neil dymott frank mcfall 6 & trexler aplc 5 neil i ...1 nayer brown llp john nadolenco (sbn...

1 NAYER BROWN LLPJOHN NADOLENCO (SBN 181128)jnadolenco@mayerbrown corn

CHRISTOPHER MURPHY (SBN 120048)crnurphy@rnayerbrown. corn

350 South Grand Avenue, 25th FloorLos Angeles, CA 90071-1503Telephone: (213) 229-9500Facsimile: (213) 625-0248

NEIL DYMOTT FRANK MCFALL& TREXLER APLCMICHAEL I. [email protected]

1020 2nd Avenue, Suite 2500San Diego, CA 92 101-4959Telephone: (619) 238-1712Facsimile: (619) 238-1562

Attorneys for PlaintiffBLACKWATER LODGE AND TRAININGCENTER, INC., dba BLACKWATERWORLDWIDE

BLACKWATER LODGE AND TRAININGCENTER, INC., a Delaware corporation dbaBlackwater Worldwide,

V.

Plaintiff,

KELLY BROUGHTON, in his capacity asdirector of the Developrnent ServicesDepartment of the City of San Diego;AFSANEH AHMADI, in her capacity as ChiefBuilding Official of the City of San Diego;THE DEVELOPMENT SERVICESDEPARTMENT OF THE CITY OF SANDIEGO; THE CITY OF SAN DIEGO, amunicipal entity; and DOES 1-20, inclusive,

Defendants.

Case No. 08 Cv 0926 H (WMC)

PLAINTIFF’S REQUEST FORJUDICIAL r%OTICE IN SUPPORT OFOPPOSiTION TO DEFENDANTS’MOTION TO DISMISS

August 11, 200810:00 AM.Courtroom Of The HonorableMarilyn L. Huff

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

Date:Time:Place:

28785900

1’Iaintitt’s Request tor Judicial Notice — O CV 0926 H (WMC)

Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 of 77

1 REOUEST FOR JUDICIAL NOTICE

2 Plaintiff Blackwater Lodge and Training Center, Inc. dba Blaekwater Worldwide

3 (“Blackwater”) requests the Court to take judicial notice of the attached documents:

4 A: Business Tax Application filed with the City of San Diego by Blackwater;

5 B: General Application filed with the City of San Diego on February 8, 2008, Project

6 No. 150059;

7 C: Inspection Record, completed by the City of San Diego, Project No. 150059.

8 D: City of San Diego Audit Report dated June 5, 2008; and

9 E: City of San Diego, Land Development Manual, Volume I, Chapter 1, Project

10 Submittal Requirements, Section 1, Guide to Project Submittal Process, January 2008.

11 These documents have all been previously submitted to the Court.

12 Exhibit A is a copy of Exhibit A to the Declaration of Julio DeGuzman filed by

13 Defendants on June 9, 2008 (Doe. 2 1-6).

14 Exhibit B is a copy of part of Exhibit B to the Declaration of Julio DeGuzman filed by

15 Defendants on June 9, 2008 (Doc. 21-6).

16 Exhibit C is a copy of Exhibit U to the Declaration of Brian Bonfiglio filed by Plaintiff

17 on May 26, 2008 (Doc. 4-2).

18 Exhibit D is a copy of Exhibit I to the Supplemental Declaration of Brian Bonfiglio filed

19 byPlaintiffonJune 12, 2008 (Doe. 26-3).

20 Exhibit E is a copy of Exhibit 3 to the Supplemental Declaration of Brian Bonfiglio filed

21 by Plaintiff on June 12, 2008 (Doe. 26-3).

22 Judicial notice of these documents is appropriate because they are all public records

23 authored in whole in part by the City of San Diego, and, in the case of Exs. A, B & C, filed with

24 and maintained as business records by the City of San Diego. See Lee v. City ofLos Angeles,

25 250 F.3d 668, 689 (9t1 Cir. 2001) (noting that judicial notice may be taken of public records);

26 United States v. Ritchie, 342 F.3d 903, 909 (9t1 Cir. 2003) (courts may take judicial notice of

27 “records and reports of administrative bodies”).

28 i//

28785900 Plaintiff’s Request for Judicial Notice — 08 CV 0926 H (WMC)


1 Plaintiff therefore respectfully requests that the Court take judicial notice of the attached

2 documents.

3 Dated: July 28, 2008

A MAYER BROWN LLPJOHN NADOLENCO

5CHRISTOPHER MURPHY

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7 By: s/John NadolencoJohn Nadolenco

8 Attorneys for Plaintiff BLACKWATER LODGEAND TRAINING CENTER, INC., dba

9 BLACKWATER WORLDWIDE

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28785900 Plaintiffs Request for Judicial Notice — 08 CV 0926 H (WMC)


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\ ausrNascv-OO926-H-WMC Document 21-6PC BOX i22e9

BAN OiBoD CA B22:2eg(51( Br BD rn. MFwww aflo.Qofl

‘Isiness Tax AppflcaUon

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619 ) 840-1446 ( 252 ) 435-6388

sressAOOrXE-k4af A0OosO e. JOAoerBxonpMy.com)

?68S Siempre Viva briaribon©blackwaterusa,corn

Pcil Qificce Ccix NcimCer Fxerxorei Mei Ccix (PMB)

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Filed of 84

Partnership

F: Soie Proprietorship E LImited Partnership SCcrporiori

F Husband & Wife Sote (Lmited Liabitty Company F Trust

Corporation

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stness Actv)ty Types:

VVroiesaie (42)cutture (mg (21)

es (22)

cslruciion (23)

mulacturrng (31-33)

Retait (44-45)

Transportation and Warehousing (48-49)

(niormairon Services (51)

Finance anc Insurance (52)

Ra Estate/Re a/Leasing (53;

Pro1ession&/Scienlic11achnmcaJ (54)

Management Servmce (55)Administrative and Supporl (56)

oCucalOna Servces (61)

TA(LE DESCRPDN IS NDATORY

ire PMmek iSriecs AirVty in Dxie

:ackwater wil conuct security trainin9 for the United States Navy

Heair DareSocat AsSIstaRCe (62;

Arts/n(erramnmntJRecreation (71)

Accommodation/Foodservices (72)

Direr Services (81)

Pu(ic Administration (92)

Pkrnarkj x ry Cxcix

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Oulkore Sverrxes Aclrvty r Dee

water has contracted with the United States Navy to conduct a course

Sxcondry Acuiy Ocicie

ailed “Ship Reactionary Force Ba$lc” )SR-B)61


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Case 3:08-cv-00926-H-WMC Document 21-6 Filed 06/09/2008 Page 52 of 84

OyofSanDiegc s-’’y / V General1222 First Ave., MS3San Diego, CA 92101-4154 ( N .— Application(519) sooo

1. Approval Type: Check epprcprrare box for type c/approval needed. Separate eiecrncal, plumbing and/cr mechanical permits arerequired for pro)ects other than single-family residences or duplexes • Ele rical D Plumb ngiMechsnical • Sign• Construction ermitsNtructure Grading Public Rht-o1-Way; LI Subdivision • C 0ernolltian/emovaI• Development Permlts-’D Neichborhood Use C Coastal C Neighborhood Development C Site Development C Planned DevelopmentC Conditional Use C Variance • C Vesting Tentative Map • LI Tentative Map C Map Waiver • C Other

________________________

2. ?rojectddress: incltde Buiidirjg or Suite No. Ppject Title: ,. Project No, P Cn’y UCniy- -L€ /Legal Description: (Lot, Block, Subdivision Name & Map Number OR Parcel and Parcel Map Number ssessors Parcel No.

Existing Use: Proposed Use: j Total Floor Area’

Ak4- !r-

3. an9ineer/ArchlteotfDesigner Name . Fax Number. 51_4S L’ -z)t’- ‘t\t

Address City State Zip Does TelephoneL--L 6 (I. ,(-2A 1

4. Propey Owner/Lessee Tenant Name Please checK one Owner Lssee or Tenant Fax Number

- C--c’Aedress I City State Zip Dooe Telepnone

Ic I . Z-ErS. Contractor Name (n i requ red Icr dev)opmeflt permits) Fax Number

A - . i’.Address -i / City t is Zip Code Teiepnone

clDrfr cJr 3c - c 21l1 E4-State License No. / / License Class 4ty Bu”siness Tax No,

B 2Dl5iLicensed Contctor D I I: I hereby affirref that I am licensed under provtsions of Chapter 9 (commencing with Section 7000) at Division

in full lorce an: an

‘ Date

_________________

6. o Cornpensation3èolaration: l hereby affirm under penalty of perjury one of the following declarations:

C a. I have end will mainfairt certificate ci consent to cell-insure fr woricero npensation as provided by Section 3700 f the Labor Cobs, for the performance ci the woric for width ticspermit of fasued,

I ttevc arid will mafnrsin wcncern’ ozrnperisseor, as riswred by Section 3700 tithe Liter Coca, for the p rrnaxe tithe sore icr sdccth this parrtrff a tcouec. lilly iorracti cocoonsatrOn rcsurance canter anti policy number are:

insurance Company C rt Policy No. 73 Expiration Date / / Cc?rTlids isectiori riced not be corripiered I the pemill e icr one hunorad dollars 15 00) or ieesl.

C c icertilyihat fnthepsnfcrmanceof thewo ore thispemiltisissueti. IshallnciertyenypersoninerrymennerscaslobeconesubyetttotheWorl<ereCompensation Laws ci California. and poree thai i 51100 scone stie to Ins cowers compensation provisions ci Section 3700 of the LeDor Coos, I snail forthwith comely wth those

Signctura QAZ} Date_________Warning: Failure toes re omçtpensstion cxceratll unlawful, end srint. sub sot ar enciovaric ertmrcrai certotfues eric cat cost otto erie tuwred thotisenO dotare l3i0tO30,e, addition to the cost l comeen stiortj,yrnaoeo as prcvldecr/r Sector 370601 Ins Labor Cob, interest ant attorneys eec.

‘7. C)wner—Buflder Declaration: hereby affirm that I tS exempt tram the Contractors License aw for Ins loilowirip reason 19cc, 7031.5, Susinmas and ProfessionsCode: Arty city or county whitri requires a permit to oortstrcitt, alter improve, oternolish, or raoair any strueturS, prior to its essence, also reQuires the applicant tar suchpermt to tile a, signed statement that ha a licensed pursuant to the provisions 01 the Contractors License Law IChapter 9. commencing wftrr Section 7006. of Division3 ot iris Susrnens and Profess:ons Ocoel inst he is exempt therefrom. anc the bails for ins aulecee Sxarnptror.. Any violation o Sector, 7031.5 on any opO:cant roa OerTntt subueots Iris icopticant to e clvii penalty of not more en tiv f’iuniOreO 0 ‘ -C I, as owner of the pracerty, or me emoloyses with wasas as their aol ensaith’r. wit Ocr th work anti the srructmrc of not interrueti or offered icr sale iSe. 7044, ausiness ant Prolessioris

Code: The Dontractcro License tiaw cues nor appiy to an oe5ie property woe outdo or uncroves thereon, eric writ uses tote wore nirnsei or tnrousn lou own ernolovees, provost Oiei soonimproverrierrtu are not irttarieed or offered icr sale, ul.wsr, see bujitbunt or improvement is lct within ore year ol conrtoletron. the owner-buIlder will navy the brjrsen of ptovrngtflaf he did riotbulb or cnrorove for the ourpose of

C as owner of the prooerty, am axciosisely conmrastinp wtth licensed contractorS to cont’trud Ills rojsct ISec. 7044, Suciness arid Profasisions Code: The Contractors License Law soon nor applyto an owner tt properly wno bulldiràr Improves thereon, and contracts for aunt pmolecra with conrraclorls) licensed oicrscianr to the Contractors License Lawl.

C I em exempt unoe:Sestfbi( ,B.&P.C.for this reason,

Srgnaturr’

___________________________________________________________

Date

____________________________________

S. Construction Lending Agency: I hersoy affirm that there is a construction lending agency tar the performance of the work tar wnich tars permit is issued (Sec. 3097, Civ. 4C - If the name of the bending agency ts not known, the word unknown should be written here,

Lenders Name:‘ ,J ; Lenderfs Address:

__________________________________________

CONTINUED ON PEVEPSE SD

Printed on recycled paper. Visit our web silo at www.ssrrdie.ooav/deveboomen1nervcctrs,Loan reauest, h,iit irrllrerrnriflnrn in evelleble in altwrnntivvi fnrmete tar neerrinne with riinmhilifiwe

DS-3032 (09-OS)


21-6Use ge 53S4.. I

. Frnanciatly Responsie F-any (oorp for OroJatts recuiring a osoosir accourr

Name/Firm Name

/

City State Zip Code /Aeiecnone Fax No,

naricially Pesponsible Party Olaratiort: understanc tnat City epenses may exeed tne estimatec aovance oeposit and when recuested

by the City of San Diego, wl provide addltion& funds to maintain a posttive alance, Fbrther, the sale or drier dposftrcn of trie oronerty does not

r&iave the individual or Compsnycrporation of their obhgation to maintain a positivalance in me trust account, unless the City of San Diego approves a Change of Fesponstoie F’ty arid transfer of tunes, Shouid the account go into osficit, all Chv worl may stop untli me reQuested Covancedeposit is received, //

This is a continuation of existing projeof / Please use the existing deposit account

__________________

//1

Print Name: / This:

_____________________________________________

//

S:orrature

____________________________________________________

Date:

_______________________________________________

\ /7

The name of the individual and the person who sins this’declaration must be the same. it a corooretion is listed, a corporate officer must sign

the declaration (Presioent. Vice—President Chairman, Ssoreiy o Treasurer)

10. Public Notice Certification: (To ca conipiereo wflert £ ubic notice pacxape :s recurred.)I hereby certify that the names and adaresses submitted with the ublie Notice package are current and accurate for the project site and for all of

the properties located within 3CC feet of the exterior bunbaries of tti’Lproperty described in this apolicatior,, and that the Assessor’s Parcel Number and ownership information were obtained frcrntne latest adopted San Diego County Tax Fioll, eric arty update tneratc, maintained in Inc officeof the San Diego County Tax Assessor err /‘ 20_. rnderstand that if It is found thai any of this information is incorrect, the

applicant will have to flie a new and corrected Jist ci impacted property owners and occupants with the City and any public nearing conoucted for

the project application may be declared null,and void by the decision-mang bony or by the courts anti the application may have to pa raffled andthe processing tee/deposit paid again /‘

/Signature / Title

_________________________________________Date ___________________

1 1. pplicant Information: Property Owner Authorzati Agent for Property Owner. Other Entitled Person

Name: “1 ‘. Fax Number

Aceress City State Zip Code Thieptione. ql7—\ f’-

&ppiicartt’s Signature: I certity that I nave reatitgs eppliothion and state that the above inrormation a correct, and that I am the property owner.

authorized agent cit the proarty owner, or Qi arson having a legal right, interest, or entitlement to the use of me property that is the subject of

this application (Municipal Code Sction 02)/f unoerstand that the applicant is responsible for knowing anti cornprving with the g’erriing

-iolicie anti regulations aiisabé to tforcooss daveonient or permtL The City is not labia to arw barr,acea or ices resutpric from me actualir alleged faliura to inform thil-’cf any spiicabraAws or regulations, irroludiri; before or during final inspections. City approve. 01 a permit

application, :ndludtng all r&l p1 d’irnent5, riot of aporoval to violate any applicable policy or regulation, nor does it constitute

avraiveroy the City toadh vailabieto enforce anti. o::act vi/the applicable policies and regulations.

