Suit filed over drive-thru

Posted: August 16th, 2013 | Communities, From the Cover, News, North Park, Top Story | 1 Comment

North Park community ‘pro-neighborhood’ plan says Jack In The Box location no longer zoned for drive-up window

By Dave Schwab | SDUN Reporter

North Park residents have filed a lawsuit seeking to bar a drive-thru window from being included in the Jack In The Box restaurant construction, located near the intersection of 30th, Upas and Dale streets. The argument goes back years, with local residents insisting the fast-food restaurant’s drive-thru is in the middle of a residential neighborhood where it no longer belongs.

Some residents are arguing that the North Park Jack In The Box, which has been at 2959 Upas St. since 1961, forfeited its nonconforming right to have a drive-thru there by doing a nearly complete tear down, rather than a remodel, of its restaurant.

North Park Planning Committee member Roger Lewis said he filed the suit on behalf of the community to block Jack In The Box’s drive-thru in San Diego Superior Court on Monday, Aug. 12.

This photo shows construction on the drive-thru area, with the residential Dale Street just beyond. (Courtesy

This photo shows construction on the drive-thru area, with the residential Dale Street just beyond. (Courtesy

Lewis said the suit is not “anti-Jack In The Box” but rather pro-neighborhood and pro-community planning.

“It’s about the ability to transition a neighborhood according to the community plan and what the zoning calls for,” said Lewis about the rationale for the lawsuit. Lewis noted that in 2000, the community and the City agreed to transition the area around North Park Jack In The Box into a neighborhood commercial zone, which precludes auto-intensive uses like drive-thrus.

“There used to be a filling station there and an ice manufacturing plant, and, along with the restaurant drive-thru, they were no longer appropriate for the way the neighborhood has grown up,” Lewis said. “With residential streets on both sides, auto-intensive uses are no longer in the future for that area.”

Omar Passons, another North Park community planner agreed.

“This is a business fairness issue,” Passons said. “The zoning for that area was changed in 2000, no longer allowing a drive-thru. Either all businesses need to abide by these laws as they exist, or they don’t. That’s really what’s at issue.”

Passons, who serves on the North Park Community Planning Group and North Park Community Association, said Jack In The Box could have preserved its previously nonconforming right to have a drive-thru by remodeling rather than rebuilding their North Park venue. He said in opting for a rebuild, they voided that grandfathered right.

“They absolutely had that opportunity [to keep the drive-thru] if they had not demolished the building and rebuilt it bigger,” he said.

North Park residents initially hoped they would get help from the City in blocking the drive-thru, but ultimately did not. A stop-work order was proposed by Mayor Bob Filner, but later rescinded on the advice of the City Attorney because of advanced construction on the project. The City Attorney deemed it would be legally “vulnerable” in any potential lawsuit brought by the restaurant chain.

“We advised the Mayor’s office in writing as to the legal strengths and weaknesses of stopping the Jack In The Box project at this point,” said Michael Giorgino, interim communications director for the City Attorney. “Based upon that, the Mayor’s office decided not to issue a stop-work notice.”

Council President Todd Gloria, whose district includes the North Park location, weighed in on the controversy in his most recent newsletter.

“Like many North Park residents, I am offended by the current Jack In The Box project,” he wrote. “The project is not only inconsistent with the Greater North Park Community Plan, but also fails to take advantage of a once-in-a-lifetime opportunity to implement good planning principles at a prime location.”

Gloria also said he would not support Jack In The Box’s proposal unless they satisfied the community’s concerns. He said the Planning Commission recommended that the project be denied as well.

“Instead of heeding the suggestions of the community and the Planning Commission, Jack In The Box chose to resubmit their project through the City’s Development Services Department as a ‘remodel’ under Section 12.7.1 of the Land Development Code, even though the project, to all appearances, is a complete rebuild,” Gloria said. “This allowed the project to be permitted without any review or approval by the City Council.”

The Land Development Code must be changed so that “this scenario cannot be repeated,” Gloria said in the newsletter, and the Council President has requested research into “potential changes to the law” to help prevent this from occurring in the future.

“I expect staff to solicit input from the Community Planners Committee and other stakeholders and report back to the City Council’s Land Use and Housing Committee this fall with suggested changes,” he said.

Efforts through the Mayor and City Attorney have not resulted in work being stopped, and Lewis said the community deserves better.

“That drive-thru wasn’t there originally,” he said. “At some point it was [added] and that has created so many traffic problems at that T-intesection, with traffic stacking up and the loud squawk box at night with the entrance off a main residential street, which you couldn’t do today.”

Lewis said the drive-thru “has always been a nightmare, always been a problem with pedestrians unable to cross anywhere nearby,” and a public protest opposing the construction was held in front of the Jack In The Box on Aug. 5.

“We in North Park have always said Jack In The Box could have the type of project that fit into the neighborhood,” Lewis said. “But to allow a drive-thru in the community for another 40 years is just not acceptable.”

Representatives from Jack In The Box could not be reached for comment.

Organizers against the drive-thru have created a Facebook page for updates on the construction and suit. Visit it at

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  1. […] Controversy continues to surround the drive thru window of the North Park Jack in the Box […]

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