Mission Beach lifeguard station saga continues

San Diego Superior Court judge Katherine Bacal is expected to officially place a hold on construction of a new lifeguard tower near the jetty in South Mission Beach.

In a September 18 tentative ruling, expected to be made final this week, Bacal granted a preliminary injunction request from Citizens for Beach Rights barring the city from resuming construction on a $4.6 million, three-story, 3125-square-foot lifeguard station with observation tower, first-aid room, a lobby, enclosed parking and storage for safety vehicles, and restrooms.

The central issue in the lawsuit is whether the city should be allowed to violate building-code requirements by building on expired permits. Permits for a new lifeguard tower were issued in September 2006 after years of planning and several contentious hearings over the size and scope of the tower. The Mission Beach Planning Group had initially opposed a larger tower that they felt hindered beach access. In response, the city toned down the plans and the two sides reached an agreement. A site development permit was issued. The permit required that construction begin within three years of issuance.

The permit reads: "Construction, 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. Any such Extension of Time must meet all the [San Diego Municipal Code] requirements and applicable guidelines in effect at the time the extension is considered by the appropriate decision maker."

The economic downturn crushed that timeline. The project was put on hold. It remained on hold until 2011, two years after the site development permit expired, when the city approached the California Costal Commission for a coastal development permit. Years passed and in March 2015 the coastal commission granted a permit on an even larger structure than the initial city permit had allowed. Construction crews appeared shortly after to place marks for the footings and concrete pad.

On September 3, 2015, the Reader reported that a lawsuit had been filed by the Citizens for Beach Rights over the project. On that date, Judge Bacal granted a temporary restraining order to postpone construction until an injunction request could be heard.

In her ruling, Bacal said Citizens for Beach Rights had a "reasonable likelihood in prevailing on the merits" of their lawsuit.

"The [site development permit] clearly states construction, grading or demolition must commence within 36 months. That did not happen. There is no evidence that the City requested an Extension of Time."

The city argued that because the coastal commission had to sign off on plans, the 36-month start-date requirement was placed on hold. Judge Bacal didn't agree.

"Even if the policy applied, it would not change the result. The policy addresses situations where action by another agency must be completed before other 'permit conditions' can be addressed. The city does not point to any permit conditions that cannot be addressed until a [coastal development permit] is obtained. Instead, the city essentially argues that a condition of the [site development permit] is that the city must obtain a [coastal development permit] and it cannot comply with that condition until it obtains a [coastal development permit]. This is circular reasoning. The 'action to be taken' after a permit is obtained must be something other than obtaining the [coastal development permit] itself.

Added Bacal, "Minimal work has been done on the project. It has been left in the same condition for several months due to the summer moratorium. The project is fenced off and can remain that way. The City has not demonstrated that it would be more economical to go forward with the construction and then demolish the lifeguard station in the event plaintiff prevails than to maintain the status quo while this action is pending."

According to the ruling, the general contractor, EC Constructors, they will lose $1403 each day that the project is delayed, and that is without factoring in subcontractor costs. Because of the loss, Bacal ordered, tentatively, that the Citizens for Beach Access must pay a $250,000 bond to proceed with the lawsuit.