Six days in January

The folks opposing a plan to redevelop the Navy Broadway Complex think they have it this time, the fatal flaw, the silver bullet, the coup de grâce for the proposed five-building project that would sit on Navy land near where Broadway meets San Diego Bay. They’ve been fighting the proposal for years. They believe that putting five tall buildings so close to shore cuts off public access to the bay, that giving prime land to a private developer is morally wrong and that the proposal doesn’t exploit the potential of the property as a place for public interaction. They’ve fought the project on every legal ground they can find, and now they think they have the winner. And it all rests on a six-day gap back in 2003.

To get a grip on the technicality in question, hearken back to 1919, when the city of San Diego gave the Navy the 15 acres of land for a supply depot and pier. The agreement was intended to attract the Navy, with its regular influx of sailors and government money. But the city stipulated the land could only be used for military purposes. In the late-1980s, the Navy decided it wanted to develop the land, so, in 1991, it persuaded a judge to rule that the restriction was vague and, therefore, unenforceable. Then, partly in an effort to forestall an appeal, the Navy agreed with the city to a contract that would allow non-military uses on the property but require the Navy to follow all local land-use laws, and it gave one of the city’s redevelopment arms, the Centre City Development Corporation (CCDC), the right to review any proposal. The Navy had until the end of 2001 to find a developer.

But like the fifth thing on anyone’s to-do list, the Navy never quite managed to get a deal done. At the end of 2001,  the City Council extended the deal for a year. As 2002 drew to a close, the Navy was still without a plan for the site, so the city agreed to extend the agreement for four years, until 2007. In 2005, under pressure from the U.S. Department of Defense to use the land or lose it, the Navy came to terms with hotel developer Doug Manchester.

Manchester would build, at no cost to the government, a new Navy headquarters; in exchange, he would get to build four hotel and office buildings with views of the bay.

But Cory Briggs, attorney for the Navy Broadway Complex Coalition—the critics—thinks he’s found a major flaw in the network of agreements paving the way for Pacific Gateway, Manchester’s project. The first extension to the development agreement expired officially on Jan. 1, 2003. The City Council approved the second extension on Dec. 15, 2002, but city laws aren’t adopted until what’s known as a “second reading” occurs. The legislation extending the agreement to 2007 did not take effect until Jan. 7—the text of the legislation even explicitly stated that it would take affect on that date. Between the end of the first extension and the start of the second is a gap of six days.

CityBeat interviewed both public- and private-practice attorneys to get a sense of whether Briggs has a credible legal argument or simply a see-what-sticks sort of tactic. Opinions varied based on which side of the public-private spectrum the attorneys are sitting. The government-employed attorneys CityBeat interviewed work in other parts of San Diego County and wouldn’t agree to be identified by name, because as one of them said, “I don’t want to get mixed up in someone else’s argument.”

Their positions were pretty consistent.

“Once it expires on its own terms, there’s nothing to extend,” one government attorney said. “If the contract itself says this shall expire, then this contract has expired. An amendment doesn’t revive it.”

Attorneys for private firms with experience in government contracts took the opposite position: A judge will look at the City Council’s intent, consider that the council had voted on the extension before the original contract had expired, and decide six days isn’t enough to matter.

“Let’s just say I wouldn’t take this case on contingency,” said Mark Budwig, a government-contracts expert at the law firm of McKenna Long & Aldridge.

Manchester’s attorney, Steve Strauss, did not return calls for comment on this story, and CCDC chairman Fred Maas said he preferred not to speak on a pending legal issue. City Attorney Mike Aguirre did not return calls for comment, and the attorney working the case for the city would only say that the city would defend the extension.

If a judge agrees with Briggs, the consequences will be far-reaching. Among other things, the agreement actually provided protection for the city. It required any project to include a 1.9-acre park, and according to the first extension, the project had to be consistent with the North Embarcadero Visionary Plan, a guide for the whole Downtown bayfront. Also, the federal government isn’t strictly required to obey local ordinances with its projects.

Without the Development Agreement, the Navy has license to put whatever it wants on that land.

“The Navy can do whatever it wants,” Briggs said. “But the Navy needs police, fire and utilities, and it gets that from the city. It needs water and sewage, it doesn’t have those things.”

For Briggs, getting rid of the 1992 agreement means getting rid of the environmental studies and legal approvals that came with its ratification. Under California law, an environmental study can be conducted on a planned project, even when there’s no developer for it. The Navy and Manchester have relied on those early-1990s studies, and Manchester insists that the 1990 approval from the California Coastal Commission is still binding. Eliminating the 1992 agreement would wipe all that from the slate.

“They have to come back on approvals,” Briggs said. “It would be based on 2008 standards, not 1990. They’ve been trying to shove a 1990 project into a 2008 box.”

In their years-long battle, Briggs and the Coalition have raised new arguments regarding earthquake faults, water supply and potential terrorism. They recently scored their first concrete victory when they convinced a judge to order the Navy to hold a series of hearings to gather public input on the environmental study.

The Coalition has appealed regularly to the City Council to reopen the environmental reviews. With the exception of Councilmembers Toni Atkins and Donna Frye, the council argued that it had no authority to take action, because of the limitations imposed by the agreement. Atkins is hopeful that Judge Ronald Prager will agree with Briggs. She wants to take this opportunity to give the city a chance to review the project. If the agreement has expired, everything changes.

“It becomes a different question,” Atkins said. “Based on what my colleagues have said, they would welcome the opportunity to look at this again. I would hope it gives us a fresh opportunity and perspective to get a second look at this project.”

City Councilmember Kevin Faulconer, whose district includes the Navy Broadway Complex land, said through spokesman John Rivera that he would wait to see what Aguirre had to say before commenting further.

Judge Prager will hold his first hearing on the issue on Jan. 9.     

Something to say? Got a news tip?
Write to ericw@sdcitybeat.com and editor@sdcitybeat.com.