neil dymott frank mcfall 6 & trexler aplc 5 neil i ...1 nayer brown llp john nadolenco (sbn...
TRANSCRIPT
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
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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 Page 1 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)
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 2 of 77
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
6
7 By: s/John NadolencoJohn Nadolenco
8 Attorneys for Plaintiff BLACKWATER LODGEAND TRAINING CENTER, INC., dba
9 BLACKWATER WORLDWIDE
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
28785900 Plaintiffs Request for Judicial Notice — 08 CV 0926 H (WMC)
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 3 of 77
VlfflhIlX3
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 4 of 77
u. uH- Mx uui pupxP —
\ ausrNascv-OO926-H-WMC Document 21-6PC BOX i22e9
BAN OiBoD CA B22:2eg(51( Br BD rn. MFwww aflo.Qofl
‘Isiness Tax AppflcaUon
ieIephon
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)
I 2ci oo C,ovrry
Sari 0ie90 CA 92154
Tp Aiienxorc
rn-kg ciICSS
Arg 5k.nce Acixi Ollicix Box Numoer Pxrciria Nii Ccix (PMEI
lQ 0006
arauary 1, 2008 15
erei &rnplciyor GeM ikoecion N ricier FEH4t S&ierr Oemxl Ncirrre’ tBEA-4i
rek3C Nicirre (OBOlI
Filed of 84
Partnership
F: Soie Proprietorship E LImited Partnership SCcrporiori
F Husband & Wife Sote (Lmited Liabitty Company F Trust
Corporation
— ._r - \ Y -
Qwne Neme (rrrMxf0aflrker orciorake xerkke(
___, / —
37TE f-&, Z.C.
Non-Profit Cr9.
rA-r-- L-octe L n- C--v
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
El
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
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 5 of 77
qJi11IIIX
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 6 of 77
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)
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 7 of 77
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
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 8 of 77
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
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 9 of 77
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
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 10 of 77
- 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
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 11 of 77
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
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 12 of 77
irniuxi
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 13 of 77
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
‘ 21 Pool Deck Bund)u5fSlcbI
22 VoaI Pre-plusler!L)5IrLPauin Compound
23 DIsabled AccesS.
24 SpecialIncpcclion)a) V
25 Struciarsl Ohscrvntkur Is)
27 Circuit Card
-I
b124252
34
35 Surritury Plumbing
311 Waler Piping
37 Gas Pipin
311 Gnu Prcnstjrc
39 l-)culinIDuci(i)/Vc,rilsl
-III Air Ctanditkriln11lRel’rigemtitm
..a -Ii Enrirtinnientul Air Syrstenrlnlit
42 “HuiIi-Up TublicI or Shower Pnrilu)z
42 Grenso Duct)nl/Hood)u)
-l-lOrcusaTmplnl
45 Storm Wirier System
41,
47
For Gus tic- C/earle Alt-icr irr.s,imr,ilnn d,,JOrn,u,in,rJrcqnirr,neprl,s, en0?
Sl)G .0 C Cumptrrry v Pr-r.jirel 4laraugrmtul ()rrpurrmeru a, (111)1) 2,10-71100.
05-17911 l0unl,ud 04,081
211 Service Equipment
29 Sub-Feed EuipmcnI V
3(1 Cirtuil(nl- Exterior VVV V V
31 CirvulIlsI- Interior
32 Exil llluminojitin System: V
33
APPROVAL 11 (Comli/SiruelI V_1_ II )EkcIrIeaI)
APPItOSAL 11 (Mselirmleul) 4PPRO’AI. II (PIumhls(1)
JOB ADDRESS
5/MpP,E V/h9
DATE INSPECTORTVFE OF INSPECTION
511 Culumnl.sI .6 Sappirvlrl
SI Flour Syritirrn(sl
-___________
s RotrIsystenslsl.2
53 SOar Wall(s)
b HcighI LinrilV
$5 Ukirbled Aeccis
51) Special Inspeclioii(u)
57 Structural Obscrvaritrn(r)
59
ITEMS 59 TIIRU6S TO BE INSPECTED AN!) ArI’IlOVED P111001 TO
INSTALLING INTERIOR nALl_ COVERINGS.
