Flower Hill upgrade construction continues despite dispute between public agencies

By Joe Tash


Construction on a controversial expansion and renovation project at the Flower Hill Promenade mall will continue for now, despite a stop-work order issued by the California Coastal Commission which carries potential fines of $15,000 per day.

At issue is a territorial dispute between the commission, which regulates development up and down the California coast, and the city of San Diego. Each entity contends it has the authority to approve the $25 million project at the popular shopping center on Via De La Valle east of Interstate 5.

In April, the San Diego City Council unanimously approved the project, and construction began in July. However, the Coastal Commission contends that it has jurisdiction over the land where the mall sits, and must be the agency to issue a coastal development permit. On Friday, the commission posted a stop-work order at the construction site.

Attorney Robin Madaffer, who represents the mall’s owner, Protea Properties, said the company believes the city has the legal authority to issue the permit, which it has done.

“The work is going on. We’re not going to stop doing what we’re doing in reliance on the coastal permit unless and until we’re told to by a judge,” Madaffer said Monday.

“We’re kind of stuck in the middle between two public agencies claiming jurisdiction,” Madaffer said.

Under state law, the Coastal Commission is charged with planning and regulating development in the state’s coastal zone, in partnership with coastal cities and counties.

The Flower Hill Promenade is included in the coastal zone because it is located within the watershed of the San Dieguito River Valley, said Deborah Lee, manager of the Coastal Commission’s San Diego district.

The Coastal Commission retains the authority to issue coastal development permits within the coastal zone until it certifies a local coastal program for a specific area. At that point, the commission delegates permit authority to the city or county where the local coastal program has been certified.

The commission believes the property where Flower Hill Promenade sits is not part of the city’s certified local coastal program, said Lee. Therefore, “we never delegated coastal development permit authority to the city” for the parcel, she said.

Both the mall’s owner and the city disagree.

“The coastal commission does not have direct permit jurisdiction over the project,” the city wrote to the commission last year.

“Our position has not changed,” on the jurisdiction issue, said Kelly Broughton, the city’s development services director, on Tuesday.

And a spokeswoman for Councilwoman Sherri Lightner, whose council District 1 includes the mall, said her boss specifically asked city officials about the jurisdictional issue during the council hearing in April.

“Sherri asked during the hearing if it was in our jurisdiction and was told by the city attorney and mayor’s office in no uncertain terms that it was in our jurisdiction and our purview,” said Lightner spokeswoman Jennifer Davies.

“Under the law, the boundaries of the City and Coastal Commission jurisdictions are shown on Map No. C-730-1. This Map has been relied upon for over 20 years to determine the locations of the City and Coastal Commission jurisdictions. According to the City’s Development Services Department, the Map shows the Flower Hill property within the City’s jurisdictional area,” wrote a spokeswoman for City Attorney Jan Goldsmith in an email.

Madaffer, attorney for the mall’s owner, said she and her colleagues have seen the maps and the certified local coastal program, and are convinced the city has authority to issue the permit.

Lee said the stop-work order was necessary because her agency has advised both the city and the property owner that it contends the mall falls within the Coastal Commission’s jurisdiction.

“We advised them we do not believe they have a valid coastal development permit and they should stop work,” said Lee. “We think we’ve given them due notice of our concerns.”

The commission is “pursuing legal options” and talking to city officials in an effort to resolve the issue, Lee said.

Civil penalties could include fines of $15,000 per day from the date the stop-work order was issued, and additional fines for starting work without the required permit, Lee said.

The Coastal Commission’s action is not the only legal hurdle faced by the mall’s owner. In May, a group called Citizens Against Flower Hill’s Excessive Expansion filed a lawsuit seeking to stop the project.

According to Madaffer, a judge declined to issue a temporary restraining order to halt construction, and a request for a permanent injunction will be heard in San Diego Superior Court on Friday.

Among the issues raised in the lawsuit is the question of jurisdiction, said Madaffer. Rather than taking its own action, she said, the Coastal Commission should instead have joined the lawsuit to settle the question of which agency has the right to issue the development permit.

The project includes demolition of the UltraStar Cinema, which has already closed, and construction of a new building to house a Whole Foods Market, new retail and office space and a four-story parking garage. The center would expand from its current 112,000 square feet to 173,000

square feet.

The project also would include a facelift for the center’s existing buildings.

The owner-developer faces a tight deadline, because under its agreement with Whole Foods, the new building must be completed by June of 2012, Madaffer said.

After an approval process that took seven years, said Madaffer, her client wants to move forward with the project.

“We were issued a coastal permit that was approved unanimously by the city council of San Diego,” she said. “We are relying on that permit. Until we’re told by a judge that’s invalid, there’s no reason for us to stop.”