over parking in the Plaza anyway ... since both Plazas are supposed to return to pedestrian anyway.... Is it really historic having parking there? When was parking put there? Am pretty sure in 1915 the plazas were for people and they also had wicker pedi-cabs that I've seen in pictures.

    Carolyn Chase
    Carolyn Chase

    Findings are findings - staff always says you can "make them" but often it's just because they want something approved and hope it won't be challenged. What I keep wondering is why are they arguing over parking in the Plaza anyway ... since both Plazas are supposed to return to pedestrian anyway.... Is it really historic having parking there? When was parking put there? Am pretty sure in 1915 the plazas were for people and they also had wicker pedi-cabs that I've seen in pictures.

    john eisenhart
    john eisenhart subscriber

    What is city government coming to when the magnanimous blue bloods cannot get their way over the short sighted serfs? Pesky city municipal code. Rats! Where is Jerry (Sanders and Braun) to smooth this out?

    mr architect
    mr architect

    What is city government coming to when the magnanimous blue bloods cannot get their way over the short sighted serfs? Pesky city municipal code. Rats! Where is Jerry (Sanders and Braun) to smooth this out?

    Katherine Lopez
    Katherine Lopez subscriber

    Wonderful news!!!! This is the first step in stopping Jacobs Folly, in reclaiming the park for all the people of San Diego, not selling it out to the favored few.

    Katherine Lopez
    Katherine Lopez

    Wonderful news!!!! This is the first step in stopping Jacobs Folly, in reclaiming the park for all the people of San Diego, not selling it out to the favored few.

    David Cohen
    David Cohen subscriber

    This is an encouraging development which may at the least delay the planned no-later-than-Summer start of construction (and allow Earth Day in the Park after all?), but it isn't over until it's over, and there may be several stages of legal argument yet to come even if the Judge issues a final ruling consistent with this tentative one.

    fryefan
    fryefan

    This is an encouraging development which may at the least delay the planned no-later-than-Summer start of construction (and allow Earth Day in the Park after all?), but it isn't over until it's over, and there may be several stages of legal argument yet to come even if the Judge issues a final ruling consistent with this tentative one.