59 Insulnllon- Atiic)il/CcilingIStlSol7ilI.-l
(tO Insialotitrn- FIlsrar(l
S Insulation- Rool7sl
62 I nueltition— Vall(cI/Snntntl Transmissiirn
V
124 (.3 Fc,rcstrultnn l000rDVindoir Glicztnglz
(14 Liglrtin5-Islantlitlury Measures
(iS 1.tirnpl)ancc Reprullsl ‘ V
66 DrywallV V
1)7 ExterIor Lulls
SR Interior Lulls /llneker (SoordV V
6 09 Suspcrtdurd Cirilin5 Syecm
70 V
REQUESTS FOR SITE I)EVELOP7SIENT INSPECTIONS AS NOTE))
Si Luridseupe- PseinO. 111511)627-3331tJ
72 Ligttlin- 0116)24 impurel- lR38) 627-333)1
73 MiulytIintt Mtrnitttriit0— 1)1511) 627-33011
REQUESTS FOR FIRE DEPARTMENT INSPECTIONS )6 9) 344-5440
74 AIun’rrr(sl- Rtruu4h
70 Alarm(s)- Final V
b 70 Extinnluhin Synlcn(1sIV
77 Hazardous MaterIal(s)
7(4 Sprinkler(s)-Rough
79 Spr)nklcr(s)-F)noi
01) Undcrrounul- Flush
SI Utudcrgrc’nnd- Hyrim
02 Undcr0rrrtnttl- Visituul24
1)35-
114
CALl. FOIl FINAl. lNSPLIIUN WlltiN -ILL AlI(UVlIll5 It
rEJitNNG TO Tills PniPrT HAVE
to11(10
£24a-.57z.2
93 DisxbieuiAecess
il-i Special lnxp/Struct Ohs/FiraI Rcpar5cl
95 Suruciurul
96 Approsed to Occupy J /97 Certl(lente xl Ducupuricy 3 /
411 tisieritur OVal) Ct,ttsinjciirm
39 Interior Wull Cratsirsiction
1111 Fire Drpt/)la, Mnt-Tuitiki-lSlOl 533-441111
147 Lantisoupe/M11i0,ttiun - 1115111627-3331
ill) Eurr Pu)x)ic Iurtprutcnreats’ill5Rl62l-32011
119 I)lauricsl
9(1 A Cfilenhirug/Itrlrigerouiatu
91 Runc llisuutl)slfVcnhls)
92 I’)uunbinWous
I
.,/o:74//Cej-
.T.it C±n 0.5 O..
.CITY OF SAN L3IEQO DEVELOPMENT SERViCES DEPT
DIVISION OP BUILDING AND SAFETY
911111 I{IEXIEI4AVEN CTSAN DlEC(O-CALIFC)RNIA 92(23
INSPECTION RECORD1” 1
IN9PECTIOIsS It%Sl rrraoss MUST III! cIIrouLLu
1r1(858) 58177J31 atOM? OIl AM1O 19 lIII 1)1a LVEWI I ljEORTOVtLI 13k MADE tO RESPOND1(0 TNSPECTIDN
CONTRACTORJOWNER APPROVAL DATE
TS .4 3- / ‘f-.%O’OIIK DESCRIPTION
OCCUPANCY CONST TYPE PROJECTS
0! TAIN INSPECTION APPROVAL OF ILL OVORK THAT WILl. BE
err Con rflnsI VIEOV fly dub 4 rC ri s,tiiISir ii
EX.U62
7rSEE REVERSE SIDE FOR IMPORTA,NT I1FORMATION
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 14 of 77
TYPE OF lNSPECTlO DATE INSIIcCTDR
Scrvr Scrricc
2 UrrcLwirlcr ‘nIrt
3 Surlilurv Ponibjn,j Under HuiIriin5
4 Wow, Service
5 Wuler Pipin5 Under RukIiri
Ii 4, Gm rrdrn5 ElecIrink Syriirnrr
7 Ekeirienl Oni,idc Of IlirrIdiop
41 Eliivirivul Under 3uildjrr41
i( Ono Pipin41’Prelnure
III Siono OVoler Svsrcnr
I34CIIORS, l4SERTS. & 14 NFOl4CItOIE4T TO RE ACCUftATEL
S’DURED 134 PLACE AT TIME OF FOIJNI)ATION SPLCTI.