— —“

—“ mportarit 1nstruCtkrms ft AppliCant

California Stare law redires every permit applicant to provide specific Inrormation and certain eeclaratioris recarding the proposed work.The folio wing instructions describe kno may sign the required osctaratiarzs,

Licensed Contractor such ProvisionS, they must forthwith comply. In the event they do

This statement may ce signed by the contractor or a corporate of- not oornoiy wttn the Workers’ Compensation Law, the oerrnti snail os

ftcer of a constructron company including President, V:oe President, deemed revoked,Secretary, Treasurer, Trustee. Chairman ot the Seerd or ResoorisibieManaoin Emolovee IRME). An acant for the contractor may sign DwnerSutldsr Deolarotiori

onty wnen a letter of eutnortzatior frorr me contractor authorizing rita statement may be signed ov the owner, iassee, tenant, arcnflezt,

the aoent to sion is presented at permit issuance. The person sieriing engineer, ircensed pest control operator, or an authorized ageni o err.’-

- of these., in every case, a separate Dvrner-Builoer \/erihcatior iorrn‘- s/-re a IDS. 3D.2 m..st - ac o a onad 0’ -‘a owner

Workers’ Compensation DeclarationThis statement may be signed by the contractor, owner, renant lesseeor an authorized agent of one of these. A valid Certificate of Worxers’Compensation Insurance must oe presented at permit issuance. Thecertificate:

a. Must show the name of the insured.

b. Must list the policy number, effective data, anti expiration catsof the insurance oolicv.

It item 6.c. is checked, only the contractor or owner may sign thisarea. NOT N AaSNT. This section is signed only when the ownerc’ contractor nil: have no employees or the cb, It, after signing theexemption front me Workers’ Comoer,sation provisions of the Labor

Code, the contractor or owner-bulider should oacome subreci to


THE CFIY OF SAN DIEGODevelopment SeMces

1222 rsf Avenue, San Dieoo CA 521 0-4154—OO5

nt information

: I 53Q59 Title: Southwest Law Modular Bldg lllt Ill!It lU llI 1l lU Il, r: Vesa, Jarna (61S)68759Z5 jveoasandieooov

royal Information

proval Nbr: 5 29104 Type: Buildtng Permit Status: Completed I1IIJI1!!ll1llhI11IJJU1IJ1JI11iI1IWllissued: 03/1 5/2005 5:05 am Issued By: Ferrara, Troy Issued To: Raven Devefoornent roup, Raven Development Crc

Oompleted: 05/05/2008 649 am Completed By: Aguirre, Fernando Expiration Date: 03/15/2009 5:00 pm Owner Occupied: C

ension Qty: 0 Extended By: Cancel Reason: Overridden:D

Scope: Building permit to add modular training unit inside of extg Precancel Status:

warehouse for extg Southwest Law Enforcement facility, Land Dot Type:

CT:100.07 Recorded Map Nc:

Recorded Date:

Location

Address Description Assessor Parcel

7685 S!2MPRE VIVA RD 7685 S1EMPRE VIVA RD 557-O535QO

eauof Census (BC) Codes

BC DodeAdd/Alt Tenant Improvements

Type Units

Fee TypeAmount

Valuatcon CBC 138,192.60

c Worksheet

Fee Quantity t Category

‘arehouseNonRated 5,062.00 Spuare Feet issuance Fees

as-Building Plan Check 990.02 Dollars Plan Chetk Fees

Fire Service Hourly Fee 500 Hours issuance Fees

Hazardous Materials Fee 1.00 Each issuance Fees

PC WarehouseNonRated 5,062.00 Square Feet Plan Check Fees

Permit Issuance/with Plans 1.00 Each Issuance Fees

Seismic Fee (Bldg Permit) 138 i52.60 jaluauon CBC issuance Fees

State Fee (Bidg Permit) 135,1 52.60 Valuatcon -CBC Issuance Fees

Storm Water Pin Chck < 1 Acre 1.00 Each Plan Check Fees

p2k v 02 01.61Sandra Stowers 587592i

provalritea uotuiiuu i-’age b4 01 /D8 1:44 pm

Pace 1 of 1


proval Epv-00926-H-WMC Doc 21-6 Filed 06/09/2008 Page 55 of 841D9 42 pmTHE CY OF SAN D(E60

Deve(rnent Seress-Oil 1222 Ftrst Avenue. San Doo CA 921O1154

9ct Information‘br: 150059 TWe: Southwest Law Modutar Bldg I Jill! Ill! till? II 1111111111111 iii

: Vea, Jams (619) 6875935 jvegassndiego gov

Information7695 SIEMPRE VIVA RD Street Address: 7695 SIEMPRE VIVA RD Thomas Brothers: i25iF4067-706-3300 Paroel Owner: SAFOHILD iNVESTMENTS L L O\

oval informationravel Nbr’ 5 291 04 Tyoe :Buhcing Perm:t Status: Compieted 111111 11111 lIll Ill! Ill!! ll Ill Ill!

lssue:03/i 912008 Expiration Date: 03/1 5/2009

e;uiId’ng Dermft to add modular training unit inside of extg warehouse for exig Southwest Law Enforcement acJlity. CT:100,07

p2k v 020151 Sanora Siawes 687-5921


- ise j u-cv-uuo--ivviviupection Han

Development Services1222 FirslAvenue. San Dieco, CA 8210-41o4A-021

lect information‘r Title SouthwestLaw Modua Bog II[I II J Hill uii; ilit lP n

: Vesa, Jams (619)687-5835 jveasaneao.aov

information

: 7885 SIEMPRE V1VA RD Street Address: 7685 SiEMPRE VIVA RD Thomas Brothers:

: 667-080-3500 Parcel Owner: SAFOHILD INVESTMENTS L L C\

rovaT informationApproval Nbr 5 29104 Approval Status: Compieted

Approval Type: Building Perm Owner occupied: 0 Overriden: 0

issue: 03/1 9/08 909 am By Ferra-s Troy Will Expire: 03/1 5/09 506 pm

Cancel Reason: Extension Quantity: 0

recancel Status: Closed: 5/5/08 69 am By: Aguirre, Fernando

Scope: Buildins peit to add modular training unit inside of extg warehouse for extg Southwest Law Enforcement facility.07:1 0007

ection Group: 633518 inspection Tier I

ectiort Group: 633519 inspection Tier 2

g Iy.o Status thotor b.eV! Performed End Result

Subtype

.0715 Structural-Frame Completed lemnandez, CarIes 03/21/08 8:06 am 03/211DB 3:25 pm Fail

All Rough Framing [Fail) into only

671 S Structural Suspended Ceiling Completed Hernandez, Carlos 04/11/08 8:06 am 04/11/OS 11:36 am Fall

Suspended Ceiling (Fail) into only. heavy duct system. dsl3a

1188 Fire Final (2) Completed Pereira, Sergio 03/28/08 8:00 am 04/07/06 4:00 pm Pass

All Fire Final [Pass]

Exiting [Pass)

Structural Frome Comleted Hemanda:, Garlos 03/2./D8 8:06 am 63/24/08 227 pm F(i

All Rough Framing [Fail) info only

4153 Structural- Frame Completed Aguirre, Fernando 04/30/08 8:00 am 04/30106 5:03 pm Pass

All Rough Framing [Pass] ni2bfnl

ection Group: 633520 Inspection Tier 3

Ie Status nsoecor Scnaoud Performed End Result

pa

6713 Structural - Final/3) Comnoieteo Acuirre, Fernanoc 04’30f08 8:06 am 04/30/08 4:00 pm Pass

Final (Pass]

Ia Nbr Created By Issue Descriotion Cleared By Cleared Date Note

68236 Doudar, Ziad All expansion anchors into Hernandez, Carios 4/25/08 8.24 am Special inspection mitigationexisting concrete. p;an approved cy Zad Doudar,

with special inspection repohfrom Mario Battaglia SD 350for visual inspections andtesting of anchor oolts.

55237 Doudar, Ziad All steel facrication and Hernandez. CarIes 4/25/06 8.24 arc Special inspection migationweldinc shall oe done in an plan approved oy Z:ad Doucar,aoproved shop. with special inspection reoori

from Mario Battagla SD 350for vsual tnsp5ct:ns andtesting Qf ancnor bolts.

68235 Doudar Ziad During all field weiding, Hernar.dez. Carios 425)08 8.24 am Spec:al inspection mitigationplan apprcved by Ziad Doubar,with special inspection reporifrom Mario Batiaglia SD # 350for vsuai inspections andtesting of anchor Dolts,

68239 Doudar, Ziad During all structural steel Doudar, Ziad 3/17/08 16:53 an A307 bolts do not requirebolting. special inspection,

- __J omIOB 1:57 pm

Page 1 of 2

p2k v 02.01 .61 Sandra Stowers 687-5921


eotio 3:08-cv-00926-H-WMC Docu2 1-6P THE C OF SAN DIEGO

Development Serv:ces

1222 First Avenue, San Diego, CA E2rD1154

p2kv 02.01.61Sandra Slowers 6875921

Filed 06/09/2008 Page 57 of ‘08 197

Page 2 of 2

-O21ection Group: 633520 Inspection Tier 3

iI Information

Jprovai Nbr: 5 39694ApproVal Status Completed

Approval Type: Mechanical Permit Owner 00 pied: c Overriden: Z

Issue: 04/07/08 12:10 pn By Khalifah, janeth Will Expire: 04/02/08 5:00 pm

Cancel Reason:Extension Quantity: 0

recancel Status:Closed: 5/6/08 7:34 am By: Hernandez, Frank

Scope:

ection Group: 647435 inspection Tier I

ection Group: 647436 inspection Tier 2

pStatus inspector Scheduled Performed End jt

Subti’oeNote

t2314 Macnanloal - FinaI2) Completed Hernanbea, Frank 04/08/08 8:00 am 04/08/08 3:54 pm Fall

Mechanical Final fFaii)

t5903 Mechanio& Finai/2 Cancelled Hernanez, Frank 04/30/08 8:00 am

D100 Mechanical - Final(2) Completed Hernandez, Frank 05)01/08 8:00 am 05/01/08 3:57 pm Pass

Mechanical Final [Pass calculations for duet suooo aporoved by structural inspector

ection Group: 647437 Inspection Tier 3


irniuxi


OF APPROVAL OF WORK ON THIS i’RO,IECT IS

THE RESPONSII11ILIT’ OF THE CONTRACTOR DR OWNCR.

APPROVED PLANS MUST BE ON ION FOR ILL INPECrIONS.

OSO/FIRE INSPECTORS ONLITO SIGN TIll S CARD.

EACI4 STAGE OF WORK SIIALL tIE LEFr EXPOSED FOIl

INSPECTION

TVPEI3FINSPECTION DATE INSPECTOR

I Scic-er Servico

2 I14uckwaior Valvc

3 Sunituty Plumbing Under Bu)ldsrg

4 Winor Swvicc

S WuIer Piping Under fluilding

(.3 6 Growlding ElctIro& Syslem

7 Eiccirlcu) Oulnide or Building

II Ekeirkul Under ISuilding

9 Gun pin/Prcssurc

IS Stunts Water Syslem

ANCHORS. INSERTS, & REINI?ORC€MEN TO HE ACLUI1XrELV

SeCURED IN PLACE At TIME OF P0(05(7 tTIOS INSPECTION.

12 Pilin5ls)l CuituitnOl? Sic.

IS Foecinglul

4 Forrndulirrrr \V24l(sl

IS Grade lmnrrrn)sl

Ill SiabIn)

ys 17 Mnstrnt’y Pre.grmiI LIE I LiE 2_

2 iS Wall Esnsnnge Sysicmnl

(9 PublIc impms’emrtnhrs- Form Sri

a 20 Puol Shell Bund(ngJSlnnI

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SEE REVERSE SIDE FOR IMPORTA,”JT UUFORM’47J2N


UlfflIllX3


City of San Diego

AUDIT REPORT

A UDIT OF PERMITS ISSUED FOR THE

BLA CKWATER FA ULITY

June 5, 2008

Internal Audit

Eduardo Luna, CIA, CGFM, Internal Auditor

Ei


This Page Left Intentionally Blank

1-


June 5, 2008

THE CITY OF SAN DIEGO

I S I

Jay M. Goldstone, Chief Operating Officer

City of San Diego202 C StreetSanDiego,CA92101

Enclosed is our report regarding our audit of the permits granted for the Blackwater Worldwide

facility located at 7685 Siempre Viva Road. Management’s response to our audit report can be

found as Attachment X. Internal Audit staff members that participated in the preparation of this

report are Kyle Elser, Judy Zellers, and Tricia Mendenhall.

We would like to thank Development Services’ and City Treasurers’ staf1 as well as Blackwater

officials tbr their assistance and cooperation during this audit. All of their valuable time and

efforts spent on providing us information is greatly appreciated.

Respectfully submitted,

Eduardo LunaInternal Auditor

cc: Honorable Mayor Jerry Sanders

Honorable City Councilmembers

Michael Aguirre, City Attorney

William Anderson, Deputy Chief Operating Officer, Land Use & Economic Development

Kelly Broughton, Development Services Director

INTERNAL AUDIT

600 8 STREET, SUITE 1440 a SAN DIEGO, CA 92101

PHONE 619 5335214, FAX 619 533-5210

5-


This Page Left Intentionally Blank

(2


INTRODUCTION

On May 5, 2008, Mayor Jerry Sanders directed the Chief Operating Officer to conduct an

investigation into the permits issued to Blackwater USA for a facility in Otay Mesa. On May 6,

2008, the Chief Operating Officer requested the Internal Auditor to conduct an audit of the

permits granted related to Blackwater’s operations at 7685 Siempre Viva Road.

The audit objectives were to answer the following questions:

• Did Blackwater misrepresent its identity or intended use of the facility located at 7685

Siempre Viva Road, Otay Mesa Development District?

• Did Development Services’ staff properly issue permits in compliance with codes and

regulations for the l3lackwater facility?

• Is the designation of Vocational / Trade School appropriate for the Otay Mesa site?

A detailed Audit Objectives, Scope and Methodology section is presented in Attachment I. A

detailed timeline of events in presented in Attachment II.

We conducted this performance audit in accordance with generally accepted government

auditing standards. Those standards require that we plan and perform the audit to obtain

sufficient, appropriate evidence to provide a reasonable basis for our findings and conclusions

based on our audit objectives. We believe that the evidence obtained provides a reasonable basis

for our findings and conclusions based on our audit objectives.


BACKGROUND

Blackwater Worldwide (Blackwater)

Blackwater, formerly Blackwater USA, is a security services corporation that provides a

multitude of security-related services, such as law enforcement training to government entities.

Blackwater has plans to operate a training center in the City of San Diego to train U.S. Navy

personnel. Blackwater obtained a contract with the U.S. Navy to provide security training to

Navy personnel, including the fundamentals of watch standing and the use of weapons.

According to a l3lackwater official, Blackwater has provided this type of training to

approximately 2,500 Navy personnel in the San Diego area. A Blackwater official indicated that

in the past, this training was provided at American Shooting Center, located at 5590 Ruffin

Road, San Diego. However, according to the Blackwater official, a more realistic training site

was needed to address the U.S. Navy training needs.

In August 2007, E&J Holdings, a sister entity to Blackwater, leased a 61,599 square foot

warehouse located at 7685 Siempre Viva Road in the Otay Mesa Development District of San

Diego (zip code 95154). Safchi!d Investments LLC owns the warehouse, which originally was

completed in 2003 and occupied for a period by Hometex, Inc., a towel manufacturing company.

The map that follows shows the location of the facility.

