When San Diego city planner Tait Galloway
settled behind his desk on June 19, 2006, he was surprised to find a message
saying the Federal Aviation Administration wanted to talk about an office tower
going up near Montgomery Field.
The FAA warned in June 2006 that Sunroad
Enterprises' planned 180-foot office tower would be declared a hazard if
it exceeded a height of 160 feet. |
What interest,
he wondered, could the FAA have in a project that was nothing more than a
concrete foundation?
A few minutes later, Karen McDonald, an FAA compliance officer based in Los
Angeles, gave Galloway the bad news: The 180-foot office tower being built by
Sunroad Enterprises would be declared a hazard if it went past 160 feet.
The FAA lays out clear guidelines for developers who are preparing to erect
tall buildings. If a building meets any of four criteria, the developer is
required to notify the agency for a safety review at least 30 days before moving
the first spade of dirt.
The FAA learned of the Sunroad project only after someone wrote an anonymous
letter – and by that time, construction had begun.
According to documents obtained by The San Diego Union-Tribune,
Sunroad's architect, Dan Munch, had decided the filing requirement didn't apply
to the building.
| SECOND OF TWO PARTS
Today: Construction of a contested office building near
Montgomery Field continued despite warnings by the FAA that it was
20 feet too tall, a lawsuit by the city attorney and a countersuit
by the developer. The next move is up to the courts.
Yesterday: Planning for the former General Dynamics site
where the office tower is being built began 10 years ago with a
master plan to redevelop the Kearny Mesa property with two-and
three-story buildings. When the city approved a 12-story building,
no one consulted the FAA, which has declared it a hazard. MORE
Online: To read the first part of this series and to view
documents related to the Sunroad project go to uniontrib.com/more/sunroad
| |
In
a memo to Sunroad's vice president of development, Tom Story, Munch said the
180-foot building was exempt because it fell into the first category on the
list, which exempts buildings less than 200 feet tall.
But one category also applied to Sunroad: It requires that the FAA be
notified if any building of any height is planned within 3½ miles of an airport.
The FAA immediately told Sunroad to file a notice of construction. Sunroad
complied, and the FAA shot back its reply: The building would be designated a
hazard if construction proceeded to the 180-foot level. The agency gave Sunroad
60 days to respond.
While Sunroad officials pondered the warning, cranes hoisted the first beams
into place, and city officials tried to figure out what to do.
As soon as Galloway got the FAA's warning, he e-mailed Kelly Broughton,
deputy director of the city's Development Services Department, which had issued
the permit for the structure. The building would affect flight operations at
Montgomery Field, Galloway told Broughton, and possibly hurt the city's ability
to obtain future FAA grants for airport improvements. In the past five years,
the FAA has contributed $5.3 million for runway lights, helicopter landing pads
and security access gates at Montgomery Field.
| OVERVIEW
Background: The FAA declared a 180-foot office building
under construction near Montgomery Field in Kearny Mesa a hazard
because it exceeds the 160-foot limit for structures near the
airport's bad-weather approach.
What's happening: The developer, Sunroad Enterprises,
continues to work on the building. It says the tower is not a danger
and has been legally permitted by the city.
What's next: The City Attorney's Office has asked a judge
to order the removal of the top two floors of the building. A
countersuit by Sunroad seeks $40 million in damages from the city
related to delays in finishing the building.
| |
“The
FAA wants the building height reduced to 160 feet,” Galloway told Broughton.
“Since this is a significant issue for the FAA, I told Karen McDonald that I or
another staff person at the City would follow up concerning what steps if any
the city would take regarding this project.”
On June 22, Sunroad filed an electronic request with the FAA for a new safety
review. The form asked for the building's height, and in that box Sunroad's
director of construction operations, Craig Bachmann, typed 160 feet.
About the same time, the FAA received a letter from Bachmann saying the
company was doing its own safety study.
“In the meantime, we agree to the 160 foot height specified,” Bachmann wrote.
On June 23, Sunroad's attorney, Barbara Lichman, gave city officials what
appeared to be good news.
“She commented that the applicant will hold the structure to 160 ft pending
the outcome of a new aeronautical study,” Galloway said in a memo to various
Development Services officials and to David Miller, a deputy city attorney.
Everyone assumed the crisis had been averted.
“Sunroad's voluntary cessation of activities appeared to suggest that they
were going to try to resolve the issue with the FAA before continuing
construction,” Miller said in an e-mail.
Defying the FAA
On July 27, however, Sunroad notified the FAA and the city that it was going
ahead with its original plans.
Jim Waring, the city's chief of land use
and economic development, and Sunroad worked on the wording of a
settlement they hoped would persuade the FAA to remove the hazard
designation from Sunroad's office building. |
That
same day, a giant crane raised the first girder to extend the building's height
to 180 feet.
Story, the company's vice president of development, told the Airports
Advisory Committee that company officials didn't ask for the FAA's permission
again because they knew the agency wouldn't approve.
In an interview with the Union-Tribune, Story said Sunroad only had
agreed to stop at 160 feet until it completed its own safety review, which had
shown the building would not be a hazard.
“There were never any assurances that this building would be anything but the
height approved by the city,” Story said.
The FAA disputed Story's interpretation.
The form Sunroad submitted saying the building would be 160 feet superseded
any qualifying statements Sunroad may have made, said FAA spokesman Ian Gregor,
who pointed out that FAA safety evaluations take precedence over evaluations by
private consultants.
| “From where I sit it is very difficult, as a
nonexpert, to know whether the building is a real risk or whether
this is much ado about nothing.”
– JIM WARING, city's chief of land use and economic
development | |
The
FAA was powerless to force Sunroad to lower the building.