12 I’ihn( I’ Cniiiriii nil Ilie.
(3 Foiriinj(nI
1.1 F,runduiiun 4’oiIi nI
I) Grode Seorrdnl
10 SlaIrinI
in (7 Mnwnrs Prc-roni— Ldi I_ UP 2
(0 ‘SoIl f3mnirriic SysleirrIs)
(‘I Puirlie IflrliroVerflCrlin- Form Sm
211 P.il Shell Ilondiri5lSkel
21 Pool Deck f1.ir1/Sirnr,I
22 luil Prn-plnnter!Li5lii I’r’lliir41 Crrirrçriorrd
23 Dinobled Aceesr
2-i SpecIal Iri5peciiiin(8I
25 Srruciriral Oirnernulirrr, ml
c
27 Lirenil lord
20 Serrrec Eqoipnrerrr
2’) Solo—Feed I!qmpinenl
MI Circirilln I— Ikieri,rr
II LIrcuirInI— Iirlurior
52 Esil lIIr,nrirniiiiiii Syniu,n
Ii
34
U
4-U
10
35 Sirirlinry I’IuinIriii
.14 \V,,ier ‘P’F
(7 1 ii, l’ipin0
3M C his l’rcoeirc
4/-t — —
n. 4(1 Air (_,,,r,Ii,,i,1rr0/ItcIii5er,,l,,ir,
,j 4 I Iiirvirrnnircninl Air Syrlmul nI
42 I)i1III_Llp leIqo I ri Slr,nrcr (‘inilol0
43 Ihmrse D,reiIoI’lInnIi,I
-14 (1,,,,., r,prl
‘ 45 Siirnir 0\’innr Sysleur
-
Fur (3,, Or f,k,rric (bier InswII,,rj,rr, irrJnrirnsflnri/rqr ircirrc,rv . nil!
£ (r,nju,,i 41 I’rirjrir Il.iiirrperrr,rii ILijiriiri.rii or Iii Ill 2.01— ‘ElI-I,
1)011041 IRoonoil (14(081
. ..I
CITY OF SAN DIEGO DEVELOPMENT SiiIl\’ICLiS DEPT .1 ‘il1 :Iiy;:sIl;1r]iYl71o—
DIVISION UI UUILDINC AND SAfFT’r I rj t r (h ]nI ‘ I
)(r(II RIDGrHA VON CT SAN DII UO{ ALII-ORNI 0 1 I I 1r
_1rj 111(riIUcit I
0 —
LJ—
r’i
CONTRACTOI4JOWNILR APPROVAl. I)ATE
WORI. DESCRIPTION
OCCUPANCY CONST TYPE )‘ROJECT SI
SEQUENCE OF APPROVAl, OF WORK (IN THIS PROJECT IF
TIlE RESPONSIBILITY OF THE CONTII,oCrOI8 (SIC OWNER
— APPROVED I’LANS bIUS’r liE 031.1014 (‘lOR ILL INFECTIONS
— 050/FIRE INSPECTORS O,VL FF0 SIGN Tills 410111),
EACH STAGE OF WORK ShALL HE I.Efl ENPOSI2I) FOCI
INSPECT)” • PPl(OVO[) BEFORE COOPIIING,
O4OLC0ü0i1)141S(11ll1IUflh1%50
iPI’ROVAL SI (Crrnrh/SIraLelI APPROVAL IILIecIrlcoIi
APPICO\’AL 0 (SIceIrLorlerill APPROVAL SI (PlrrnlrInEI
3949e’
TVI’E 01’ IrI’ECTION
48 lisierior Will Lunnirucil,rrr
INSPECTOR
0
DATE
40 liner’s, Woll L’onslrocii,ro
511 l’olonrrrlsl ‘h Supponlol
_ SI I’I,r,rt SvrIcrnlr,I
irrivnwmo
53 Shenc WoIllo)
4- V
IIohr Lirrol
55 Di,ohkd Accens“
50 Specinl livpcelisnIsI
37 Srm,,cr,,, 1 Ulrsero’,,ii,,rrI ol
fl ES 59THRU TO HE INSI4A Nfl kOL) ii P
00701 I INC. INTERIOR ‘A OLL Coo rIIINc,
50 Inonlnlirrn- AlIieisl.’CeilinSIloIlSornIlnI
0(1 IrrluIOiion— Flrinri.IC
