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No new Mission Beach lifeguard station

Construction stopped following judge's ruling

South Mission Beach lifeguard station
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.

The history

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.

The trial

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.

The ruling

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.)

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South Mission Beach lifeguard station
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.

The history

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.

The trial

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.

The ruling

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.)

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Comments
12

The cracked city employees screw up again. We did not need a lifeguard station this big anyways. Waste of taxpayers money like the one in PB. The Clowns downtown need to start thinking about saving money to fix the damn streets . Just think about the money we are going to pay all this super smart city employees when they retire. More money down the drain.

Dec. 26, 2015

"Diligent manner" are the two magic words here. The city charter requires that sort of effort, and the city bureaucracy is incapable of delivering.

Yes, the spot needs a new tower, but does everything have to be gold plated? No, it doesn't need a lifeguard sub-headquarters on the sand. Just a tower that enables the lifeguards to save lives. Isn't that what lifeguards are supposed to do? Isn't that why the city has them? Or is it to provide jobs for the chosen few?

Dec. 26, 2015

A new lifeguard station FOUR TIMES the size of its predecessor and eons late? It's happening all over town -- La Jolla Shores, La Jolla Cove, Casa Cove. Enough already with these massive mansionized towers. A lobby in the South Mission station? Ridiculous. Good job, Citizens of PB, lawyer Craig Sherman, and thoughtful Judge Bacal!

Dec. 26, 2015

They didn't mention the Jacuzzi that was planned for the lobby! ;-) Plus cable TV with 55" screen, and broadband Internet + WiFi + iPads.

Dec. 27, 2015

Thank you, Judge Bacal. The lifeguards have enough equipment and facilities. The money can be better spent elsewhere in the infrastructure repair budget.

Dec. 27, 2015

More and more, the only way that people can get common sense to prevail is to sue the city. Congratulations to the people!

Dec. 27, 2015

Good call Judge Bacal. What a novel idea to require the City to follow it's own rules. If this had been a private sector job the City would have rained down on the owner and the contractor. At least Judge Bacal has common sense even if the idiots at the City don't.

Dec. 28, 2015

And here is the problem with every solution the city proposes when it gets caught in dereliction of duty: rather than set up procedures to ensure going forward it follows the rules as set up to protect all concerned, they re-write the laws to exempt themselves. The only lesson learned is that they have to be more thorough in denying any legal responsibility for their actions.

Eventually they'll get around to changing the criminal code to say shaking down people on the street isn't robbery so long as a municipal employee is the perp.

Dec. 28, 2015

OK, the city employees are imbeciles and the Judge issued the correct ruling according to the law.

Now where were all of you when the City was applying for this permit? Why didn't you speak up THEN against the project?

Dec. 28, 2015

William50, it sounds like folks who opposed it did what they could. The city sounds like they tried to just do what they wanted...note that the citizen's atty tried to resolve the issue, but no one responded to him.

Dec. 29, 2015

Forget all the illegal aspects of the case for a second. Has anyone been down to the construction site lately??They are building the new lifeguard command center in a FLOOD ZONE!!!! The station is underwater. The city is now wasting even more tax payer money by building a 10 ft high and 300 yard long wall of sand to stop the flooding. I guess that's what happens when you rely on an environmental study from 2005.

Dec. 29, 2015

It's a surfing beach only. During the summer they have temporary stands all along the beach, including one in front of the "swimming" area which is north of the current tower. Curious how many rescues has that tower had over the years? Particularly during the winter when only surfers use the area. Wind n Sea, which attracts many more surfers, does not have lifeguard service during the winter. How many rescues have occurred there from surfers...they take care of themselves. So why do we need a 3500 sq. ft. top of the line tower? Because the lifeguard association, now affiliated with the fire dept., said they need one and the city council does whatever the fire dept. says!!!

Dec. 30, 2015

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