Gated San Diego neighborhood declared ineligible for city’s utility undergrounding

SAN DIEGO —  Alvarado Estates, an upscale area near San Diego State, is struggling this fall with an unexpected consequence of being one of the city’s first gated communities.

The neighborhood has long wanted its telephone poles, power lines and other utilities undergrounded as part of a multimillion-dollar city program. But City Atty. Mara Elliott says the neighborhood is ineligible because of the gates.

“Using city funds to underground utilities in Alvarado Estates would be an improper gift of public funds, as this would not be for the general good of all inhabitants of the city because the streets and sidewalks of this community are closed to the general public,” Elliott wrote in an opinion issued this fall.

Elliott’s opinion also says undergrounding utilities would probably boost property values in Alvarado Estates, a benefit only to that neighborhood’s homeowners, not the public.

The Alvarado Estates Community Assn. says undergrounding utilities there would benefit the public by reducing the chances of a fire in the 125-home neighborhood, which they say is open to joggers and pedestrians to pass through.

The association, which would have to spend more than $1 million to pay for the undergrounding itself, has voted to file a lawsuit if the city doesn’t change its stance.

The dispute has revived many of the old arguments over gated communities when they first became popular in the 1980s and ‘90s.

Some critics say such neighborhoods are divisive, damage community cohesiveness and create fortress-like elitist enclaves.

Supporters say such neighborhoods aren’t seceding from the city but simply want to ensure they have low crime rates and safe streets are free from excessive traffic.

The decision by Alvarado Estates to add gates was prompted by concerns in the late 1990s about the traffic that would be generated by a new arena, now called Viejas Arena, being planned for the San Diego State campus.

Marshall Lewis, a neighborhood resident and an attorney for the homeowners association, says the decision to add gates was not about keeping the public out, just vehicles.

He said many joggers pass through the neighborhood, which is about a mile west of campus, and that some of the university’s sports teams do running drills there because the area is protected from heavy traffic.

“The problem with the city’s position is that this isn’t private property,” he said by phone. “There is a gate, but it’s open to people.”

But Elliott’s opinion says 1997 city documents approving the gates stipulate that Alvarado Estates is responsible for maintaining the streets, sidewalks, streetlights and storm drains because they are now private.

“Because Alvarado Estates is a private community that is necessarily made up of private sidewalks and streets, the improved aesthetics and integrity of the utilities are not enjoyed by the public at large because the public at large is prohibited from using these private rights-of-way,” the opinion says.

Lewis says that implies the neighborhood allows access to pedestrians by choice, but he contends allowing access to pedestrians was a requirement of the 1997 approval.

“It’s possible if we can prove that, then the whole issue would go away,” he said, adding that he’s been trying to locate documents that show such a requirement.

Being included in the city’s program is the neighborhood’s only hope of having its utilities undergrounded, Lewis said.

“There’s no way we would be able to pay for it,” he said. “It’s too expensive.”

The city pays for such projects, which are handled neighborhood by neighborhood, with a surcharge paid by all San Diego Gas & Electric customers for the express purpose of undergrounding utilities.

The city announced early this year it would accelerate undergrounding by shrinking the size of projects to boost efficiency and by creating more accurate schedules so neighborhoods know when to expect such work.

An area called Block 70, which includes Alvarado Estates, has finally climbed near the top of a long city waiting list, prompting the new questions about the gated neighborhood’s eligibility.

When the dispute first emerged earlier this year, City Council President Georgette Gómez asked Elliott to provide some legal guidance, a request that prompted the opinion this fall.

Gómez, whose district includes Alvarado Estates, declined to comment.

While Elliott’s opinion could be characterized as a precedent that makes all gated communities ineligible for undergrounding, Lewis said that probably won’t matter much.

Nearly all gated communities are built with the utilities already undergrounded. That’s primarily because they’ve been built since the 1970s, when overhead utilities began to be phased out.

San Diego has several other gated neighborhoods, mostly north of state Highway 52 in communities such as La Jolla, Rancho Bernardo and Black Mountain Ranch. But each was built with undergrounded utilities.

“It’s a strange circumstance to put a gate in after the fact,” said Lewis, stressing that pending construction of the arena was an unusual motivation.

Most of the homes in Alvarado Estates were built about 50 years before the gates were added.

Leslie Wolf Branscomb, a spokeswoman for Elliott ,said this week that if another neighborhood in similar circumstances is discovered, it would be analyzed to determine if undergrounding utilities in the community would be a prohibited gift of public funds.

“Each gated community would be analyzed individually,” she said.

The criteria most likely to matter, she said, would be the extent the streets have become private, how much the public has been excluded from the gated community, and whether the undergrounding of utilities would benefit people outside of the community.

She said other factors could include which easements in the community remain public and what maintenance responsibilities the community agreed to take on as part of adding gates.

Until 1996, San Diego had a policy essentially prohibiting gates. The policy said gates were not allowed unless there was some overriding or compelling reason.

But pressure from developers and neighborhoods prompted the City Council to reverse course that year and adopt a new policy stating that gates should be allowed unless there is a compelling reason not to.

Garrick writes for the San Diego Union-Tribune.