0 I Inorloiirrn— RnrrfRI
1,2 lirorrlnirron— OV,iIII,I’So,irnj Trnn,i,risiiin
1,3 Fc,,esin,iir,,, I Oonm/’A’in,Ir’iv Glileinill
10 LidIrilnO- Mnrrdoiorv Meunure,,
05 Cinrrplinrrce ILepsrrInI
(40 I)rywull
4,7 Esierior Lollr
1,41 Interior Loll, lEnder Ilirurri
IrE Snnpendsrl Cdilirri! Synieni
711
t1QUESTS l’OIl SITE ILEO’ILLOIOIILNT INNI’ECTIONS OS 34(1110)
71 Lnirdcnpc I’iil’irrLl 141381 1,27-333 I10
72 I_I411i1i,r4(-OlVl•i InrIrndl. (0514) ir27.333 I
73 Mili41irlirrn MoIiii,rrirW— 1145411 027—334,11
Rr.)UESTS ‘OIl FIRE IOEPAI4TOIENT INSPECTIONS (1, ‘II 440.1444(1
74 A hrrnrln I- Rii1i
75 AlnnriIr- Firrol
71r lhniin41’risIiiii SyieinIi-I
. 77 Flocnmdrnn, hInLCri,,II%(
714 SpririkIeri ol- I)oul,
7’) Sprinklerlnl- Finol
4111 UinlcrntiiiruI— (‘lush
II I lJnuJe[41muunioi. I lyiliui0)0 4(2 lllrdor41rur,Irrd— \‘iriiIirlCL)
43i0,
414
CALl. (‘III) iINSl_ INSI’E( C ION 0VIlIf4 ILL Ol’lIOiI’IIIA’I’I/ IFEOli,
4,4 l1’I.OINlNlll(I’Ill(SI’IC(IIEC’I lOOK lIFER ,Ol’PI800EH_
85 (‘lie lnlroeii,,iu - iIul’l I 440-544(1 —
411, Ii,,, ILdIrI-I Iii, klnl—’Iiii,koIi’III 433_.(—ll8l
1(7 L,041Io-,Irelicliiil,nIi,uur V I 83141 1,271.1.11
11% hin, I’iilrlie IuuupriuvniuiI—i450 11,27—321411
ill I:lo,,iri,.’,iI
‘LII SIll In1rIiii1(/I4cl’r0erorlurrn
nnpc I Iiii’uIIOI’r’eiIIIo I —
‘(2 IIuiuiIrni’I i,is ——
z’ 3 I(,siil,Iesl Aeeen.CL.
‘(4 Specinl lirrqriS(roucr I ilo-ilniol Ilc(suilI oh
‘IS SIui,cI,,rn,I
115134 INSPECTION SF1110 VA I. LII’ ILL WOIIK’F liAr WI LI liii,er’.,oi,r) FROM VIEW liv SURFACE C( O’EIlING S
/
)/
EX.U63
‘II. Apprr’ueuI 0’ i Ilciu(rn’- / 4
‘17 rein Ileruid 01’ lice,qn,rrcy 1I Q/II
SEE REVERSE SIDE FOR IMPORTA,”JT UUFORM’47J2N
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 15 of 77
UlfflIllX3
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 16 of 77
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
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 17 of 77
This Page Left Intentionally Blank
1-
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 18 of 77
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-
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 19 of 77
This Page Left Intentionally Blank
(2
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 20 of 77
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.
