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Part of the Birtcher-Pacific Building—which sat vacant at the Hotel Capistrano site—is seen being demolished on Feb. 14. The approved hotel project is currently mired in litigation. Photo: Allison Jarrell
Part of the Birtcher-Pacific Building—which sat vacant at the Hotel Capistrano site—is seen being demolished on Feb. 14. The approved hotel project is currently mired in litigation. Photo: Allison Jarrell

By Allison Jarrell

A trial has been delayed, again, for a lawsuit from a hotel developer looking to overturn the city’s approval of a competing hotel in town.

Local developer Bill Griffith filed a lawsuit in the California Superior Court on Oct. 4, 2016 over the legality of the city’s September 2016 approval of the Hotel Capistrano by Kimpton. Griffith’s suit claims the Hotel Capistrano “violates many provisions of the city’s General Plan, other plans and planning policies established by the city, and the city’s municipal code,” making it an “illegal” development that will “have negative impacts on the adjacent, historic Judge Egan House.”

The 102-room, 4-star Kimpton boutique hotel is set to be constructed between the Egan House and the Esslinger Building, which are both owned by Griffith. Griffith recently renovated the Egan House, which is now home to Ellie’s Table.

Griffith dropped his plans for his own Inn at the Mission hotel project around the same time the Hotel Capistrano was approved last year, and since then, he has revived his plans to build the previously permitted Plaza Banderas at the site adjacent to the Mission. The design of that hotel project is currently going through the city’s review process.

A trial for Griffith’s suit was initially scheduled for Aug. 11, and a ruling was delayed by Orange County Superior Court Judge Kim Dunning at that time. The trial was rescheduled to Sept. 22, and then delayed to Oct. 6.

On Oct. 6, Judge Dunning issued a stay during the hearing, which temporarily halts the proceeding. Dunning’s main reason for delaying a trial (both on Aug. 11 and on Oct. 6) was an earlier lawsuit filed by a group known as Save Our Historic Town Center that’s currently in the Court of Appeals. The group alleged that a 2014 proposed project—the Urban Village hotel and villas—was inconsistent with the city’s General Plan. That project was intended for the same piece of land that the Kimpton is set to occupy.

Dunning said the lawsuit over the Kimpton’s approval hinges on whether the Historic Town Center Master Plan was properly incorporated into the city’s General Plan amendments—the same issue at the center of the Save Our Historic Town Center suit before the Court of Appeals.

“That appears to be kind of an important issue in this court, too,” Dunning said. “How can this court possibly rule, when we expect the Court of Appeals to make a decision? It doesn’t do anybody any good.”

Dunning acknowledged that there are differences between the Urban Village project (which included townhomes) and the Kimpton hotel, which is a smaller development. She said the key issues in Kimpton’s case revolve around the Forster Street extension and its setbacks.

“If the Court of Appeals says that the Historic Town Center Master Plan is not incorporated into the General Plan amendments, then I think that’s not so good for the petitioner’s case, obviously,” Dunning said. “But I need to know that. In other words, I’m not free—this court is not free—to make that decision as long as the issue is in the Court of Appeals. Because remember, we’re talking about the same piece of property here.”

After Dunning issued the stay, she recommended that the parties take a writ to the Court of Appeals and ask for immediate action.

“If the Court of Appeal advises this court that it is okay for this court to go ahead and answer that question in this case, I’ll be happy to,” Dunning said. “If the Court of Appeal says no, then I don’t think there’s anything I can do. It only flows one way between the trial court and the Court of Appeal, and we’re at the bottom end.

“I appreciate and I share your frustration about this,” Dunning continued. “I can’t comment on the other case … but it is presenting a huge impediment in this court’s proceeding.”

Rather than scheduling another trial, all parties agreed to a next step of participating in an off-the-record conference call regarding progress with the case on Friday, Nov. 17 at 9 a.m.

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