2


Location of 7685 Siempre Viva Road San Dieo CA

Source: Google.

In order to provide security training at the warehouse, Blackwater needed to modify the facility,

including adding interior walls, installing air conditioning and exhaust systems, installing an

indoor firing range, and constructing a shipboard simulator. A Blackwater official stated that

they planned to begin training at this site in June 2008.

3

9


Development Services Department

The Development Services Department (DSD) is a Division of City Planning and Development,

reporting to the Chief Operating Officer of the City. DSD provides review, permit issuance,

inspection, and code enforcement services for building and development projects throughout the

City of San Diego.

In the City of San Diego, the Land Development Code establishes the City’s planning, zoning,

sub-division, and building regulations as documented in Chapters 11 to 15 of the Municipal

Code. The City of San Diego has adopted several codes, among them the Uniform Building,

Mechanical and Plumbing, and National Electrical codes. In addition, there are federal, state and

local laws that govern construction, such as those covering energy conservation. Reviewing and

issuing building permits is a complex process requiring multiple disciplines to review the

Municipal Code, zoning use, and plans prior to permit approval and issuance. Contractors can

begin work on projects once a permit for that work has been issued. Several permits may be

required for one project. Once the contractor completes the work, the City inspects the project

for compliance with the approved plans. In the prior three fiscal years, Development Services

staff has issued approximately 29,400 permits.

4


Did Blackwater Misrepresent Their Identity or Intended Use of the Facility?

Allegations were made that Blackwater potentially used misleading names, such as Southwestern

Law Enforcement to inappropriately disguise their identity or hide the intended use of the

facility. We reviewed the building permit and business tax certificate applications that were filed

for the Blackwater facility. Based on this review, we determined that Blackwater did not

misrepresent their identity. Regarding the use of the facility, it was inconclusive if two of the

applications submitted for the use of the facility were intentionally misrepresented or an

oversight.

Identity Recorded on Permit Applications

In the City of San Diego, building permit applications do not require the name of the business

owner. According to the DSD Director, building permit approval is not based on the applicant or

owner name. Building permits are issued if the facility changes are permissible under the

Municipal Code. The Municipal Code Section 112.0102 permits either an owner, an agent of the

owner, or a party with a legal interest to be named on the permit application.

We found that building contractors submitted and signed all four applications for tenant

improvements submitted for the subject property. Blackwater did not complete, sign, or file any

of the building permit applications, nor were they required to do so. As shown on the next page,

Noble Construction signed two of the applications; Rowen Electric completed one application, as

did TSA Contracting.

Use Listed on Permit Applications

We found that Blackwater’s contractor Noble Construction incorrectly listed the use of the

facility on the permit application as “Warehouse with offices,” and their contractor Rowen

Electric incorrectly left the “use” question blank on a permit application. However, there were

two other permit applications completed near the same time period that did indicate the use was

for “Training.” We could not determine if the incorrect or missing information on the

applications for projects 38862 and 140766 was intentionally misrepresented or an oversight.

5

11


BuikIin Permit Annlications Associated With 7685 Siemnre Viva Road

Project ApplicationProperty

PropertyOwner or

Owner/Lessee ApplicantProject Proposed

Number Date Lessee ITenant Name

Description Use

Tenant

Southwest Law 44 feet ofNoble Warehouse

Enforcement Lessee / Partitions in138862 9/5/07 Construction with

Training Tenant existing officesConsultantsEnterprises office space

Noble Install air

140766 10/1/07 Blank Blank Construction conditioning Training

Consultants and exhaust

Safchild Electrical

140766 2/7/08 InvestmentsProperty Rowen tenant BlankOwner Electric

LLC improvement

Raven TSALessee / Add indoor Training

150059 2/7/08 Development TenantContracting firing range facility

Group Inc.

Source: Development Services Department.

We should also note that the building plans associated with project number 138862 identified the

project title as, “Southwest Law Enforcement Training Enterprises.” According to a Blackwater

official, Blackwater was originally planning to use Southwest Law Enforcement as a sub

contractor to its predecessor American Shooting Center. According to the Blackwater official

they were unable to come to terms with Southwest Law Enforcement Training Enterprises, so

they decided to proceed with the project without them.

Recommendation:

1. DSD should ensure permits are not approved unless the permit application includes all

required information (i.e. “Property Owner or Lessee Tenant” and “Proposed Use”).

Applicants should not be allowed to leave sections of the application blank.

Business Tax Certiticate

All businesses operating in the City of San Diego are required to obtain a business tax certificate.

On their business tax certificate application, as shown on the following page, Blackwater

indicated its primary business activity at the facility would be security training for the U.S. Navy,

6


specifically to conduct a course called, “Ship Reactionary Force Basic” (SRF-B).1 The business

tax certificate application was dated February 6, 2008. Based on this we determined that

Blackwater did not misrepresent their identity. In our opinion, the business tax certificate

application is direct evidence that Blackwater represented to the City their intent to operate a

training facility at the address.

Blackwater City of San Diego Business Tax Application

-——-————-

a. .-

January 1, 2OO 15

Source: City of San Diego.

A description and the content of this course is available on the internet at www1bodaily.com’archive;2OO8/Q4

April! I -Apr2008/FBO-0 1 550258 .htm.

7

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5b1A P.13-,I’Mua:,c. 02:


Did Development Services’ Staff Properly Issue Permits for 7685 Siempre

Viva Road?

Questions have been raised whether DSD properly issued permits for the Blackwater facility.

We reviewed the Municipal Code, the City Attorney’s opinion, and interviewed DSD staff, as

well as Blackwater officials. Based on this review we determined that DSD staff had the

authority under Municipal Code Section 111.0205 to classify Blackwater’s use of the building as

a vocational / trade school. Although the Municipal Code states that the subject matter taught at

the vocational / trade school must be related to a use permitted within the Industrial Sub-district,

the Municipal Code does not address whether the subject matter should be directly or indirectly

related to the use.

Classification as Vocational I Trade School

DSD staff had the authority under the Municipal Code to classify Blackwater’s use of the

building as a vocational / trade school.

• Section 111.0205 states that the City, without a public hearing, is authorized to make a

determination of the proper usage.2

• Section 131.0620(e) states that for use that cannot be readily classified, the City

Manager shall determine the appropriate use category and use subcategory upon request

of the applicant or property owner.

In our opinion, based on this code language, DSD has the authority to classify the use of the

facility as vocational I trade school. DSD classified the American Shooting Center, another

shooting range located in the City, as a vocational I trade school. Vocational / trade school, a

permitted use, may be approved or denied by staff in accordance with a process one review.

Process one applies to construction permits including Building Permits, Electrical Permits,

2 SDMC I 11 .0205 states the City Manager may designate a staff member to make an impartial decision, without a

public hearing, on a permit, map or other matter in accordance with the decision making procedures of the Land

Development Code,

8

itt


Plumbing or Mechanical Permits, Demolition/Removal Permits, Grading Permits, Public Right-

of-Way Permits, and Sign Permits.3

However, the Municipal Code states that instruction at the vocational / trade schools should be

related to a use permitted in the Otay Mesa Development District (OMDD).4 We reviewed the

following communications pertaining to how the use related to other industries in the industrial

zone:

• The Development Service Director’s memo dated April 24, 2008 (Attachment III)

• Email from Development Services Senior Planner dated May 12, 2008 (Attachment IV)

• The City Attorney’s Memo dated May 16, 2008 (Attachment V)

• Blackwaters Letter to Mr. Luna dated May 16, 2008 (Attachment VI)

• Blackwater’s Letter to Mayor Jerry Sanders dated May 19, 2008 (Attachment VII)

The Municipal Code states that instruction at the vocational / trade schools should be related to a

use permitted in the Otay Mesa Development District (OMDD). However, the Municipal Code

does not state if the subject taught should be directly or indirectly related to a permitted use.

Further, the Municipal Code does not indicate how security training should be classified. A

DSD official informed us that:

“The facility will be providing training for uses allowed in the zone. The project

proposes security, law enforcement and/or military training. Security guard type uses

would be classified as a business support use. Business support uses are permitted in the

OMDD by SDMC l517.0301(a)(7). There are many examples of security guards at other

properties in Otay Mesa that have the same zoning designation. Law enforcement and

military uses are classified within the government office use category. Government

offices are permitted in the OMDD by SDMC 1517.0301(a)(I).”

SDMC I29OIO2 and 129.0107.

SDMC 1517.0301 lists the uses permitted within the Industrial Subdistrict.

9

ic


On the other hand, the City Attorney indicated that “neither a shooting range nor law

enforcement/security training operation clearly qualify or fall within any of the permitted uses of

the JR-I-I or IH-2-I zones.”5

The complexity and lack of clarity for certain sections of the Municipal Code contribute to these

differing interpretations. In our opinion, the City should develop a process for reviewing and

approving projects that may be subject to interpretation or the Municipal Code may not clearly

define the use. At a minimum, the process should include notifying the Chief Building Official

of the project and requiring final sign-off. Further, the City should regulate the location of law

enforcement or security training related facilities to facilitate future land-use decisions.

Recommendations:

2. The City’s Chief Building Official and City Attorney should review the additional

information provided in the attachments of this report to determine the correct course of

action regarding the permits issued for the facility located at 7685 Siempre Viva Road.

3. DSD should implement a process for reviewing and approving projects that may be

subject to interpretation or the Municipal Code may not clearly define the use.

4. The City should add regulations for law enforcement and security training facilities in the

Municipal Code.

Additional Issues that Came to Our Attention During the Course of Our Audit

During our audit, we also reviewed and identified issues related to firearms, the Hazardous

Materials Questionnaire, DSD’s documentation retention, the Certificate of Occupancy, and a

non-permitted structure.

Firearms

During our audit, we identified issues with the discharge of firearms at target or shooting ranges.

We reviewed the Municipal Code for regulations pertaining to the firing of firearms within the

City limits. Municipal Code section 53.10 states “It is the purpose and intent of the Council of

SDMC 131.0604 states that IH- 1-I and I H-2- 1 zones are Industrial Heavy zones. These zones are differentiated

based on the uses allowed: IH-1-1 allows primarily manufacturing uses; 11-1-2-1 allows manufacturing uses with

some office. The Blackwaier facility is located in zone JH-2-1.10


the City of San Diego that firing of firearms and other explosives within the city limits be strictly

regulated for the protection of all persons and property located in the City.” However, section (d)

provides exceptions to this requirement. These exceptions include:

• Firearms fired under the authority of the United States or the State of California, and

• Shooting galleries or target ranges.

The City Attorney stated the shooting gallery exception listed above does not apply to the

Blackwater facility because “this exception does not include vocational or trade schools.”

However, this section of the Municipal Code is not related to the Land Development Code,

which establishes the zoning use and building regulations for permits issued by DSD. In the City

of San Diego, shooting galleries are regulated by the San Diego Police Department (SDPD).6

The SDPD confirmed that a police permit was not required for Blackwater to operate as a firing

range. It is the responsibility of J3lackwater Officials to contact the SDPD (Permits and

Licensing Unit) to ensure they are in compliance with all local police regulations.

Hazardous Materials Onestionnaire

in addition to the permit application for the indoor firing range, a “Hazardous Materials

Questionnaire” was also submitted. The permit applicant is to complete this questionnaire and

the Fire Department staff reviews it during the Fire Plan cheek portion of DSD’s plan approval

process. Per the completed questionnaire, the applicant stated that the business will not “use,

process, store or dispense” any “explosive or blasting agents.”

The applicant signed the form on February 2, 2008, and a Fire Prevention Inspector completed

the Fire Plan check on March 17, 2008. However, the Fire Plan check was only approved after

the applicant was required to note on the plans the following: “The storage and use of small arms

ammunition must be in accordance with the requirements of Chapter 33 of the 2007 California

Fire Code.”

6 SDMC 331601.11

‘7-


This section of the 2007 California Fire Code provides exceptions for possession, storage and

use of small arms ammunition when packaged in accordance with Department of Transportation

packaging requirements. We reviewed the plans and verified that the note was included.

Additionally, the Fire Prevention Supervisor indicated that there were no areas of concern

regarding the completed “Hazardous Materials Questionnaire” submitted for the indoor firing

range. He stated that the storage of ammunition is not uncommon as long as it was in

compliance with the California Fire Code, and cited examples of vendors in the City of San

Diego who stock ammunition for sale.

We also noted that according to a Blackwater official, 100 percent lead-free ammunition will be

used at the facility.

Other Concerns

DSD could not provide the following requested documentation during our review:

• Original Certificate of Occupancy issued when building was completed in 2003.

• Original approved plans for the indoor firing range. (Only the resubmitted plans are on

file.)

• Permit application for the construction of the ship simulator.

During our review, DSD staff could not locate certain requested records. Specifically, we

requested the original approved plans for the indoor firing range (project 150059) and the

Certificate of Occupancy for 7685 Siempre Viva Road. DSD staff advised that they could not

locate these records. This raised concerns regarding DSD’s internal controls over their records

retention. We did not do any additional detailed testing to determine if controls over record

retention are weak.

The Municipal Code states that no structure shall be used or occupied, and no change in the

existing occupancy classification of a structure or portion of a structure shall be made until the

12

ig


Building Official has issued a Certificate of Occupancy approving the use for occupancy7.DSD

could not provide the original Certificate of Occupancy.

We should also note that a permit was not obtained for the construction of the ship simulator at

the facility, even though it was shown on the plans as a future structure to be built. During a site

visit of the facility, we took a photograph (Attachment VIII) of the structure and asked DSD if a

permit was required to construct this structure. DSD Inspection Supervisor advised that a permit

is required and they have notified the contractor.

Recommendations:

5. DSD should clarify whether a Certificate of Occupancy was issued for the building. If

not, Development Services Code Enforcement should not allow any part of the building

to be occupied until the certificate is issued.

6. DSD should notify Blackwater in writing that training may not be conducted in any areas

for which City permits have not been issued.

7. DSD should determine the appropriate actions to be taken regarding the ship simulator

structure that was built without an approved permit.

8. DSD should take additional steps to locate missing records and review controls over

records retention to ensure they are adequate.

‘ SDMC 129.0113(a),13


Attachment I

Audit Objectives, Scope, and Methodology

The scope and objectives of our audit were to determine if I) Blackwater misrepresented its

identity or intended use of the facility located at 7685 Siempre Viva Road, Otay Mesa

Development District; 2) Development Services was in compliance with codes and regulations in

issuing the permits for the Blackwater facility; and 3) the designation of vocational / trade school

for the Otay Mesa site was appropriate.

The following audit procedures were used to achieve the audit objectives:

• Reviewed Development Services’ on-line procedures available to the public for obtaining

building permits.

• Reviewed the Municipal Code regulations related to firearms, permit issuance and project

development for the Otay Mesa Development District, Industrial Sub-district.

• Contacted the San Diego Police Department to obtain information related to permit

requirement for operating a tiring range within the City of San Diego.

• Performed a site visit of the facility located at 7685 Siempre Viva Road.

• Interviewed Development Services, City Treasurer’s and Blackwater Worldwide staff.

• Reviewed permit applications, project plans, print outs from Development Services’

Project Tracking System, and Business Tax Certificate information related to the facility

located at 7685 Siempre Viva Road.

• Met with City Attorney staff to discuss legal issues and they advised they are doing their

own investigation and will be issuing a separate report.

We evaluated specific internal controls related to the audit objectives. Our review focused on the

controls related to the issuance of specific permits for the facility located at 7685 Siempre Viva

Road. We did not perform in depth testing of the overall effectiveness of the internal controls

related to Development Services permitting process. Our conclusions on the effectiveness of the

controls related to the particular permits that we reviewed are detailed in our audit report.