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 21 of 77
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
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 22 of 77
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
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 23 of 77
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
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 24 of 77
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
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 25 of 77
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
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 26 of 77
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
CITVOFSANDIEGOc,wc,io ç
usiriass Tax Appitcation
rEZSale Propnelor. nip mliii i’inn,,i%hiA
HiAni1 & Z Limileil I o5iip Conipoiiy- -
NonP.e4’i
(—)
UStftO$ EciiCphop nd Addr$n(orniaton — Hne,. J3 odB.e ,,7
I ,i€i .fre,i.w in ii .ew& & tn.i — InS $ ..Sa .-. A_s 6*1
(_)
RAAI EiIiO?$lil OO in5 $SZII
PiOIn,scniiJSCinfll:eiTeOn#ofl4 $$all
Mali II 6*66* iLola-in
4416*iw3.6lr6*i4vO Aeci Sppr,e 55)
Bu.ne Aelislity typ
4QntvilLna - I
nimiS) $oiiA* (ii -liii
1 ,6*apieIeI*in ArM 0101 air *r-9)
CrnsIr&;c5or 03) h*Iri,n$i.on 5AY6*cIii )5$)Ma olac ieir3’ 3$) rn,,.in nir Ii S.flhiCfi 6*U’i
0*1016610 oc6cwnO. 6 04400 loin
5L cki.otaz- w 1] Iuct oair.*r y.r tnirzig torhnr led l6*iLeo N$3My
6
nockns;m- haa 6*i)rated with ho d Stam0 Novy t o
Ca Ito h..p $eac--lca-y OCc l6M0.i ))k 6.. 11J
000110 C01.;%o4I A6..$anc. $53)
AiInfEnIflrui;nm.oiIRen,ei$,m $3 1$
AtIr01110001i11$a1/6*0c11$150elCen $73)
Øra, Somici $51)
5b1A P.13-,I’Mua:,c. 02:
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 27 of 77
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
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 28 of 77
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
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 29 of 77
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
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 30 of 77
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-
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 31 of 77
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
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 32 of 77
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
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 33 of 77
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.
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 34 of 77
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
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 35 of 77
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.
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 36 of 77
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
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 37 of 77
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
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 38 of 77
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
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 39 of 77
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
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 40 of 77
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
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 41 of 77
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
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 42 of 77
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.”
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 43 of 77
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).”
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 44 of 77
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’
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 45 of 77
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
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 46 of 77
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
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 47 of 77
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).
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 48 of 77
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
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 49 of 77
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
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 50 of 77
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+
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 51 of 77
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
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 52 of 77
t3 C C t C C,,
Cr) e C p3 Ct
-4 ft p3 C p3
Ct
ft 1 Tj
p3 C
n 9
S
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 53 of 77
tr C C -t t C 0 Ct
0
ft
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 54 of 77
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
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 55 of 77
Page 2Mr. 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
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 56 of 77
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—,
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 57 of 77
‘JlfflhIlX3
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 58 of 77
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
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 59 of 77
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
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 60 of 77
Project Submittal Requirements Guide to Project Submittal Process
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
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 61 of 77
Project Submittal Requirements Guide to Project Submittal Process
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
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 62 of 77
Project Submittal Requirements Guide to Project Submittal Process
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
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 63 of 77
Project Submittal Requirements Guide to Project Submittal Process
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
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 64 of 77
Project Submittal Requirements Guide to Project Submittal Process
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
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 65 of 77
Project Submittal Requirements Guide to Project Submittal Process
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
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 66 of 77
Project Submittal Requirements Guide to Project Submittal Process
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
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 67 of 77
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
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 68 of 77
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
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 69 of 77
Project Submittal Requirements Guide to Project Submittal Process
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
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 70 of 77
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
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 71 of 77
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
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 72 of 77
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
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 73 of 77
Project Submittal Requirements Guide to Project Submittal Process
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
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 74 of 77
Project Submittal Requirements Guide to Project Submittal Process
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
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 75 of 77
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
Attorneys for City of San Diego, DevelopmentServices Department of the City of San Diego,Afsaneh Ahmadi, Kelly Broughton
I
2
3
4
5
6
7
8
9
10
ii
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
28780687
CERTIFICATE OF SERVICE; 08 CV 0926 H (WMc)
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 76 of 77
CERTIFICATE OF SERVICE; 08 CV 0926 H (WMc)28780687
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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]
Attorneys for City of San Diego, DevelopmentServices Department of the City of San Diego,Afsaneh Ahmadi, Kelly Broughton
Donald H. McGrathOffice of the City AttorneyCriminal Division1200 Third Avenue, Suite 1100San Diego, CA 92101-4100(619) 533-5800(619) 236-6018 [email protected]
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]
Case 3:08-cv-00926-H-WMC Document 46 Filed 07/28/2008 Page 77 of 77