South Mission Beach lifeguard station
On December 24, superior-court judge Katherine Bacal ruled that the City of San Diego violated the city's own site development permit while going about the construction of a state-of-the-art lifeguard tower in South Mission Beach.
The city had waited eight and a half years after permits were obtained to demolish the current 897-square-foot lifeguard station to make room for a new structure. The three-story, 3125-square-foot building with observation tower was to have a first-aid room, a lobby, enclosed parking and storage for safety vehicles, and restrooms.
A group of residents calling themselves Citizens for Beach Rights filed an emergency writ of mandate after witnessing construction crews prepping the site for construction in March 2015, six years after the city's building permit expired.
City staff first introduced plans to replace the old tower in 2004. The Mission Beach Planning Group, however, rejected staff's proposal to build a 3500-square-foot building. The city then returned with a smaller, abridged version. Staff obtained permits for the building in 2006. It was around that time that funding ran short. Decreasing revenues mixed with increasing budget demands and a growing infrastructure backlog saddled the city. In September 2009 the permit expired before the city could begin work. However, the lapsed permits didn't stop staff from petitioning the California Coastal Commission for a Coastal Development Permit in 2011. Again work was delayed. In 2014, city staff resurrected the project; this time, the plans called for a slightly larger tower.
As reported by the Reader, shortly after crews appeared on South Mission Beach in March 2015 to begin work, a group of residents hired attorney Craig Sherman. Sherman first contacted the city attorney's office to try and resolve the issue. He did not receive a response.
He then filed a petition to force the city to obtain a new permit. In September, Judge Bacal ordered the city to stop construction until a trial could be held. At the same time, Bacal required Citizens for Beach Rights to post a $250,000 bond in case the city prevailed to pay for any costs associated with ceasing construction.
Bacal heard oral arguments in early December. Sherman, the attorney for the residents, read the site development permit, which requires that "[c]onstruction, grading or demolition must commence and be pursued in a diligent manner within thirty-six months after the effective date of final approval by the City, following all appeals. Failure to utilize the permit within thirty-six months will automatically void the permit unless an Extension of Time has been granted."
Attorneys for the city argued that this was all standard operating procedure. They argued that the clock doesn't start ticking when busy trying to obtain other project-related permits, such as the permit from the Coastal Commission. To prove their case, city attorneys interviewed former development services employees and directors.
"If a project was going through the [Capital Improvements Program] process, [the Development Services department] considered that utilization of the permit because the City cannot pursue other regulatory approvals without the proper funding in place and the complexity of going through the [process] is an obstacle that private developers do not encounter," said former director Kelly Broughton in a November 10 declaration.
Continued Broughton, "[Development Services] considered the fact that the city was actively going through the [Capital Improvements Program] process for its funding as evidence that it has not abandoned the project and was, in fact, utilizing its permit. At no time did [Development Services] consider the project abandoned nor did [Development Services] consider the Permit void. With respect to the Project at issue, the fact that the city was pursuing a Coastal Development Permit simultaneously while undergoing the [Capital Improvements Program] process was sufficient evidence of permit utilization and consistent with how [Development Services] interpreted the permit utilization statute."
Judge Bacal took the arguments under consideration.
In the meantime
As city attorneys formulated their defense, the Development Services Department was busy trying to amend the building code to allow them to build with expired permits.
City staff was already in the process of amending the building code to make it more current. Yet, one of the proposed amendments essentially allows the city to ignore expiration dates on capital improvement projects.
The following passage is from a November 17, 2015, document obtained by the Reader:
"￼￼Capital improvement program projects are exempt from the permit requirement in Section 126.0108.
"...Amend the code to exempt capital improvement program projects from the permit utilization requirement. Capital improvement program projects are defined as tangible City projects with a life expectancy greater than one year that is counted as a fixed asset with values for capitalization purposes (for assessment of prosperity and financing purposes). Issues after permit approval that typically delay or add uncertainty to processing times for [Capital Improvement Program] projects include the need to secure other agency approvals, the need to acquire or condemn property, the need to comply with contracting and bidding processes, and the need to secure funding (local, state, and federal)."
And while the city works on changing the code to prevent further legal issues from arising, it had no impact in the case over the Mission Beach lifeguard tower.
In her ruling, Bacal stated that the city was well aware of the deadline and at no point did staff try and obtain an extension.
"Although the [Site Development Permit] states that construction, grading, or demolition must commence and be pursued within 36-months — which did not occur — the city argued that it had a 'good faith intent' to use the [Site Development Permit], that it had a 'practice and policy' of interpreting a utilization statute in the Municipal Code to protect permits, that it believed it was utilizing the [Site Development Permit] by seeking funding and a necessary Coastal Commission permit, that the city's interpretation should be given deference, and, thus, that the [Site Development Permit] is not void."
Continued Bacal, "Even if the city demonstrated that it 'utilized' the [Site Development Permit] pursuant to the Municipal Code (which the court does not conclude), the evidence was conclusive that the [Site Development Permit] was not utilized under its own terms…. [A]t issue here, the specific mandatory means of utilization was through construction, grading, or demolition, commenced or pursued in a diligent manner. Alternatively, if this could not be accomplished, the city could have sought an extension.
"...For all these reasons the court finds that the [Site Development Permit] is void."
The city council has not yet discussed if it plans to appeal the ruling. It is also too early to know how much the error will cost the city, in loss of construction costs as well as in attorney fees.
(corrected 12/27, 3:10 p.m.)