Attachment 11

Timeline of Events Regarding Permits Issued for the Blackwater Facility

Date Event Source

8/14/2001 Application submitted by Master Development Corp. Copy of Application and

for “New Industrial Building” located at 7685 Siempre submitted plans

Viva Road.

Total square feet of facility per submitted plans is

61,599.

9/5/2007 Application for tenant improvements submitted by Copy of Application

Noble Construction Consultants, Inc. for “44 feet of

new partition walls in existing office space” in facility

located at 7685 Siempre Viva Road. Existing use

listed as “Warehouse with offices”. Proposed use

listed as ‘Same (No Change)”.

Development Services Department (DSD) Project

number * 138862

9/5/2007 Hazardous Materials Questionnaire completed for Copy of Hazardous

project number 138862 by Noble Construction Materials Questionnaire

Consultants, Inc. Questionnaire notes no hazardous

materials.

9/6/2007 DSD issues building permit for project number Project Status Report from

138862. Project Tracking System(PTS)

10/1/2007 Application for the installation of AC and exhaust Copy of Application

submitted by Nobel Construction Consultants in the

facility located at 7685 Siempre Viva Road. Existing

use listed as “warehouse”. Proposed use listed as

“Training”.

DSD Project number - 140766

10/1/2007 DSD issues mechanical permit for project number Project Status Report from

140766. PTS

2/7/2008 Application for electrical work submitted by Rowan Copy of Application

Electric for “Electrical T.l.” in facility located at 7685

Siempre Viva Road. No change in use per application.

DSD Project number - 140766


Attachment H

Timeline of Events Regarding Permits Issued for the Blackwater Facility

Date Event Source

2/7/2008 Application for construction permit submitted by TSA Copy of Application

Contracting Inc. for “Add indoor firing range” in

facility located at 7685 Siempre Viva Road. Change in

use noted from “Warehouse” to “Training Facility”

with a total floor area of 5,000 square feet,

DSD Project number — 150059

2/7/2008 Hazardous Materials Questionnaire completed for Copy of Hazardous

project number 150059 by TSA Contracting Inc. Materials Questionnaire

Questionnaire notes no hazardous materials.

2/8/2008 DSD issues electrical permit for project number Project Status Report from

140766. PTS

3/17/2008 Fire Plan Check completed with issues cleared for Project Issues Cycle I I

project number 1 50059. Applicant to provide note on from PTS

plans “The storage and use of small arms ammunition

must be in accordance with the requirements of

Chapter 33 of the 2007 California Fire Code.”

3/1 9/2008 DSD issues building permit for project number Project Status Report from

150059. PTS

3/28/2008 Business Tax Account created in business Treasurers’ Screen Prints from 1TCS

Tax Collection System (TTCS) for Blackwater Lodge and copy of Business Tax

& Training Center, Inc. with business address of 7685 Application

Siempre Viva Road. Application signed by Vice

President on 2/6/08.

Primary business activity per the Business Tax

application is “Blackwater will conduct security

training for the United States Navy”.

4/7/2008 DSD issues mechanical permit for project number Project Status Report from

150059. PTS

4/9/2008 DSD approves zoning clearance for Business Tax Screen Prints from TTCS

License for Blackwater Lodge & Training Center, Inc.

at 7685 Siempre Viva Road.


Attachment III

ThE CITY OF SAN DIEGO

MAYOR JERRY SArDERs

MEMORANDUM

Date: April 24, 2008

To: Jay Goidstone, Chief Operating Officer

From: Kelly B roughton, Development Services Director

Subject: Building Improvements7685 Siempre Viva Road

Per your request, I have prepared this summary of work proposed and the current status

of the project located at the above address.

The project site has an existing industrial warehouse building built as part of Britannia

Corporate Center. The cwrent Structure was permitted August 14, 2001 and was

completed March 26, 2003. The property is zoned as Otay Mesa Development District —

industrial Subdistrict. This zone allows heavy industrial uses by right such as heavy

manufacturing, light manufacturing, research & development, trucking & transportation

terminals, as well as heavy commercial and other compatible uses. Tue uses permitted in

this zone were approved by City Council on December 9, 1997 and made effective on

January 1,2000.

Construction permits that are either in process or recently completed for this property

were applied for as tenant improvements/building permits and inedude the construction of

partition walls, mechanical systems, electrical work, and a modular structure to be placed

inside the existing industrial structure. These permits ‘vere applied for by agents for the

lessee/tenant (Raven Development Group) between September 9, 2007 and February 7,

2008. The last permit was issued on March 19, 2008 and work is still being inspected.

Based on the plans submitted to date, there are a small number of rooms shown to be

used for training purposes, In addition to the heavy industrial and commercial uses,

voeationalltrade schools are permitted in the Otay Mesa Development District Zone.

Training for any vocation or trade including training for security work would, therefore,

he allowed bS’ right. Once tThal inspections ar complete the rooms identified on the

approved plans could be occupied for training purposes. The plans that have been


Attachment IIIPage2Jay Goldstorje, Chief Operating OfficerApril 24? 2008

submitted to the deparbrient too date refer to the remaining portion of this industrial

building as being used for warehouse pulloses. If the project applicant wanted to use this

remaining area for uses other than warehousing, such as training, they would need to

submit another set of construction plans forourreview. This is required because other

uses could have different exiting, fire/life safety, parking impacts, etc. that would need to

be reviewed by Development Services Department staff before these areas could be

occupied.

We will continue to monitor this proposed project and insure compliance with all

applicable Municipal and Building Codes.

Kelly BroughtonDevelopment Services Director

KCB/lgb

91L


Attachment IV

Page I of

Prom: Larson. Chris

Sent: Monday, May 12, 20084:16 PM

To: Zellers, Judy

Cc: Elser, Kyle; Mendenhall, Triofa; Kwan, Willie

Hello, am following-up on your question concerning SDMC 15170301(a)(8) Only training for uses that are permilted in the zoneare allowed. Even though SOMC 15170301(a)(1)states that at uses perrtvtted in the lH-2- zone are allowed the reetnotion ontraining for only those uses allowed in the zone is still a requirement because SOMC 15170103 stales that when there is aconflict between the Land Development Code (Chapters 11-14 of the SDMC) and the Otay Mesa Development Distnct (OMDDthe OMOD applie& However, ttte facilIty wIll be providing traIning for uses allowed in the zone The proiect proposes security lawenforcement and!or military training, Security guard type uses would be classified as a business support use. Business supportuses are permitted in the OMOD by SDMC 1517,0301(a>(7). There are many examples of security guards at other properties inOtay Mesa that have the same zoning designation. Law enforcement and military uses are classified within the government officeuse category. Government offices are permitted in the OMOD by SDMC 1517.0301(a)(1). An example of a govemment lawenoroement facility at a pnperty that shares the same zoning designation is the Border Patrol facility located at 6651 GatewayPark Drive The &order Patrol facility obtained a Site Development Permit to allow for an over-height fence, a Conditional UsePermit to allow for dog kennels, and grading and building permits from the City. As a part of the review for the many permits thatwere issued to the Border Palrol the City did determine that the Border Patrol use is allowed in the zone. Please let me know ifthere is anything else that you need. Thanks, Chris

Sf2 8/20O


Attachment V

Office ofThe City AttorneyCity of San Diego

MEMORANDUMMS 59

(619) 236622Q

DATE: May 16, 2008

TO: Honorable Mayor and Members of the City Council

FROM: City Attorney

SUBJECT: 7685 Siempre Viva Road, Blackwater Law EnforcementlSecurity Operations in

Otay Mesa

INTRODUCTION

On or about May 5, 2008, Mayor Sanders requested an investigation concerning the issuance of

permits by the City for the use and construction of a training facility operated at 7685 Siempre

Viva Road, in Otay Mesa, by an entity commonly known as Biackwater, On May 1, 2008, the

Honorable Congressman Bob Filner requested a similar investigation. in response to these

requests, the City Attorney’s office conducted a legal analysis of the process used to issue the

permits and the mechanisms available to Blackwater for compliance with the law,

BACKGROUND

On or ahout September 5, 2007, an entity operating under the project name “Southwest Law

Enforcement Training Enterprise,” filed a general application with the City of San Diego’s

Development Services Department [DSD] to conduct “Tenant lmprovernents” at 7685 Siempre

Viva Road located within the Otay Mesa Development District. The existing use identified on

the application was warehouse with offices. The proposed use identified on the application was

identified as “same (no change).” The purpose of the application was to construct 44 feet of new

partitions in existing office space. Accompanying the application was a signed Hazardous

Materials Questionnaire where the applicant disclosed that there were no uses of explosives or

blasting agents or other health hazards associated with the activity.

On or about February 7, 2008, another general application was submitted to the City of San

Diego’s DSD to conduct electrical work at the 7685 Siempre Viva Road site for a project entitled


Honorable Mayor and City CouncilM’ay 16, 2008 Attachment V

Page2

“South West Police.” The scope of the work included the installation of two new AC units and

six exhaust fans.

On or about February 7, 2008, a separate General Application was also submitted to DSD for

structura1 work for this same site. The project description on the application was to “[a]dd [an]

indoor firing range” The identified proposed use on the application was for a training facility.

The existing use was identified on the application as warehouse use and the project title was now

“Southwest Law Enforcement.” The Lessee or Tenant was identified on this application as

“Raven Development Group” with an address in North Carolina. However, the September 5,

2007 application had identified the Lessee or Tenant as “Southwest Law Enforcement Training

Enterprises” with an address in San Diego. The Hazardous Materials Questionnaire dated

February 7, 2008 for the construction of the firing range did not identify any uses of explosives

or blasting agents or other health hazards associated with this operation.

QUESTIONS PRESENTED

1. May the project applicant operate a law enforcement/security training facility

within an Industrial Subdistrict of the Otay Mesa Development District with only

ministerial processing and approvals?

2. What processes and approvals must be followed in order for the project applicant

to operate a law enforcement/security training facility within an industrial

Subdistrict of the Otay Mesa Development District?

SHORT ANSWERS

I. No, The project applicant may not operate a law enforcement/security training

facility within an Industrial Subdistrict of the Otay Mesa Development District

with only ministerial processing and approvals.

2. The project applicant may operate such a facility within an Industrial Subdistrict

of the Otay Mesa Development District after the City has complied with the

requirements of the California Environmental Quality Act [CEQA] and after the

City of San Diego’s Planning Commission through a Process Four Hearing has

authorized such use, pursuant to Section 151 7.0301(c)(2) of the San Diego

Municipal Code {SDMCJ. However, if the project applicant intends to use

firearms as part of the training conducted at this same training facility, the project

applicant should also obtain permission from the City Council pursuant to SDMC

Section 53.10(e) and (f). Furthermore, to he consistent with the purnose and

intent of SDMC Section 112.0103, the highest decisionmaking body should hear

all discretionary actions together; therefore, both the underlying approval of the

use of the site for a law enforcement/security training facility should be made by

the City Council in conjunction with the decision to allow the use of firearms on-

site,

2


Honorable Mayor and City Council

My 1 6, 2008 Attachment VPage3

ANALYSIS

The legal authority of the City of San Diego to regulate the use of land for training facilities and

firearm use falls squarely within the City’s police powers. Exercising this authority, the City of

San Diego strictly limits how and when firearms may be used within the City. Specifically,

Section 53,10(a) states, It is the purpose and intent of the Council of the City of San Diego that

the firing of firearms and other explosives within the city limits be strictly regulated for the

protection of all persons and property located in the City.” With the exception of shooting

galleries or target ranges (note: this exception does not include vocational or trade schools) and

government authorized use, no firing of firearms is allowed without City Council approval by

resolution. See SDMC Section 53,10(d) and (a). Approval by City Council is a discretionary act

and will trigger the need to comply with CEQA. In addition, as explained in more detail below,

the underlying zone and use restrictions may also limit where shooting ranges may be allowed.

7685 Siempre Viva Road is located in the IH-2-l zone of the Otay Mesa Industrial Subdistrict

within the Otay Mesa Development District. As stated in SDMC Section 131 .0604(a), the

purpose of the fl-i (Industrial—Heavy) zone

is to provide space for land-intensive industrial activities

emphasizing base-sector manufacturing. The JR zones are

intended to promote efficient industrial land use with minimal

development standards, while providing proper safeguards for

adjoining properties and the community in general, It is the intent

of these zones to limit the presence of nonindustrial uses in order

to preserve land that is appropriate for largescale industrial users.

The IH-l-1 zone allows primarily manufacturing uses and the IH-2-l zone allows manufacturing

uses with some office use. See SDMC Section 131.0604(b), Neither a shooting range nor a law

enforcement/security training operation clearly qualify or fail within any of the permitted uses of

the JR-I-I or IH-2-l zones. Table 13l.06B of Section 131.0622, however, doespermit

vocational/trade schools in the IH-2-l zone and SDMC Section 1517.030](a)(l) cross-references

Table 131 .06B as applicable within the Otay Mesa Industrial Subdistrict. However, as of the

date of this memo, no available information indicates clearly that the law enforcementJsecurity

training facility, as proposed by the applicant, would qualify as a vocational or trade school. ln

addition. SDMC Section 15170301(a)(8)(A) further restricts trade schools within the Otay Mesa

industrial Subdistrict to those “trade schools instructing in subjects related to a use permitted

within the industrial Subdistrict,” However, SDMC Section l517.0301(c)(l) and (2) states other

uses not otherwise identified are permitted under the following circumstances:

(1) Accessory uses for any of the foregoing permitted uses

including signs. As specified in Land Development CodeChapter 14, Article 2, Division 12 (Sign Regulations), for sign


Honorable Mayor and City Council

May 16, 2008 Attachment V

Page 4

regulatory purposes this Otay Mesa Development District shall be

deemed to be an industrial zone.1

(2) Any other uses which the Planning Commission finds, in

accordance with Process Four, to be similar in character to the uses

enumerated in the Otay Mesa Development District Ordinance and

which are clearly within the intent and purpose of the Otay Mesa

Development District. The adopted resolution embodying any

such finding shall be filed in the office of the City Clerk.

Given the type of operation proposed, Planning Commission approval pursuant to

Section 1517.0301(c)(2) is appropriate here.2 Planning Commission review is a discretionary act

and will trigger the requirements of CEQA.3

Since the use of firearms at the site will trigger City Council approval, it would be appropriate

under these circumstances for the City Council to determine the whole of the action; namely,

whether to authorize the use of 7685 Siempre Viva Road as a law ertforcementJsecurity training

facility where firearms will be used, This would be consistent with SDMC Section Il2.0l03.

With respect to the CEQA analysis, at a minimum, potential environmental impacts should be

analyzed, including noise impacts, potential for discharges into the storm drain, accidental

explosion or release of hazardous substances (e.g., lead discharge), fire hazards and impacts ott

fire protection services, other safety concerns due to the firing of guns and potential adverse

effects due to traffic, such as traffic congestion. To the extent these impacts are determined to be

significant, then they should he mitigated and the mitigation documented in a Mitigated Negative

Declaration. Mitigation may include, but is not limited to, the following:

The facility be constructed with impenetrable walls, adequate ventilation and

lighting systems for a shooting range, and acoustical treatment for sound

attenuation suitable for a firing range;

The training facility does not fall into the category of “accessory use” as defined in Section 1130103.