Although the agency controls the nation's airspace, it has no authority over
land use. Instead, it relies on state and local governments to support its
decisions.
Developers rarely defy the FAA.
Last year, the agency issued hazard designations in 6,000 projects
nationwide. All but 30 either were abandoned or modified to conform to FAA
standards.
Tom Story, Sunroad Enterprises' vice
president of development, said Sunroad's safety review showed the office
building would not be a hazard. |
Of the 30 that
were appealed, the hazard designation was removed for just three. The other 27
are either pursuing further appeals or modifying their structures to comply with
the agency. Sunroad was the only developer that began construction before
settling its dispute with the FAA.
As more girders were being set in place, Miller, the deputy city attorney,
e-mailed city planner Galloway with a solution: The city could legally order a
halt to the work under a municipal code that defines a public nuisance.
Development Services officials apparently never received the e-mail.
On Aug. 7, Miller e-mailed Galloway again, asking why nobody had responded to
his message. By then, the last of the girders had been set in place and the
shell of the building was finished.
Not giving an inch
When Oct. 25 rolled around and Development Services still hadn't acted,
Deputy City Attorney Carmen Brock sent a memo to Jim Waring, the city's chief of
land use and economic development, and Marcela Escobar-Eck, who heads the
Development Services Department.
“Why is this still being debated?” Brock wanted to know.
Six days later, Development Services issued a stop-work order for the top 20
feet of the building.
By then Caltrans, which has called the building's construction “illegal,” was
threatening to go to court to get the building declared a violation of a state
law that prohibits hazards near airports. Waring still hesitated to commit the
city to the fight.
| BEHIND THE STORY
How The San Diego Union-Tribune reported the story of a 180-foot
office building near Montgomery Field:
To answer the question of how the building was approved by the
city but declared a hazard to pilots flying into the airport in bad
weather, the newspaper relied on records from the San Diego City
Clerk's Office, documents from Superior Court, Federal Aviation
Administration records and e-mails sent by and to the city's
Development Services Department.
When printed, the e-mails – obtained though the California Public
Records Act – amounted to about 5,000 pages and filled eight
three-ring binders. The e-mails provided a picture of how Sunroad
was allowed to construct the building and how the city reacted to
the news that the FAA had labeled the building a hazard.
City records included the 1997 master plan files of the New
Century Center project and video recordings of City Council meetings
where the plan was discussed and approved.
The FAA records obtained under the federal Freedom of Information
Act documented the process that led to the agency declaring the
building a danger to pilots flying into Montgomery Field in bad
weather.
The newspaper conducted more than two dozen interviews with
pilots, land-use experts, city staff members, past and present City
Council members, FAA sources, California Department of
Transportation officials, Sunroad Enterprises representatives and
aviation consultants.
A Union-Tribune photojournalist and reporter documented work on
the building over seven months.
The reporting, writing, photographing, editing and production of
the two-part series spanned about three months.
| |
“My
approach for some time now has been to say to the FAA and Caltrans that if they
believe this building violates their rules and there is a remedy they can
enforce, they should commence and prosecute the action,” Waring said in an
e-mail to Escobar-Eck and the City Attorney's Office in December.
“I want us to remain spectators, not actors in this.”
Waring and Sunroad began working on the wording of a settlement they hoped
would persuade the FAA to remove the hazard designation. It included an offer by
Sunroad to install a sophisticated electronic navigation system that would allow
pilots to fly straight to the runway instead of circling the building. The FAA
balked, saying the idea would take years to implement.
City Attorney Michael Aguirre filed a lawsuit asking the court to force
Sunroad to remove the top two floors to “safeguard and protect the citizens of
the city.” A plane crash into the building would not only cost lives, but could
cost the city millions of dollars in damages, Aguirre said. The city would be
liable, he said, because it knew the building had been declared a hazard yet
allowed it to remain.
Sunroad countered with a $40 million lawsuit against the city, contending
that the city was illegally holding up construction. It sent Waring a warning:
“The city's failure to lift the stop work order may constitute a breach of the
development agreement, thereby exposing the city to significant damages claims
by Sunroad.”
At the very least, Sunroad said, it should be allowed to weatherproof the top
of the building.
On Dec. 21, Escobar-Eck signed an agreement allowing Sunroad to roof the
building and finish work on the elevator service room.
In March, however, Sunroad began putting
up the exterior walls.
Aguirre immediately sent a letter to Sunroad revoking permission to
weatherproof or do any other work on the top of the building.
Escobar-Eck said that even though walls weren't mentioned in the agreement,
it was logical to include them. Aguirre and his staff didn't understand the
intricacies of the construction, she said. If the top floors weren't enclosed,
rain and wind would damage the lower floors, she said.
“I know people are saying you are letting them do more and more, but it's not
as simple as saying stop all of the work,” she told the Union-Tribune.
In January, Development Services issued new internal guidelines: Before any
building permit would be issued near an airport, city staff would have to make
sure the developer had cleared the project with the FAA.
It's up to the courts
Today, the outside of the Sunroad building is almost complete, and the
company is trying to figure out how to get its next two office towers approved.
Waring promises that the city won't issue permits for the buildings until the
current dispute is resolved.
“There will not be a son of Centrum,” he said, referring to the project's
name.
Aguirre, meanwhile, has vowed to continue his crusade to get the top two
floors of the building removed.
“I want the people of San Diego to know what is going on here is wrong,” he
said after one of the recent court hearings.
But Waring and Mayor Jerry Sanders still haven't taken a position on whether
the top floors should come down, saying it's up to the courts.
“From where I sit it is very difficult, as a nonexpert, to know whether the
building is a real risk or whether this is much ado about nothing,” Waring said.
