South Mission Beach lifeguard station

Despite the City of San Diego's best efforts, the $250,000 in bond money that a group of Mission Beach residents raised to challenge the construction of a new, state-of-the-art lifeguard station will be returned.

On March 8, judges from the Fourth District Appellate Court rejected the City of San Diego's request to keep the bond in place while the court mulls over the trial court's decision. If the city's wish had been granted, the handful of residents who contributed money for the effort would have likely been forced to wait over a year to retrieve the cash.

The appellate court will still consider the city's appeal on the merits, however, without keeping the $250,000 in bond money.

The decision ends what has been a busy two months for San Diego's deputy city attorneys working the case.

In December, trial-court judge Katherine Bacal issued a permanent injunction, banning construction of the proposed 3990-square-foot, $4.6-million lifeguard station in South Mission Beach after evidence showed that the city had failed to begin construction within the three years that the permit had required; the city waited more than six years after the permit had expired to begin work.

But for residents of South Mission Beach, the issue dates back much further. In 2004, city staff first presented their plans to the local planning group for a new lifeguard tower equipped with a garage and lobby, among other amenities.

The planning group opposed the idea, stating that it was too large for the site and obstructed views. The city reduced the size and in 2006 obtained the necessary permits, save for coastal development permits. But a rising structural deficit prevented the city from allocating funds for the project.

Despite the permit having expired in 2009, it wasn't until 2011 that the city petitioned the coastal commission for a permit for a slightly modified tower. The commission granted their request. Four years passed, however, until crews appeared onsite in March 2015 to begin the groundwork.

Mission Beach residents were caught off-guard. They looked into the permits and found they had expired. The leader of the pack, Ken Giavara, hired attorney Craig Sherman to try and work with the city. Sherman's request to sit down with the city attorney was denied. A lawsuit ensued.

In September 2015, Judge Bacal ordered the residents to post a $250,000 bond in the case in order to prevent the city from incurring construction delays if the case was proven to be frivolous. Giavara scrambled to obtain the funds but was eventually successful.

That same month Bacal issued a preliminary injunction against the city, forbidding any additional construction work on the station until the full trial could be held, which had been scheduled for November. In October, weeks before the full trial, the city council directed the city attorney to file an appeal on the temporary stoppage as well as authorized the attorney to file appeals on any “future adverse rulings.”

Then, on December 24, after hearing the case, Bacal ruled in favor of the residents. The city filed an appeal and at the same time requested that Bacal consider holding on to the bond money until the appeal was heard. On February 25, Bacal denied the city's request, but the city was not ready to give up.

Deputy city attorney Jana Will asked the court for an extension on returning the bond money until a separate petition could be filed with the court of appeals, one that would overturn Bacal's decision on returning the bond.

On March 8, the appellate court dismissed their request.

Now, after countless hours of legal work, as well as the money for attorney fees for which the city will be on the hook, the residents will receive the bond money.

Meanwhile, as the city attorney continues to devise a defense of why they are allowed to build on expired permits, city-council members are expected to approve a charter amendment that will make permits for capital improvement projects such as the Mission Beach lifeguard tower exempt from expiring.

Sherman, the attorney who represented Giavara and the Citizens for Beach Rights, believes the city's hard line on fighting the case was unreasonable from the beginning.

"That one percent chance in trying to overturn 100 years of judicial precedence was a ridiculous waste of time and resources, likely resulting in tens of thousands of dollars in legal fees," Sherman said shortly after receiving word of the appellate court's decision.

"The city attorney and its principal deputy appear to be on yet another egotistical quest 'not to lose' face amidst an unwise city action and in defense of poor legal advice. The city attorney is not advising its client sensibly. Instead, they are wasting public resources and digging themselves a bigger hole rather than admitting it goofed up and violated the law."

Giavara feels this whole thing could have been avoided if the city had realized its mistake and started the permit process over again.

"We tried to get the city to settle this with no cost to the taxpayers, but it was the city attorney and the city council who wanted to fight this with taxpayers' money. It never made sense why the city council would approve using taxpayer money to fight this case in the face of the evidence against it. Believe me, I made every attempt to show council the evidence. They wouldn't listen."

The appeal will make its way through the appellate court. The residents will soon be allowed to recover the $250,000 bond.

Updated: 3/11, 8:05 a.m.)