2 SDMC Section 131.0110(a) gives some discretion to the City Manager to determine the appropriate use category;

however, this discretion does not authorize arbitrary determinations, in fact, SDMC Section 131.01)0(c) allows for

an amendment to the Use Regulations Table where a use category or subcategory cannot he determined. Any

amendment vill require City Council approval. Planning Commission review under Section 1517.0301(c)(2)

provides another means for determining appropriate use, in order to avoid the problem of having to fit a square peg

into a round hole..1 Even if this operation were only characterized as a shooting range and not a training facility, a shooting range is

not a use authorized within this zone and would also trigger the need for Planning Commission review, regardless of

the applicabilityofSDMC Section 53.10. See also SDMC Sections 131.0620(a), 131,0630(a) and 1517.0301(a),

SDMC Section 112.0103 stares: “When an applicant applies for more than one permit, map, or other approval for

a single development, the applications shall be consolidated for processing and shall be reviewed by a single

decision maker, The decision maker shall act on the consolidated application at the highest level of authority for

that development as set forth in Section 111.1015. The findings required for approval of each permit shall be

considered individually, consistent with Section 126.0 105.”


Honorable Mayor and City CouncilMay 16, 2008 Atttcbment VPage 5

The facility he operated in a manner that minimizes the possibility of a release ofhazardous waste and/or hazardous waste constituents (e.g., fine powders of rangelead); The facility collect, manage, and dispose of all unreacted gun powders andresidues properly as hazardous waste;

• The facility label each container of hazardous waste generated on-site; and,

• The facility complete a Hazardous Waste Manifest for all hazardous wastesgenerated on-site, and use a registered hazardous waste transporter to transporthazardous wastes off-site to an authorized facility.

CONCLUSION

Because construction permits and other approvals were issued before discretionary approval ofthe underlying use had been obtained, a stop work order should be issued. The applicant shouldbe required to submit a new application for discretionary approval in order to use the site as alaw enforcementisecurity training facility where firearms will be used,5 In addition, noCertificate of Occupancy under SDMC Section 129.0114 should be issued until all discretionaryapprovals have been obtained, including compliance with CEQA. If a Certificate of Occupancyhas already been issued in error, then proceedings to suspend or revoke the Certificate should beinitiated pursuant to SDMC Section 129,0118. This Office is open to considering additionalinformation or facts as they become known; at such time, additional legal analysis may beappropriate.

L1 QCMICHAEL I. AGUIRRE,City Attorney

MJA:SRE:pev

SDMC Section 129.0108 states, “After all required approvals, including any recuireddevelopment permits, have been obtained and all required fees have been paid, the BuildingOfficial may issue a construction permit, Construction shall not begin until the required permitshave been issued.” Section 129.01 05(a) further states, “If a proposed development requires oneor more a’evelopm em permits, the required development penn its must be issued before anapplication is submitted for a construction permit except as provided in Section 1290105(c).”


Attachment VI

16 May 2008

Mr. Eduardo LunaInternal AuditorCity of San Diego600 “B” Street, Suite 1440San Diego, CA 92101

Dear Mr. Luna:

It was my pleasure to give you and members of your staff a tour of our Otay Mesa location on

May 13. We welcomed the opportunity to show representatives of the San Diego city government our

stateof-the-art facility, which will provide vitally important training to members of our armed

services. Toward the end of our meeting, your staff asked several questions regarding the facility. The

purpose of this letter is to provide answers to those questions.

One of your staff’s primary inquiries was how our training facility fits within the Stay Mesa

Development District (“OMDD”). The statute creating the OMDD reads:

The purpose of the [OMDDJ Ordinance is to create and promote the development of the

City’s largest and potentially most significant industrial area.. .. It is intended that this

District will provide for a MI range of industrial uses.. . including. . . necessary

support services... . It is also intended that the [OMOD] provide commercial use types

necessary to support both the industrial area and the border crossing)

Thus, from its very outset, the ordinance establishing the OMDD establishes several themes that

should guide its application. First, the ordinance makes clear that attracting thriving industry to Stay

Mesa is a major municipal priority. Moreover, the ordinance states plainly that the OMDD should

contain a complete range of uses, industrial and commercial, including “support services.”

Our Stay Mesa facility meets these objectives. As you know, Blackwater Worldwide is a

defense contractor. The defense industry “continues to drive San Diego’s economy.”2 And the city

has welcomed other defense contractors into the OMDD.3 We believe continuing to foster

relationships between the city and the companies that support our armed forces is not only the right

thing to do, but that it obeys the mandate of the OMDD ordinance to stimulate the location within the

OMDD of flourishing and stable businesses and industries.

Moreover, the Blackwater Otay training facility can provide an important commercial use that

will support other businesses in the area. Specifically, your staff inquired how Municipal Code section

San Diego Municipal Code § 1517.0101 (Otay Mesa Development District “Purpose and Intent”).

Marty Graham, San Diego t Defense Industry Adapts To The Pentagon’s Changing Needs, SAN Dmoo METR0POLFrAN

UPTOWN RXAMtNER ANt) DAILY BUsINESS REPORT, March 2006.

For example, NON Design & Manufacturing, located at “7560 Bristol Court, Suite A” (two building over from our

facility), NON manufactures realistic models of foreign military hardware, See also Mandy Jackson, San Diego Industrial

Marker a Mix qfHighs and Lows, CALIFORNJA REAl. ESTATE JOURNAL, Feb. 3, 2005 (noting that Otay Mesa has the highest

vacancy rate in San Diego county, but that a trend is emerging of defense contraclors putting to use vacant warehouse

buildings).

3’


Attachment VI

151 7.0301(a)(8)(A) might apply to the facility. That section explicitly allows trade schools in the

OMOD “instructing in. subjects related to a use permitted within the Industrial Subdistrict.”

As a threshold matter, as your staff noted in our meeting, Section 1517.03 01 as a whole is

somewhat confusing andlor internally conflicted. An earlier subpart, section 1517.0301(a)(l),

specifically authorizes “All uses permitted in the IH-2-1 zone.” Thus, based on section

1 517.0301 (a)(1), a vocational school is permissible in the OMDD as a matter of right, because

vocational schools are permitted in the 11-1-2-1 zone.

But even if section 1517.0301(a)(8)(A) applied, it would still allow a vocational school in the

OMDD. Section (8)(A) allows a trade school to operate that instructs in subjects related to a use

permitted in the Industrial Subdistrict. The Industrial Subdistrict allows for a wide variety of uses,

including: (1) scientific research and development activities; (2) manufacturing plants requiring

advance technology and skills; (3) facilities engaged in the production of experimental products; (4)

general industrial uses (defined as “Establishments engaged in the.. . manufacturing.. . testing [or]

servicing. . of a wide range of products”); (4) storage warehouses; and (5) facilities involved in the

wholesale distribution of various goods (including machinery, equipment, and supplies).4 Thus, if the

subjects taught at our vocational facility relate to any of these permissible uses, our facility is also

permissible.

Our facility will instruct in a variety of subjects, all of which are related to permitted uses in the

OMDD. For example our facility will instruct on proper safety techniques for using the latest state-of-

the-art personal weaponry, Because facilities engaged in researching and developing this weaponry

are permitted in the OMDD, a vocational school instructing end users on how to properly employ these

devices would also be permissible. Our facility will also instruct students on how to assemble and

disassemble firearms. Because facilities engaged in the manufacturing of firearms and firearm

components are permitted in the OMDD, a vocational school instructing individuals on how to

assemble these items would also be permissible.

It should also be noted that a P.O.S.T.-certifled police academy is located on the campus of

Southwestern College, at 8100 Gigantic Street in Otay Mesa, less than a quarter mile from our

facility.5 Thus, not only has the city presumably permitted, on private property, a vocational school

similar to ours, but this use (police academy) would also provide another practical relationship

between the subjects taught at our facility (safe police techniques) and thus, be the grounds for

permitted use in the OMDD. Finally, as noted above, because other defense-contracting or aerospace

firms would clearly be permissible in the OMDD, a vocational school providing training and support

services for the defense industry would also be permissible in the OMDD, and, I submit, a desired,

complementary use.

As the above analysis shows, our vocational facility is permitted as a matter of right. It is thus

properly located in the OMDD, under several, independent grounds.

Another issue raised by your staff was the propriety of Southwest Law Enforcement Training

Enterprises being involved in the initial permit requests. This is a non-issue for two reasons, First,

Blackwater Worldwide has been completely forthcoming in its dealings with San Diego officials.

‘ See San Diego Municipal Code § 1517.0301(a)(2)(A), (2)(B), (2XD), (3), (6)(A), (6)(B), etc.

Southwestern College also apparently runs a nursfrig and fire vocational school.

3a


Attachment VT

Every planner, every inspector, and every official has known they were dealing with Blackwater,

because throughout the process, all individuals working on the project personally identified themselves

to city staff as representing E3lackwnter. As a result, the city has been aware, for quite some time, that

Blackwater wished to locate a facility in Otay Mesa. As a matter of fact, the business permit issued to

Blackwater in connection with this project not only makes clear that Blackwater is the entity that will

do business at the Otay Mesa facility, but it also lists my home address. There has been no deception

here.

Secondly, as you know, it is permissible for a variety of entities to be involved in the permitting

process for a project.6 Southwest Law Enforcement is a respected law-enforcetnenttraining

partnership, which was lawfully formed in the state of California and can legally do business in the

state. During the early stages of this project, Dlackwater Worldwide was considering partnering with

Southwest Law Enforcement to take advantage of its expertise.7 Instead, we could not come to

mutually agreeable contractual terms, and decided to proceed with the project without Southwest. This

is no different from three or four developers or contractors being involved with the early stages of a

project, As contractors come and go, so do business relationships. Neither affects the validity of the

permits, which as you know, relate to a location, not an individual.

In sum, Blackwater has been completely forthcoming during this entire process, from the outset

through the present time, even opening up our business to the city’s internal auditors (whose

jurisdiction is limited to examining the city’s internal finances) — an extraordinary gesture under the

circumstances.

The final concern raised by your auditors was whether we possessed a permit for the shipping

containers on the property that will be used to simulate a navy ship. From our conversations with San

Diego Development Services, it appears your auditors misunderstand the usage of the movable

shipping containers and the applicable regulations, En any event, our contractor is working steadfastly

with Development Services staff to confirm that their approvals of the use were valid and properly

issued.

Again, I want to thank you and the Mayor for your interest in our facility. San Diego has

traditionally been a city very supportive of our men and women in the aimed forces, and as the Navy

itself has noted, Blackwater provides indispensable, “highly specialized” training of our “Sailors and

Marines [when] no active duty personnel possess[] the requisite experience.”8 We thank you for the

opportunity to enable us to provide this training, critical to national security, in the City of San Diego,

while following all applicable local rules and regulations,

Brian Bo iglioVice-President, Western OperationsBlaekwater Worldwide

San Diego Municipal Code § I 12.0102(a)(3); 113,0103.

7contrary to earlier erroneous reports, Southwest Law Enforcement is an independent entity with which Blackwater

entered arm’s-length commercial negotiations. There is no common management or ownership.

Letter from Rear Admiral M. Flanders to Ms. Barbara Simmons (Jul. 31, 2007).

33


Attach mcnt VII

MAYER BROWN

Mayer Brown LLP350 South Grand Avenue

25th FloorLos Angeles, Caftomie 90071.1503

inMaloTei(213)229.9500

ay , vv Main Fax (213) 625O248corn

John NadolertcoDirect ICI (213) 229-5173

Direct Fax (213) 576-8133ayerbrovm.cn

Mayor Jerry SandersCity Administration Building11th Floor, 202 C StreetSan Diego, CA 92101

Dear Mayor Sanders

This past Friday, City Attorney Aguirre issued a memorandum to the Mayor and

Members of the City Council. The memo, which indicates that it was prepared in response to

your request for an investigation, purports to analyze certain legal issues relevant to the

permitting of the training facility to be operated by our client, Blackwater Worldwide, in Otay

Mesa. Based on that analysis, which proceeds on incorrect factual assumptions and reaches

faulty legal conclusions, the memorandum recommends that action be taken to prevent the

facility from operating

Certain media reports discussing the City Attorney’s memorandum also indicated that, in

apparent reliance on the City Attorney’s memorandum, the City may be considering imminent

action with respect to the facility and its permits. To our understanding, your administration has

been conducting its own review of the permitting process with respect to the Otay Mesa facility,

with an initial report on the matter not due until May 23. As such, it may well be the case that

the media reports of imminent action on your administration’s behalf be it in reliance on the

City Attorney’s memorandum or otherwise, are inaccurate.

To the extent your administration is considering such action, and particularly to the extent

your administration is relying on the City Attorney’s memorandum, we felt it important to

apprise you and your administration of the correct facts and proper legal analysis. In doing so,

we hope to prevent action taken in error that might irreparably harm Blackwater.’

Although the City Attorney did not contact Backwater for information pertaining to its permits, the

memorandum’s concludes by stating that the ‘Office is open to considering additional information or facts as they

become known; at such time, additional legal analysis may be appropriate” Given the City Attorney’s apparent

willingness to consider additional information, we are copying the City Attorney on this letter.

Mayer Brown tIP operates in combination with our associated English imited Iiabiity par1nersH

and Hong Kong partnership (and its associated entities in Asia).


Mayer Brown LLP

Attachment VII

May 19, 2008Page2

For starters, the memorandum states that because Blackwater will train members of the

U. S. Navy on the proper use of firearms at the facility, the San Diego Municipal Code (SDMC)

requires a special approval by the city council, This is incorrect.

SDMC section 53,10 governs the discharge of firearms within the city. As the

memorandum noted, section 53.10 generally prohibits the use of firearms and allows the city

council to issue permits for the same under “conditions as it deems proper.” However, SDMC

section 53.10(d) clearly permits the discharge of firearms, without discretionary council approval

or CEQA review, if the firearms are discharged at a facility instructing on the proper use of

firearms and allowing individuals to engage in target practice. Such facilities are called “target

ranges.”2 Section 53.10(d) reads: “Exceptions: This section does not apply to... target

ranges.”

By exempting from special approval processes the places where San Diegans (and in this

case, the men and women of the U.S. Navy) may practice gun safety and gun accuracy, the

Municipal Code is consistent with the public policy of the State of California, which similarly

exempts target ranges from even the strictest of gun laws. See Cal. Pen. Code § 12026.2(a)(9)

(exempting people traveling to target ranges from California’s concealed weapon ban); Cal. Pen.

Code § 12027(f) (exempting members of target ranges, whether public or private, from other

concealed weapons restrictions); Cal. Pen. Code § 12031 (b)(5) (exempting individuals at target

ranges from being charged with felony for carrying a loaded weapon); Cal. Pen. Code §1 2070(b)(9) (exempting target ranges that loan guns to individuals from California gun.transfer

laws); Cal. Pen. Code § I 2073(b)(7) (exempting target ranges from certain recordkeeping

requirements); Cal. Pen. Code § I 2280(k)(1 )(C)(i) (exempting target ranges from California

assault weapons ban); Cal. Pen. Code § 1228 5(c)(3) (exempting individuals at target ranges

from certain assault weapon registration requirements); and Cal. Civ. Code § 3482.1 (exempting

compliant shooting ranges from nuisance liability).

Taken together, these provisions, along with SDMC section 53.10(d), make very clear

that it is the policy of the State of California and the City of Sun Diego to exempt target ranges

from even the most onerous of gun restrictions, to encourage learning about the safe operation of

firearms. Consequently, it is inaccurate to claim that the target range component of Blackwater’s

training facility will require council approval or CEQA review.

