By Joe Tash
Time is of the essence for opponents of a mixed-use project at the entrance to the Whispering Palms community, after a judge’s ruling cleared the way for the project to move forward.
Not only do opponents have to meet an April 2 deadline for filing an appeal, they would need a judge to issue an injunction to stop construction of the project, which is already under way.
“We’re going to have to move pretty quick,” said David Nugent, a member of the Whispering Palms Community Council, a residents’ group that has filed lawsuits in an effort to stop the Palma de la Reina project.
Superior Court Judge Earl H. Maas III ruled on Jan. 31 that the project could move forward, and bulldozers began grading the site last week. The project had been on hold for about two years as the community council’s legal challenges – and the county approval process – took their course.
The community council has long opposed the project, contending that it will make existing traffic congestion along Via de la Valle and surrounding roads even worse, and that the project is too large for the 4.3-acre parcel at the corner of Via de la Valle and Cancha de Golf.
Both the San Dieguito Community Planning Group and the Rancho Santa Fe Association also oppose the project.
Developer Richard Cavanaugh, himself a resident of Whispering Palms, and his company, Newport Pacific, Inc., plan to build 54 apartments, 19,500 square feet of office space and 9,500 square feet of retail at the entrance to the community, the last large undeveloped parcel in Whispering Palms, which contains about 600 houses and condominiums.
An earlier plan by Cavanaugh to build an assisted living facility on the site was also opposed by residents and was later withdrawn.
The community council planned to meet on Tuesday, Feb. 19, to discuss its options now that construction is underway.
In 2011, based on a lawsuit filed by the community council, the judge ordered the developer to complete a full environmental impact report for the project. The county of San Diego certified the EIR in 2012, and the San Dieguito Planning Group appealed the decision to the Board of Supervisors. However, because the county determined the appeal was not filed in a timely manner, the appeal was rejected.
Judge Maas then ruled that because the opponents had not gone through the county appeals process, their lawsuit challenging the EIR was rejected.
Residents of Whispering Palms, who have already battled development plans for the property for nearly two decades and spent tens of thousands of dollars on legal fees, would have to contribute more money to appeal Maas’ decision.
Nugent, an attorney, said he will advise his council colleagues to press forward with the appeal.
“It would be sad if it all ended over a technicality. If we lose on the merits, if we have our day in court…. then I’d say OK, at least we’ve had our day. But to kick us out of court at this particular time, it just doesn’t seem right,” said Nugent.
Jeff Carmel, the community council’s acting president, agreed with Nugent that an appeal should be filed.
The issue affects everyone in the region because of the traffic the project will generate, said Carmel.
The environmental impact report contains numerous errors, said Carmel, but because the case was thrown out based on the timing of the appeal, opponents never got to make their case about the EIR’s flaws.
“This has been a long engagement, we’ve spent thousands of hours, thousands of dollars, to try to protect the community and to try to get something better for the empty lot. And not being able to challenge it based on the merits but to … have the case dismissed on a technicality, is no way to go down,” Carmel said.
Wayne Brechtel, Cavanaugh’s attorney, said in an interview last week he doesn’t think opponents would be successful in appealing Maas’ decision or obtaining an injunction. And both he and Cavanaugh said the project will be good for Whispering Palms.
“At the end of the day, we’re still confident when this project is built it will be an asset to the community and no one will remember what the dispute was about,” Brechtel said.