A revised court ruling has cleared the way for construction of a long-delayed new lifeguard tower for South Mission Beach, much to the chagrin of opponents whose lawsuit contended the project was outdated and needed to start over.
In a complete reversal of the Lower Superior Court, the Fourth Appellate District Court of Appeal recently ruled that the lifeguard tower’s site development permit was valid and had not expired, as project opponents had claimed. The appellate court also ruled that the plaintiff’s suit was filed too late.
The city claims the new, three-story tower replacing a small, 40-year-old wooden structure will provide better views of the water and accommodate additional lifeguards and equipment. “This is an important victory because it means better lifeguard coverage on one of our busiest beaches and safer swimming conditions for our residents and visitors,” City Attorney Mara Elliott said. “Just as important, it reaffirms earlier rulings that unequivocally support the city’s right to move forward with public projects as financing and approvals allow.”
Project opponents were less sanguine about the judicial turnabout.
“I think the appellate judge was just totally misled by the fabricated story the city presented, that this (opposition) was just a couple of disgruntled homeowners complaining about their views,” said Ken Giavara, spokesman for tower opponents, who say that’s exactly the way the case went down.
Giavara said the appellate court missed the real point of the case, upheld by the lower court, which was
that the lifeguard tower’s site development permit was invalid because it had expired.
“The judge’s decision should have been based on whether the permit was void – or good,” Giavara said. “The appellate judge never even addressed that issue. This wasn’t about the views. This was about an illegal procedure and permitting. We (citizens) were not given our legal right to have an input.”
Superior Court Judge Katherine Bacal previously sided with Giavara and a neighborhood group in Mission Beach known as Citizens For Beach Rights (CFBR). That group had challenged a new, bigger lifeguard tower on South Mission Beach first proposed in 2002. Bacal’s decision in December 2015 kept the lifeguard tower from being constructed in 2016.
Following a Nov. 18, 2015 bench trial, Bacal sided with CFBR agreeing that a site development permit for the South Mission Beach Lifeguard Station “is void and, thus, no construction can occur under its SDP.”
CFBR has contended the new proposed lifeguard tower is the wrong size, in the wrong place because of potential flooding, and has been propelled through the city’s project-approval process without proper permitting.
As currently proposed, a three-story, 3,800-square-foot tower with a first-aid station, vehicle bay, administrative offices and two observation decks would replace a 900-square-foot wooden structure built in the 1970s.
When originally proposed in 2002, the lifeguard tower project was budgeted to cost $1.1 million. That price tag has mushroomed in 15 years to about $5 million due to delays and issues such as erosion control.
Giavara noted the Mission Beach lifeguard tower case has changed city policy.
“City permits used to be valid for a 36-month period,” he said. “Now they’re valid for a 10-year period.”
The only vote the lifeguard tower was ever put to was in 2005 when the project was denied by the Mission Beach Town Council, said Giavara, who claims the city was also remiss in not properly noticing homeowners near the project about developments with it, as required by law.
“I think the city should be held to the same standards private citizens are held to,” said Giavara predicting, with added legal costs, that the cost of the project “will be $9 million by the time we’re done with this.”
Giavara said the opponents’ only recourse now would be to appeal the case to the state Supreme Court.
“We were never against the lifeguards,” Giavara said. “Our group wants the lifeguards to get the best structure for that beach.”