The memorandum also states that a law enforcement or security training operation does

not “clearly qualify” as a permitted use in Otay Mesa.3 This again is incorrect, as vocational

facilities are permitted in Otay Mesa, as a matter of right, under two distinct provisions of the

Municipal Code. SDMC section 1517.0301(a)(1) specifically authorizes “All uses permitted in

2 While the SDMC does not define “target range,” the dictionary defines “target range” as “a practice range for

target practice,” a synonym for “firing range.” See http:/!wordnetorincetonedu/per1Jwehwn?s=taret%2Qrang (tast

accessed May 18, 2008),

City Attorney Memorandum, page 3.

LADT3OI 28780258.1 9-May-O8 4:49


Mayer Brown LLP

Attachment VII

May 19, 2008Page 3

the TH-2-l zone,” It further exempts facilities permitted in the IH-2-l zone from obtaining any

special permits, including an Otay Mesa Development Permit. Vocational schools are permitted

in the 11-1-2-1 zone, under SDMC section 131.0622, Table 131-06B. Thus, because Blackwater’s

facility, a vocational school, would be permitted in the 11-1-2-1 zone as a matter of right, it is

similarly permissible, as a matter of right, in Otay Mesa.

SDMC section 1517.0301(a)(8)(A) provides additional authority that a vocational school

is permissible in Otay Mesa. That section allows a trade school to operate that instructs in

subjects related to a use permitted in the Industrial Subdistrict. The Industrial Subdistrict allows

for a wide variety of uses, including: (1) scientific research and development activities; (2)

manufacturing plants requiring advance technology and skills; (3) facilities engaged in the

production of experimental products; (4) general industrial uses (defined as “Establishments

engaged in the. . . manufacturing. . . testing [or] servicing. . . of a wide range of products”); (4)

storage warehouses; and (5) facilities involved in the wholesale distribution of various goods

(including machinery, equipment, and supplies). See San Diego Municipal Code §1 517.0301 (a)(2)(A), (2)(B), (2)(D), (3), (6)(A), (6)(B), et seq. Thus, if the subjects taught at

Blackwater’s vocational facility relate to any of these permissible uses, it is also permissible.

Blackwater’s facility will instruct in a variety of subjects, all of which are related to

permitted uses in the Otay Mesa Industrial Subdistrict. For example, Blackwater’s facility will

instruct on proper safety techniques for using the latest state-of-the-art personal weaponry.

Because facilities engaged in researching and developing this weaponry are permitted in the

subdistrict, a vocational school instructing end users on how to properly employ these devices

would also be permissible. Blackwater’s facility will also instruct students on how to assemble

and disassemble firearms, Because facilities engaged in the manufacturing of firearms and

firearm components are permitted in the subdistrict, a vocational school instructing individuals

on how to assemble these items would also be permissible.

One final issue on this subject is worth discussing. The memorandum questions whether

the Blackwater facility is indeed a “vocational school.”4 Yet, on page two, the memorandum

recognizes that the facility will be a “law enforcement/security training facility.” The facility

will clearly be a “vocational school,” as that term is commonly understood, While the San Diego

Municipal Code does not define “vocational schooJ,” the dictionary defines it as “a school

offering instruction in one or more skilled or semiskilled trades or occupations” There should

be no doubt that a facility offering specialized training to the men and women of the U.S. Navy

* Id

See hrt;/1dictionary.rferencecomJbrowseIvocatorial%ZOschooI (last aecssed May 1 8, 2008),

LADROI 2878G255.1 l-May-OS 4;4

7


Mayer Brown LLP

Attachment VII

May 19, 2008Page 4

would qualify as a vocational school. To state otherwise is to demean the occupational choice of

the men and women who chose serving our country in the military as their occupation.

In sum, the Blackwater facility is clearly a vocational school. Vocational schools are

permitted in Otay Mesa — as a matter of right with no need for discretionary or CEQA review —

under two separate provisions of the Municipal Code. In fact, a P.O.S.T-certified7police

academy is located on the campus of Southwestern College, at 8100 Gigantic Street in Otay

Mesa, less than a quarter mile from Blackwater’s facility. There can be no doubt that the

Blackwater facility is properly located within Otay Mesa, and that the city’s ministerial review

process correctly resulted in the issuance of permits for the facility.

J3lackwater Worldwide is keenly aware that this is an election year, but asks that politics

stay out of the permitting process. Blackwater has been completely forthcoming with every city

inspector and every city official. Just three weeks ago, on April 29, we met with the Chief

Building Official, Afsaneh Ahntadi, at the Development Services headquarters. At that meeting,

Ms. Ahmadi closely reviewed all of Biaekwater’ s plans and permit applications, and the next

day, approved all permits. On May 12, Bluckwnter opened the facility to the city’s Internal

Auditor, an extraordinary step considering municipal finances have not been (and to our

knowledge are not) an issue here.

Throughout the permitting process, Blackwater has collaborated with city officials to

make sure it proceeded lawfully and openly. As a result, we know Blackwater’s permits are

proper, and we trust that with this letter, we have cleared up the factual or legal misconceptions

concerning the facility contained in the City Attorney’s memorandum. We also trust that no

actions will be taken by your office or administration based on the City Attorney’s

memorandum.9

As the memorandum also noted, the facility also has the capability to instruct members of law enforcement and

those wanting a career in security, This should also remove any doubt that the facility is a vocational school, as

surely law enforcement is a vocati0n law-enforcement techniques are not typically taught at conventional

universities.

‘P.O.S.T. stands for Peace Officer Standards and Training. P.O.S.T. certification means a facility follows the

standards and training courses outlined by the state of California for the training of peace officers,

There also appears to be a misconception in the memorandum that a facility must be either a “target range” or a

“vocational school.” But those terms address different concepts in the statutory scheme. A “vocational facility” is a

zoning “use.” See e.g.. SDMC section 131.0622, Other such permitted uses, for example, include universities or

sports arenas, and others listed in the zoning ordinance. See, e.g., SDMC § 131.0112(a), 131.0622, A “target

range” on the other hand, is not a “use” and the code does not define it as such. Indeed, a “target range” is a

component or feature of other uses, because a “target range” can be on the campus of a university, within a sports

club, or part of the instruction taught at a vocational facility. Thus, a “vocational facility” can feature a “target

range.”

We also note, at a minimum, before any action is taken on any of its permits, Blackwater would need to be

provided formal notice of whatever “problems” allegedly were found, and an opportunity to be challenge those(cont’d)

LADBOt 2S780258.I 19-May-OS 14:49

3+


Mayer Brown tiP

Attachment VII

May 19,2008Page 5

As the Navy itself has noted, Blackwater provides indispensable, “highly specialized”

training of our “Sailors and Marines [when] no active duty personnel possess[J the requisite

experience,”0 San Diego has a proud history of being a city very supportive of our men and

women in the U.S. Navy, and there is no good reason for San Diego to deprive them of training

at this critical time. Blackwater Worldwide knows it will make the community proud by offering

this training, vital to national security, in the City of San Diego.

We wouid be happy to provide the city additional information as necessary. Please do

not hesitate to contact me with any questions.

Very truly yours,

Mayer Brown LLP

cc: City Attorney Michael Aguirre

Chief Building Official Afsaneh Ahmadi

Members of the City Council

(... cont’d)

findings “at a meaningful time and in a meaningful manner.” See h’amdi v Rur,ttfe1d, 542 US. 507,2649(2004)

(“For more than a century the central meaning of procedural due process has been clear: ‘Parties whose rights are to

be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.’ It is

equally fundamental that the right to notice and an opportunity to be heard ‘must be granted at a meaningful time

and in a meaningful manner.’ These essential constitutional promises may not be eroded” (internal quotes and

citations omitted)).

° Letter from Rear Admiral M. Flandcr to Ms. Barbara Simmons (Jul. 31, 2007).

LADHOI 28780251 19-May-OS 14:49


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Attachment X

June 3, 2008

Mr. Eduardo Luna, Internal AuditorOffice of the Auditor and Comptroller600 B Street, Suite 1440San Diego, CA 92101

Dear Mr. Luna,

Subject: Audit of Permits Essued for the Blackwater Facility

In response to your review of the above noted matter, the Development Services Department has

the following responses:

Recommendation No. 1 — DSD should ensure permits are not approved unless the permit

application includes all required information (i.e. “Property Owner or Lessee Tenant” and

“Proposed Use”). Applicants should not be allowed to leave sections of the application blank.

Response: The Department agrees with this recommendation and will reinforce this with

employees that accept permit applications.

Recommendation No. 2 — The City’s Chief Building Official and City Attorney should review

the additional information provided in the attachment of this report to determine the correct

course of action regarding the permits issued for the facility located at 7685 SiempreViva Road.

Response: The Department agrees with this recommendation.

Recommendation No. 3 — DSD should implement a process for reviewing and approving

projects that may be subject to interpretation or the Municipal Code may not clearly define the

use.

Response: The Department has several formal processes for employees to use to evaluate

interpretations of the code, They can work directly with their supervisors. They can take

interpretations before their senior line supervisor meetings. Staff can also bring items before the

Department’s Policy Team (Management Team and key technical staff). Where the code is not

clear, they can bring proposed code amendments to the Department’s Code Update team. Each

of these options provide staff with ways to validate their decisions and, where necessary, their

interpretations. The Department will reinforce these formal processes with staff.

Developmenr Services222 Fi iwenuc, MS SO> Sun Mego, CA 92(0(4 59

Tel >619> 6465460

41

THE CITY OF SAN DIEGo


Mr. Eduardo Lana, Internal AuditorJune 3, 2008 Attachment X

Recommendation No. 4 — The City should add regulations for law enforcement and security

training facilities in the Municipal Code.

Response: The Department will bring this recommendation to the Code Update team and to the

outside advisory group, the Code Monitoring Team (created by the Land Use and Housing

Coanrni ttee) for their consideration.

Recommendation No. 5 — DSD should clarify whether a Certificate of Occupancy was issued

for the building. If not, Development Services Code Enforcement should not allow any of the

building to be occupied until the certificate is issued.

Response: The Department agrees with this recommendation,

Recommendation No. 6 — DSD should notify Blackwater in writing that training may not be

conducted in any areas for which City permits have not been issued.

Response: The Department has already notified Blackwater. See Attached,

Recommendation No. 7 — DSD should determine the appropriate actions to he taken regarding

the ship simulator structure that was built without and approved permit.

Response: The ship simulator structure was shown on one set of plans that the Department

reviewed but it was identified as a future facility, No permits had been obtained. Upon the

Department’s learning of the existence of the structure, Blackwater was immediately notified of

the requirement to obtain permits for the structure prior to using it. Blackwater has submitted an

application for a permit and staff is reviewing their application.

Recommendation No. 8 — DSD should take additional steps to locate missing records and

review controls over records retention to ensure they are adequate.

Response: The Department’s record management and control is being reviewed through the

Mayor’s Business Process Reengineering program. The Department is also coordinating record

management and controls with the City Clerks Business Process Reengineering efforts since both

departments have overlapping responsibilities.

Thank you for the opportunity to respond to your audit’s recommendations,

Si.nc ly,

Kelly”Broughton, Director.Development Services Department

Attachment


May 19, 2008

Mr. Brian BonfiglioVice PresidentBlackwater WorldwideP0 Box 710897San Diego, CA 92171-0897

Subject: 7685 Sieinpre Viva Road, Raven Development Group

Dear Mr. Bonfiglio,

The City will not issue a certificate of occupancy for the above referenced project

pursuant to Section 129.01 14 of the San Diego Municipal Code (SDMC). The portions

of the building identified for use as a shooting range and vocational/trade school shall not

be occupied until a certificate of occupancy has been issued for this change of use or

occupancy pursuant to SDMC Section 129.0113.

As outlined in the attached opinion from the City Attorney’s offIce, no certificate of

occupancy will be issued until the appropriate discretionary processes associated with the

use of firearms in city limits and determination of use for the vocational/trade school by

the Planning Commission has been completed. Since Planning Commission and City’s

Council’s actions will be considered discretionary, these actions are subject to review

under the California Environmental Quality Act (CEQA).

As the majority of the structure is still identified for warehouse uses, no other uses are

permitted until a submission for a request of change in occupancy has been made and

approved by the Development Services Department.

Cc: Jay Goldstone, Chief Operating OfficerMichael J. AguilTe, City AttorneyWilliam Anderson, Executive Director of City Planning and Development

Afsaneh Ahrnadi, Chief Building Official

THE CITY OF SAN DIEGo

Kelly Broughton, DirectorDevelopment Services Department

OiVRS Y

Development Services1222 Fiat A’onue, MS 501 o San Diego, (A 921014155

Tel (619) 4465460

(-I—,


‘JlfflhIlX3


Land Development ManualVolume I, Chapter 1

Project SubmittalRequirements

Section 1Guide to Project

Submittal Process

January 2008

Printed on Recycled Paper

Development and Permit Information: (619) 446-5000

Appointments: (619) 446-5300ww.ntliego.ovidevelopnient-services

This rnfonnation, document, or portions thereol will be made available in alternative formats upon request

Toe Csn or S.o Ds,:so

Lfç


Project Submittal Requirements Guide to Project Submittal Process

TABLE OF CONTENTS

Topic

Section 1: Guide to the Project Submittal Process

Important Steps to Project Approval 1-1

Optional Project Review ServicesPreliminary Review 1-9

Substantial Conformance Review 1-9

Public Project Assessment 1-10

Project Submittal Requirements I - II

Section 2: Construction Permits - Structures 2-2

Section 2A: Construction Permits — Single-Dwelling/Duplex and Accessory Structures 2A-2

Section 3: Construction Permits - Grading and Public Right-of-Way 3-2

Section 4: Development Permits/Approvals 4-2

Section 5: Subdivision Approvals 5-2

Section 6: Policy Approvals 6-2

Table of Contents I Page 1January2008 J

(j3



Submittal documents referenced in this manual

Forms

1. General Application (DS-3032)2. Parcel information Checklist (DS-302)

3. Water Meter Data Card (DS- I 6)4. Affordable Housing Checklist (DS-530)

5. Hazardous Materials Questionnaire (DS-3 163)

6. Hazardous Materials Information (FPB-500)

7. Ownership Disclosure Statement (3j)

7. Child Care Center Hazardous Materials Substance Approval Form (S-527)

8. Storm Water Requirements Applicability Checklist (DS-560)

Information Bulletins

1. III — General Procedures

2. jj — Disclosure Requirements for Hazardous Materials

3. 140 — How to Obtain a Permit to Build a Residential Addition

4. 143 — Permitting Requirements for Alcoholic Beverage Establishments

5. 143 — Adult Entertainment Establishments

6. 147 — Tenant Improvements

7. 165 Public Right of Way Permits

8. 177 — Traffic Control

9. 500 — Substantial Conformance Review

10. jQ — Assessment of Public Projects

11. — How to Obtain Public Noticing Information

12. 513— Preliminary Review

13. j—Development Permit, Subdivision and Grading Permit Geotechnical Study Requirements

14. 8— Self-Certification for Completeness Review

15. 523 — How to Obtain a Neighborhood Use Permit for a Sidewalk Café

16. 3 — How to Obtain a Temporary Use Permit (TUP)

17. 534 How to Obtain a Neighborhood Use Permit for Pushcarts

18. 536 — Submittal Requirements and Procedures for Telecommunication Facilities

19. 59 — Condominium Conversion Regulations

20. — Site Reconnaissance and Testing

21. Grading and Public Right of Way Self Certifications

22. 76 — Encroachments in the Right of Way

23. LL — Permit Instructions/Procedures for Building Demolition/Removal

Building Newsletters (BNL)

1. BNL 1 Foundation Only Permits

2. BNL 1-2 Plan Checking Policy — Preparation of Plans and Incomplete Plans

3. E3NL_l7J Special Inspection and Structural Observation Requirements on Plans

4. BNL 18-I Soil Classification and Allowable Bearing Value

5. BNL 18-3 Geotechnical Reports

Table of Contents Page

January 2008iii



6. BNL 5-7 Townhouse Contiguous Dwellings Classified as Group R Division 3

Fee Schedules

1. 501 - Fee Schedule for Construction Permits Structures

2. 501 A — Fee Schedule for Construction Permits — Single-Family Dwelling/Duplex

3. - Fee Schedule for Construction Permits - Grading and Public Right-of-Way

4. - Fee Schedule for Development & Policy Approvals/Permits

5. 4 * Fee Schedule for Subdivision Approvals

1 Table of Contents Pa e

January2008iv



SECTION 1: GUIDE TO THE PROJECT SUBMITTAL PROCESS

IMPORTANT STEPS TO PROJECT

APPROVAL

Following the basic steps listed below will assist

you in completing your project submittalpackage and help lead you to a successful project

approval. To assist you in determining the Cityof San Diego’s planning, zoning, subdivision,

and/or building regulations that apply to your

project, a Parcel Information Checklist (DS-302)

has been developed. The information on this

checklist will be used at project submittal to

determine the appropriate review for your

proposed project. By evaluating this information

prior to designing your project, you can avoid

mistakes early in the process, save time, and

reduce processing costs. The Parcel Information

Checklist is required for all applicationsubm ittals.

1. Determine the zoning designation of your

property.Zoning is the legislative method by which land

use, intensity of development, and site design

and architectural design are controlled. Somezones apply to all or many parts of the City while

other zones, such as those within PlannedDistricts, apply only to very specific sections of

the City. Another type of zoning, called Overlay

Zones add special regulations to the underlyingzone. The first step in determining the zoningregulations that apply to your property is to findyour site on the Official Zoning Maps, availablethrough our Website at:

The Official Zoning Maps were adopted byCouncil on February 28, 2006 and currently onlyrepresent base zone information. In the future, itis intended the maps will also provide overlayzone and Planned District information. Until thenit is recommended you request conformation ofyour zoning using one of the methods listedbelow.

Base zones govern the uses permitted and thedevelopment regulations of the site. Once youhave determined the base zone, refer to LandDevelopment Code Chapter 13, Article 1,Divisions 1-6 for your property developmentregulations. If your zone is in a Planned District,refer to Land Development Code Chapter 10,Article 3, Divisions 1-22, and Chapter 15.

A Planned District is a legally describedgeographic area which has been designated by theCity Council and adopts different developmentcontrols than city-wide base zones.

If your proposed project site is within an overlayzone, it may add special regulations to theregulations of the base zone, and may also affectthe type of permit/approval required. Chapter 13,Article 2, Division 1-1 1 of the Land DevelopmentCode provide information on each of the overlayzones.

HSection 1 Page I

Land Development Manual Proiect Submittal Requirements

Section 1 Guide to the Project Submittal ProcessSection 2 Construction Permits - Structures

Sectiou\ Single Dwelling Unit/Duplex andAccessory StructuresConstruction Permits - Grading and PublicRight-of-Way

Sectiorj-i Development Permits/Approvalscii5 Subdivision ApprovalsSection 6 Policy Approvals

Important Note:Other permits, approvals, and fees may berequired from outside agencies that are not

handled by the City of San Diego Development

Services Department, e.g. school districts, public

utilities, County Health. Contact the appropriate

agency for information on their procedures.

January 2008



Development and Permit Information staff,located on the 3 floor of the DevelopmentServices Center, can assist you in obtaining thezoning information for a particular parcel. Youwill need to provide the project address (ifavailable), legal description or Assessor’s ParcelNumber. You may request zoning informationby:

• Phoning the Development ServicesDepartment general information line at(61 9) 446-5000.

• in person, by visiting Development andPermit Information staff on the third floor ofthe Development Service Center.Appointments are recommended. Call (619)446-5300 for an appointment.

• Fax by completing Part I of the Development

and Permit Information Customer Requestform (DS-57l 5) or Zoning In formation byFax (DS-1801).

2. Determine what uses are allowed on yourproperty.

After you have determined your zoning, refer toMunicipal Code Chapter 13, Article I, Divisions1-6 to find the uses permitted in each zone.Divisions 2-6 contain use regulations tables thatlist the permitted uses for each zone, uses that areallowed with specified limitations, and uses thatrequire a use permit. If your property is locatedwithin an overlay zone, you will also need torefer to Chapter 13, Article 2 to find anysupplemental regulations. If your property is in aPlanned District, refer to Chapter 10, Article 3,Divisions 1-22, and Chapter 15 for permitteduses.

3. Identify regulations governing the size andscale of development.

To find the basic development regulations thatapply to your site, refer to the developmentregulations tables in Municipal Code Chapter 13,Article 1, Divisions 2-6. These regulationsgovern the size and scale of development andinclude requirements for lot size, setbacks,structure height and permitted density. Eachdivision contains a development regulations tablethat lists the basic development regulations foreach base zone. The tables also refer to othersections in the Municipal Code that containadditional regulations that are applicable in thebase zone. If your property is in a Planned Districtrefer to Chapter 10, Article 3. Divisions 1-22, andChapter 15 for property development regulations.

4. Identify other development regulations thatapply to your property.

Once you have found the use and developmentregulations for your base zone and any overlayzones, if applicable, look in Municipal CodeChapter 14 for additional city-wide, generaldevelopment regulations that apply in all zones.All development is subject to the generaldevelopment regulations in Chapter 14, Article 2,whether or not a permit or other approval isrequired. This article includes regulations forgrading, drainage, fences, landscaping, parking,equipment screening, loading areas, outdoorstorage, and signs. If the regulations require thatyou obtain a permit for certain types ofdevelopment, an applicability table will refer youto the appropriate sections within each divisionfor the type of construction or development permitneeded.

5. Determine if your property containsEnvironmentally Sensitive Lands.

Environmentally Sensitive Lands includesensitive biological resources, steep hillsides,sensitive coastal bluffs, coastal beaches, andspecial flood hazard areas. If you are developingproperty that contains Environmentally SensitiveLands, refer to Municipal Code Chapter 14,Article 3, Division I for the supplementalregulations.

Section Page1 2January 2008



If any portion of your property contains

environmentally sensitive lands, you will berequired to provide more information to assist

City staff in determining the type of permit you

will need. Development and Permit Information

staff can assist you in determining if yourproperty is identified on any of the resource

maps, i.e., sensitive vegetation, 25% slopes,

sensitive coastal resources, or special flood

hazard areas. Call (619) 446-5300 for aDevelopment and Permit information

appointment.

if your property contains environmentally

sensitive lands and you do not qualify for

exemption pursuant to Municipal Code Section

143.0110(c), you will need to obtain either a

Neighborhood Development Permit or a Site

Development Permit. To determine which type

of permit you need refer to Table 143-OIA

Applicability of Environmentally Sensitive

Lands Regulations in Municipal Code Section

143.0110.

If you can qualify for an exemption pursuant to

Municipal Code Section 143.0110(c), you will

not be required to obtain either a Neighborhood

or Site Development Permit. If the exemption

you qualify for is 143.0110(c) (1), you will be

required to provide a statement on the site or

grading plan signed by the property owner

acknowledging that “the development activity

will not encroach into the environmentally

sensitive lands during or after construction and

that further development on the property is not

permitted unless the development is reviewed

and approved pursuant to Chapter 14, Article I,

Division I of the Municipal Code.”

6. Determine if your property contains

historical resources.City Staff must determine if your proposed project

site contains one or more elements of a historical

resource and then further if a site-specific survey

is required to properly evaluate the resource(s). AHistorical Resource may be in the form ofbuildings, structures, objects, archaeological sites,

historical districts, historical landscapes, and

traditional cultural properties. Municipal CodeSection 143.0212, together with theEnvironmental Review Process under theCalifornia Environmental Quality Act (CEQA)requires a review for these resources. If yourproject site is identified on the HistoricalResource Sensitivity Maps and involves site

grading or proposes the demolition or external

alteration of a structure that is 45 or more years

old, then your project is subject to this review and

additional submittal information will berequested. To determine the year the structure(s)

were built, see the Records Section, 2nd Floor

Development Services Center, 1222 First Avenue,

or call (619) 446-5200.Historical Resource Determination is made based

on the three steps as follows:

a. Step I - Initial DeterminationDetermination of a need for a site-specificsurvey is made by staff based upon therequired Parcel Information Checklistsubmitted as part of the General Application

Package. if the development area is on theHistorical Resource Sensitivity Maps and isproposing soil excavation, or if the projectproposes external alteration of a structure that

is 45 years or more old, go to Step 2.

Section PageI 3

January 2008



b. Step 2 — More Information Required (if

required by Step 1)Based on photographs of the site and each

building façade, records of building permits

or sewer and water permits, and the Building

Record from the County of San Diego

Assessor’s Office, City staff will determine if

a site specific survey is required. In addition,

if your site involves soil excavation and is on

the Historical Resource Sensitivity Maps then

staff may (if the site is on or directly adjacent

to a known archeological site) require as-

built grading plans or a topographic survey of

the existing site and a photographic site

survey that includes photographs taken from

the project boundaries at four or more

locations to evaluate for impacts toarchaeological resources

c. Step 3 — Site Specific SurveyBased on the information submitted at Step 2

and review of in-house research materials,

City staff will determine if a site-specific

survey is required. When a site-specific

survey is required, it shall be conducted in

such a manner as to determine the presence

or absence of potential historical resources

consistent with Chapter 111 of the Historical

Resources Guidelines of the Land

Development Manual. Additional submittal

requirements may be identified as part of the

site-specific survey process. If potential

historical resources are identified, then the

proposed project is referred to the Historical

resources Board for possible designation.

7, Geologic Hazard Category and

Earthquake Fault Buffer

The Geologic Hazard Category of the site

identifies the type of geotechnical study that may

be required. This study may identify

con siderations that must be included in the

proposed development. Information on the

required geotechnical report for construction

permits can be found in Municipal Code Section

145.0203; the required geotechnical study for

Development Permits, Subdivision Approvals

and Grading Permits is identified in Information

Bulletin 515.

Earthquake Fault Buffers are designated corridors

on either side of known fault lines. These corridor

widths vary from 100 feet from either side of the

fault in Geologic Hazard Zone 12 and 450-800

feet from either side of the fault in GeologicHazard Zone 11. Developments that lie within

these buffer zones are subject to various State and

City regulations that couldjmpact the feasibility

of a proposed project. Information on the faultlines and their associated buffers can be obtained

from the City of San Diego, Seismic Safety Map

published in 1995. These maps are located in the

Development Services Center, Customer Self-

Help Area, 1222 First Avenue, 3rd Floor.

8. Identify Model Code Requirements.

Model Codes are adopted by the City of San

Diego to safeguard life, health, property and

public welfare. The provisions of these codes

apply to the construction, alteration, moving,

removal, demolition, repair, conversion,

maintenance and use of all buildings or structures

in the City of San Diego. The model codes used

by the City of San Diego are: the California

Building Code, California Mechanical Code,

California Plumbing Code, California Fire Code,

California Electrical Code and the State of

California Energy Conservation requirements

(Title 24). Early identification of therequirements during the conceptual design state

may save delays during final construction permit

stages.

Section Pa e.4

January 2008



9. Determine the type of permit/approval

reviewThe Municipal Code establishes four categories

of permit/approval types: Construction Permits,

Development Permits/Approval, SubdivisionApprovals, and Policy Approvals. Beforeproceeding with a Construction permitapplication, it is important that you verify if a

Development Permit, Subdivision Approval, or

Policy Approval is required for your proposeddevelopment. These approvals must be obtained

before a construction permit may be issued.

Refer to the Permit/Approval Table on page II

for a complete listing of all the permit/approval

types identified in the Municipal Code.

• Construction Permits: Construction permitreview is a review of final or constructionplans which include building, grading, andpublic right-of-way permits. The decisionmaker’s review is administrative orministerial — the permit is approved if theregulations are met or denied if theregulations are not met. There is no publichearing or public noticing of these projects.

• Development Permits/Approvals:Development permit review is a review ofarchitectural and site design plans. Thedecision maker must exercise some discretion

in determining whether the proposeddevelopment meets the applicableregulations, standards, and guidelines. Apublic hearing is required for projects subject

to development review where the appropriatedecision maker decides on the project. If aDevelopment Permit/Approval is required, it

must be approved before a ConstructionPermit can be issued.

• Subdivision Approvals: Subdivisionapprovals regulate the division of lands andthe associated design of improvements, andthe acquisition and vacation of public rights-of-way and public easements with the City.Some subdivision approvals are administrativeand do not require a public hearing. Some arediscretionary and require a public hearing.

• Policy Approvals: Policy approvals involverequests to amend existing City policies suchas changing the zoning designation of a site oramending a community plan. These types ofapprovals require a public hearing.

10. Determine the Decision Process.

Applications for permits, maps, and otherapprovals are reviewed through one of the fivedecision processes depicted in the DecisionProcesses and Notices diagram. The zoning,conditions of the site and proposed projectdetermines the process that is followed for eachapplication. For more information on theseprocesses, refer to Municipal Code Chapter 1 1,Article 2. If more than one type of decisionprocess is required for your project, then thedecisions are consolidated (except for ProcessOne decisions) and taken to the highest decision

level (per Municipal Code Section 112.0103).

January 2008

Section PageI 5

53


Project Submittal Re4luirements Guide to Project Submittal Process

Key

Decision Processes and Notices

PROCESS ONE

I Application! j J Staff Decisio]Plans to

Review Approve/DenySubmitted

PROCESS TWO

I Application! • 1 1 I Stall Decij 0 j Appeal Filed 1 • fAppeal 1

Hearing by

Plans I Staff Level to Planning Planning

Submitted Review 4 Approve/Deny Commission Commission

PROCESS THREEAppeal

I Application! j • I J Appeal Filed to Hearing by

Plans StalTLevel Hearing Office Planning Planning

Submitted Review Hearing Commission Commission

PROCESS FOUR

I Application!

fPlanning / I / Appeal Hearing I

Plans Staff Level Commission Appeal Filed to by City

Submitted Review Hearing City Council Council

PROCESS FiVE

______________ _____________ ______________

I Application!

j•

(Planning • I

CommissionPlans Stall Level Recommendati City Council

Submitted Review on Hearing Hearing

• Public Notice to Propeny Owners and Tenants within 300 Feet and to Community Planning Groups

0 “Limited” Notice to Applicant and Anyone Requesting Notice

Typically, projects that fall under Process One,

Two or Three take less time and cost less money

than projects that fall under Process Four or

Process Five. Applicants should be familiar

with thresholds in the development regulations

that determine the decision processes. If you

can design your project to fall under one of the

lower decision processes, it could save

substantial time and money in the review and

approval process.

11. Determine the Review Process.

Most projects are required to be submitted into

plan review. There are some minor projects,

however, that can be reviewed over-the-counter,

by appointment. Some of the more common

minor projects include:

a. Construction permits for single-story,single-dwelling unit additions. (SeeInformation Bulletin 140, “How to Obtain aPermit to Build a Residential Addition” andaccessory structures for single-dwellingunits [carports, patio covers, fences,retaining walls using City of San Diegostandard designs, etc.j)

b. Construction permits for minor interior

remodels for commercial tenantimprovements. (See Information Bulletin147, “How to Obtain Permits forCommercial Tenant Improvements.”)

c. Standard public improvements as identifiedon Information Bulletin 165, “How toObtain a Public Right-of-Way Permit forStandard Public Improvements.”

Section

January 2008


Project Submittal Reuuirements Guide to Project Submittal Process

For clarification on which projects can bereviewed over-the-counter, make anappointment with Development and PermitInformation at (619) 446-5300.

12. Determine the Project SubmittalRequirements and Schedule YourSubmittal Appointment.

Using the information you have gathered to thispoint, refer to the applicable sections of thispublication to determine the forms, documents,and plans that must be submitted for projectreview and approval.

Most approvals found in Sections 3-6 require adeposit account. The deposits shown on feeschedules 502, 503, and 504 are “initial”deposits. Additional deposit(s) will be requiredduring the review process.

It is necessary to evaluate all projects beingsubmitted to ensure that all of the requiredinformation is provided to review the project.This is known as the completeness review. Inmost cases the completeness review can be donewhile you wait. Once it is determined that your

submittal is complete (including correct number

of sets), you can pay your fees or deposits andyour application is fully submitted,

Some projects (as identified in Sections 2-6 of

the Project Submittal Requirements Manual)will need to go through a SubmittedCompleteness Review. The SubmittedCompleteness Review allows staff more time toreview the plans/documents for the requireddetail, customize the number of copies needed,

and set up the project for review. After theSubmitted Completeness Review, staff willnotify the applicant via fax, electronic mail,phone or US Mail whether the application isready to be fully submitted or whetheradditional information or clarification isrequired.

Development approvals (also referred to asdiscretionary) always require a public noticingpackage. For complete information on a publicnoticing package see Information Bulletin 512.“How to Obtain Public Noticing Information.”

Submittal appointments are recommended andcan be made by phoning (619) 446-5300.Please describe your project in detail so that thecorrect type of appointment can be scheduled.

13. What happens next?

Plan ReviewOnce you have successfully submitted yourapplication, plans, documents, etc., and havepaid the required fees or deposits, City staff canbegin their review. Your project will beassigned a Project Manager who will be yoursingle point of contact for any questions youmay have. The Project Manager will ensure thatyour plans are routed to appropriate City stafffor review and comment, The review timecould range anywhere from two to four weeksor longer, depending on the complexity of yourproject.

As each reviewing discipline has completedtheir review, they will route the plans, theirissues (if not approved), and a “SubmittalRequirements” report (if required to resubmit)to our Plan Pick-up area on the third floor of theDevelopment Services Center, The point ofcontact for the project will then be notified byUS Mail, electronic mail, or fax (dependingupon the preferred method of communicationprovided at the time of submittal) that yourplans are ready to be picked up. If you havebeen assigned a Development Project Managerto actively manage your project, they willevaluate the comments received from thevarious reviews and forward you a project statusletter detailing any outstanding issues.

Section Page1 7January 2008



Environmental ReviewAs part of the review process for your project, it

will be determined if your project is subject toenvironmental review. All developmentactivities that are subject to Process Two, Three,Four, or Five Decisions require compliance with

the California Environmental Quality Act(CEQA), i.e., discretionary review triggers

CEQA. The purpose of CEQA is to provide

accurate, objective, timely, and orderlyevaluation and disclosure of potentialenvironmental impacts of proposed projects to

the decision makers (Hearing Officer, Planning

Commission or City Council). The applicationfor a development permit also serves as theapplication for environmental review. First, the

environmental staff will identify if a CEQAexemption can be granted. If not, anenvironmental initial study will be conducted to

identify any potential environmental issues that

may be associated with the project and to

determine what type of environmental document

will need to be prepared. For more information,

please refer to Municipal Code Chapter 12,Article 8, Divisions 1-3,

Infrastructure Requirements Identified

As part of the review process and based on the

scope and details of your project, City staff will

determine the infrastructure improvements (i.e.,

sidewalk, street or alley improvements, bus

stops, pedestrian ramps, etc.) that may berequired for your project. Fronting publicimprovements are required to be brought up to

current City standards or to mitigate impacts of

the new development in accordance withChapter 14, Article 2, Division 6 of theMunicipal Code and Council Policies 600-02,

600-03, 600-04 and 600-10.

Permit IssuanceConstruction permits can be issued once theproject has been signed off by all requiredreview disciplines. You will receive anInspection Record card at the time of permitissuance. The Field Inspector signs this card asthe construction is inspected and approved.

Development permits and other approvalsrequiring a public hearing cannot be issued untilthe hearing body approves the project, all rightsof appeal have been exhausted, and the permit isrecorded in the Office of the County Recorderas set forth in Section 126.0 106 of theMunicipal Code. At this point, you can proceedwith the construction permit stage.

If you have any questions regarding theregulations contained in the Municipal Code,the Land Development Manual, or the Submittal

Requirements Manual, you may contactDevelopment and Permit information by phone

at (619) 446-5000 or you can make anappointment by phoning (619) 446-5300 toobtain the information in person on the thirdfloor of the Development Services Center,1222 First Avenue.

A wide variety of helpful information ondevelopment regulations can also be obtained on

line at the City of San Diego Website:

Development regulations, fee schedules,submittal requirements, and forms are allconveniently located on line.

January 2008


Project Submittal Reuuirements Guide to Project Submittal Process

OPTIONAL PROJECT REVIEWSERVICES

The optional review services below are offeredto save you time in the plan preparation process.These services offer an opportunity for you tosubmit limited information and get preliminaryfeedback from staff regarding a potential projector modification to an already approved project.This can be done prior to formal submittal for arequired approval, allowing you to determinehow you would like to proceed in processingyour project with the City.

Preliminary Review

is consistent and in conformance with thepreviously approved permit. This service isoffered to allow customers to provide only theinformation needed to make a conformancedetermination, without having to go to theexpense of preparing complete constructiondocuments. The process does not include areview for conformance with other Cityregulations, which is performed when anapplication for a construction permit approvalsuch as a building, grading, or publicimprovement permit is made.

Preliminary review helps you obtain the answersthat you need to determine the feasibility ofyour development project and to be successfulin submitting the project for City review.

Preliminary Review is an optional, fee-basedservice. (See Information Bulletin 503 forPreliminary Review Fees.) This service isoffered prior to your formal submittal to theCity for required permits and review. Forcomplete information on the preliminary reviewservice and for the Preliminary ReviewQuestionnaire, see Information Bulletin 513,‘Preliminary Review.”

Substantial Conformance Review

Substantial Conformance Review is a serviceavailable to customers who are proposing tomodify their projects after a discretionary permithas been approved by the City. If the only priordiscretionary action, however, was a tentativemap or vesting tentative map, and a final mapfor the project has been approved, then thisservice is not available.

The goal of substantial conformance review isto determine if the change proposed for a project

Instead of Substantial Conformance Review,customers may choose to include their projectchanges as part of a complete constructionpermit application (building permit, gradingpermit, public improvement permit, etc.). Staffwill review the project change for conformancewith the prior permit as part of the process ofchecking the plans against applicableregulations. If the project changes are notdeemed to be in conformance with thepreviously approved discretionary permit, minorto significant project redesign or an amendmentto the previously approved permit may berequired. The applicant makes the choice to riska full construction permit submittal, or to opt forthe more tailored Substantial ConformanceReview service,

Substantial conformance review in most cases isa deposit-based service. (See lnformationBulletin 503 for Substantial ConformanceReview Fees.) This service is offered prior toyour formal submittal to the City for requiredconstruction permits. For complete informationon Substantial Conformance Review, seeInformation Bulletin 500, “SubstantialConformance Review.”

January 2008

Section Page

LI 9

7


Project Submittal Reouirements Guide to Project Submittal Process

Public Project Assessment

This optional service is intended to assist public

project applicants in determining required

permits and approvals and to provide an

environmental assessment of the project. Public

projects are defined as a project originated by a

City department or lessee or a project located on

City-owned property. Many public projects

require a City Council or City Manager action

that subjects the project to the California

Environmental Quality Act (CEQA) review

process. The Assessment of Public Projects is a

vehicle to assist the applicant in obtaininginformation on any necessary permits andrequired CEQA documentation. For complete

information on the Public Project Assessment

service, see Information Bulletin 510,“Assessment of Public Projects.”

[ection ] Pa

January 2008


Project Submittal Reauirements Guide to Proiect Submittal Process

PROJECT SUBMITTAL REQUIREMENTS

Once you have identified all the applicableregulations and have designed your projectaccordingly, you are ready to prepare yoursubmittal package. The table below provides alisting of all permit/approval types, thecorresponding Municipal Code section that willtell you when that type of permit/approval isrequired, and which sections of this manualcontain the information you will need to submityour project. For example, if you are applyingfor a building permit you would referenceMunicipal Code Section 129.0202 to find outwhen a building permit is required. You wouldthen turn to Section 2 of this manual, titledConstruction Permits — Structures, to find outwhich items you need to submit.

You can use the Submittal Matrices and theMinimum Submittal Requirements Checklists

found in each section to identify the forms,documents, and plans that are required forcertain types of permits and approvals. TheSubmittal Matrices are easy-to-use tools to helpyou quickly identify the number of items youneed to submit to the City. The SubmittalRequirements Checklists provide a detaileddescription of what the content of each of therequired forms, documents, and plans must be.You can also refer to the Information Bulletinsreferenced in the Submittal Matrices thatprovide further information. If you still havequestions regarding why you need to submit acertain item, you can obtain a pre-submittalappointment by phoning (619) 446-5300 orrequest a Preliminary Review. Keep in mindthat the completeness of your submittal packagewill help the reviewing disciplines expedite theprocessing of your application.

Permit/Approval Table

Permit/Approval When is itrequired? (CodeSection)

Decision Level Submittal Manual Section

Amendments to Development Permits 126.0113 Process 2, 3, 4, or 5 Section 4

and Tentative Maps

Building Permit 129.0202 Process 1 Section 2 and Section 2A

Certificate of Compliance 125.02 10 Process I Section 5

Certificate of Correction 125.0140 Process I Section 5

Coastal Development Permit 126.0702 Process 2 or 3 Section 4

Conditional Use Permit 1 26 .0303 Process 3, 4, or 5 Section 4

Dedication of Right-of-Way 144.0203 Process I Section 5

Demolitione’Removal Permit 129.0502 Process I See information Bulletm 710.‘Permit Instructions, Proceduresfor Building Demolition/Removal

Designation of Historic Resource 123.0202 Process 4 (modified) Section 6

Development Agreements 124.0 102 Process 5 (modified) Section 6

Easement Abandonments 125.10 10 Process 5 Section 5

Electrical Permit 129,0302 Process I Section 2

Encroachments within Public Right-of- 129.071 5 Process 1,2 or 4 See informatton Bulletin 576

Way“How to Obtain a Permit for

-Encroachments within the PublicRight-of-Way’

Extension of Time 126.0111 Process 3,4 or 5 Section 4

Section PageI I 11January 2008



Permit/Approval Decision LevelWhen is itrequired? (CodeSection)

1250610

I 29.0602

122.0106

Submittal Manual Section

Process 1 Section 5

Process I Section 3

Process 5 Section 6

Final Map

Grading Permit

Land Use Plan/Local Coastal ProgramAmendment

Limited Uses 1 22 .0302 Process I Section 2

Lot Line Adjustment 125.03 10 Process I Section 5

Map Waiver 125,0120 Process 3 Section 4

Neighborhood Development Permit 126.0402 Process 2 Section 4

Neighborhood Use Permit 126.0203 Process 2 Section 4

Parcel Map 125.0501 Process I Section 5

Parking Lots (Building Permit) 142.0505, Process I Section 2

adding 4 or more parking spaces 142.0402

Planned Development Permit 126.0602 Process 3,4, or 5 Section 4

Planned District Approvals (Site or 126.0402, Process 2 or 3 Section 4

Neighborhood Development Permit) 126.0502,126.0602

Plumbing/Mechanical Permit 129.0402 Process I Section 2

Public Right-ott Way Permit 129.0702 Process I Section 3

Public Right-of-Way Vacation 125 .0010 Process 5 Section 5

Reversion to Acreage 125 .0810 Process 5 Section 5

Rezonings 123 .0102 Process 5 Section 6

Sign Permit 129.0802 Process I See Information Bulletin II I,“General Procedures, SignPlan Check to PermitIssuance.”

Site Development Permit 126,0502 Process 3,4, or 5 Section 4

Site Reconnaissance and Testing 143.01 10 Process I See Information Bulletin 560,“1-low to Obtain a GradingPermit for Site Reconnaissanceand Testing.”

Site Restoration 142-0150 Process I Section 3

Street Name Change Council Policy Process 4 or 5 Section 5600-12 (modified)

Substantial Conformance Review 126.01 12 Process 2 in the See Irifbrmation Bulletin 500,

Coastal Overlay “Substantial Conformance

Zone; Review,”

Process I elsewhere

Subdivision Improvement Agreement 144.0401 Process I Section 3

Temporary Construction Permit 129.0117 Process 1 Section 2

Temporary Use Permit 123.0401 Process 1 Section 2

Tentative Map / Vesting Tentative 125.04 10 Process 3, 4, or 5 Section 4

Map

Variance 126.0802 Process 3 Section 4

Zoning Use Certificate 123 .0302 Process I Section 2

January 2008

Section Page

L 1 12

(o



Hopefully, you will find this information beneficial in processing your project through the Development

Services Department’s review and approval process.

Other Helpful Resources:

City Website: www sandieo.gov

Land Development Code (Chapters 1 Ol 5): http:/!clerkdoc.sannet.gov/Wchsite/mc/mc.html

Development and Permit Information: (619) 446-5000

Appointment Line: (619) 446-5300

Section Pa e

January20081 13


CERTIFICATE OF SERVICE

1, the undersigned, declare under penalty of perjury that I am over the age of eighteen

years and not a party to this action; and that I served the individuals on the service list attached

hereto the following documents:

Original of:

PLAINTIFF’S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF

OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS PURSUANT TO

F. R. CIV. P. 12(b)(6)

Filed July 28, 2008 on the ECF system and served pursuant to General Order No.

Donald H. McGrathOffice of the City AttorneyCriminal Division1200 Third Avenue, Suite 1100San Diego, CA 92101-4100(619) 533-5800(619) 236-6018 Facsimiledmcgrath(sandiego.ov

Attorneys for City of San Diego, DevelopmentServices Department of the City of San Diego,Afsaneh Ahmadi, Kelly Broughton

s/John NadolencoJohn Nadolenco

E-mail: [email protected]

550, with:

Walter Clement Chung, Esq.Office of the City Attorney1200 Third Avenue, Suite 1100San Diego, CA 92101(619) 533-5800(619) 533-5856 Facsimilewchun(sandiego. gov


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CERTIFICATE OF SERVICE; 08 CV 0926 H (WMc)


CERTIFICATE OF SERVICE; 08 CV 0926 H (WMc)28780687

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CERTIFICATE OF SERVICE

I, the undersigned, declare under penalty of perjury that I am over the age of eighteen

years and not a party to this action; and that I served the individuals on the service list attached

hereto the following documents:

Original of:

PLAINTIFF’S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OFOPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

Filed July 28, 2008 on the ECF system and served pursuant to General Order No.

550, with:

Walter Clement Chung, Esq.Office of the City Attorney1200 Third Avenue, Suite 1100San Diego, CA 92101(619) 533-5800(619) 533-5856 [email protected]


Donald H. McGrathOffice of the City AttorneyCriminal Division1200 Third Avenue, Suite 1100San Diego, CA 92101-4100(619) 533-5800(619) 236-6018 [email protected]


_____s/John NadolencoJohn Nadolenco

E-mail: [email protected]


neil dymott frank mcfall 6 & trexler aplc 5 neil i ...1 nayer brown llp john nadolenco (sbn...

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