An ex parte hearing was held on Monday, December 2nd after Save the Park and Build the School (STPBTS) and the Cardiff School District both requested clarification of a November 18th ruling. The ruling covers the two claims asserted in Save the Park and Build the School's complaint: non-compliance with CEQA (California Environmental Quality Act) and taxpayer waste. At that hearing, Judge Maas confirmed all aspects of his Nov. 18 ruling, finding that Save the Park was likely to prevail on its taxpayer waste claim that the District had "breached the accountability requirements set forth in Measure GG by constructing improvements not authorized by Measure GG." The original complaint identified several improvements specified in the school reconstruction plans that were not expressly listed in the text of Measure GG as required by Proposition 39, the School Facilities Local Vote Act of 2000. The ruling enjoins the District from proceeding with construction of the identified improvements, which include a food services building, a music room, a makerspace/art lab, an outdoor assembly seating area, and more. Should Save the Park prevail as predicted at trial, the District could be permanently enjoined from building these improvements using Measure GG funds and could be required to disgorge any bond funds that were already expended. The taxpayer waste claim also included use of bond funds to violate the Land and Water Conservation Fund (LWCF) Act with respect to Berkich Park, which was enjoined as well. On the CEQA issue, Judge Maas granted Save the Park's petition to set aside the District's claim of exemptions from CEQA compliance and the certification of its Environmental Impact Report. Among the CEQA findings were that the removal of 37 trees to make way for the project did not support a claim of "Minor Alterations to Land," and that the "project overall would not appear to be a 'minor addition' under any analysis." Since the project is no longer in compliance with environmental requirements, all construction is, by law, required to cease. Contrary to the District's assertions in a press release (dated Nov. 19) the injunction and required work stoppage under CEQA were not limited to the Berkich Park section of the project. At the hearing, Judge Maas clarified the scope of his decision and ordered all construction on the project to stop immediately. As of Dec. 2, the District appears to have complied with the order.
In a second press release issued on the evening of Dec. 2, the District reported that it has filed a motion for reconsideration of the CEQA ruling in view of the conditional approval of its LWCF conversion proposal. However, the Court's findings with respect to CEQA compliance are not dependent on a LWCF boundary adjustment. The District accuses Save the Park of misrepresenting their prior-stated position of only wanting to save the park given that they have now been granted a preliminary injunction covering the entire project. In fact, preserving Berkich Park remains Save the Park's ultimate goal. While Save the Park has made several attempts to engage the District in discussions to resolve the dispute, the District has steadfastly refused to consider any compromise. Save the Park hopes that this latest ruling will provide sufficient incentive for the District to participate in meaningful settlement discussions.
Throughout our entire fight to protect George Berkich Park, the Cardiff School District has tried to argue that although the park is protected by the National Park Service, and although the property received federal funding as a park, it is not a park. Recently discovered letters written by members of the District clearly demonstrate how this “not-a-park” argument was only recently invented in order to make their park-destroying construction plans palatable. In fact the District has been more than happy to call the property a park, and to highlight the park's importance to the community when it was in their interest to do so.
When the District wanted the City of Encinitas to contribute funds to help the District acquire the brick building on the corner of Montgomery and San Elijo, the importance of the park could not be overstated. Below is an excerpt from a letter from now principal Julie Parker to the City:
When the owner of the brick building wanted to re-zone and develop the site, the District opposed this plan by pointing out the negative impacts to George Berkich Park:
Suddenly now when the District wants to develop the property themselves they tell the story that the property is no longer a park and in fact has never been a park. This type of two-faced, untruthful, story-telling should not be acceptable. Why should we as taxpayers tolerate this behavior?
The Cardiff School District's plan involves reducing the active green space by almost 50% while increasing the amount of pavement by over 2000%. This is not in Cardiff's best interest and violates the intentions of the Land and Water Conservation Fund Agreement that promised Berkich Park to remain in perpetuity.
The open space at Berkich Park is protected by a Land and Water Conservation Fund Agreement that promises it will remain a park in perpetuity. The Cardiff School District has proposed a construction project that will violate this Agreement. Instead of keeping construction off the open space, the District is applying to the National Park Service for a boundary adjustment.
Note that in the Proposed 6(f)3 Boundary image that the area that encloses the "new park" will be roughly 25% paved parking lot. The current park is 100% useable for recreational activities and does not include any paved parking area. How is this an equitable swap of open space for parking lot? The LWCF Park Stewardship Guide specifically states that replacement land must be of "equal utility and value subject to National Park Service approval".
Also note that the Proposed Boundary carefully outlines the new school buildings rendering smaller pockets of park land that do not have the same utility as the current large, open space. Compare the Proposed Boundary to the Current Boundary and it is easy to see that the open space at Berkich Park is being destroyed in hasty land grab.
New information has been discovered showing that the controversial plan to build on George Berkich Park violates state and federal park protections.
In 1993, the Cardiff School District, the City of Encinitas and the California State Department of Parks and Recreation entered into an agreement to rehabilitate George Berkich Park. This agreement is part of the Land and Water Conservation Fund (LWCF) which provides federal-state grants for site projects in exchange for a promise that those sites will "remain open for public outdoor recreation use". The sites under protection are "not to be converted to another use without National Park Service approval". Information about compliance responsibilities can be found here.
It has come to our attention that the Cardiff School District created a plan to build on George Berkich Park without realizing that the park land was under LWCF protections and therefore cannot be built upon without first going through a process of formal conversion with the State Department of Parks and Recreations. Failure to follow the conversion process can result in repercussions such as jeopardizing future federal/state grant money for the entire City of Encinitas.
The above Construction Boundary Overlay image shows the LWCF Section 6(f)(3) boundary map (represented by the dotted red line) superimposed on the latests construction plan from the district. This overlay clearly shows that the construction will be in direct violation of the LWCF Agreement. The shaded yellow area shows new construction that will be on what is currently George Berkich Park land. The blue shaded areas show current construction that was built after 1993 in violation of the LWCF Agreement. It could be argued that this construction should be converted back to open space because this land was never explicitly cleared for conversion by the State Department of Parks and Recreation.
The LWCF Agreement ensured that George Berkich Park would remain open park space in perpetuity. Why is the Cardiff School District attempting to take this land away? The very idea of the LWCF Program is to increase parklands especially in areas where open space is particularly at risk. In a densely populated neighborhood such as Cardiff, where land is in high demand, it is critical to hold on to the few remaining acres of open space available to the public. This protection is what the LWCF Agreement was designed to provide.
In the past year, residents have expressed their displeasure with the direction of Measure GG construction plans. These plans have downplayed the importance of open space and have made poor trade-offs such as destroying fields to make larger parking areas and to construct large buildings of marginal utility. But until the LWCF Agreement was discovered, residents had to negotiate with the Bond Implementation Team and the School District on the fuzzy grounds that we just "didn't like the plan". Now things have changed.
This is no longer a debate about design, but rather has become one about conservation. If Cardiff cannot preserve a park that is supposed to be federally protected in perpetuity, what hope do we have for preserving any open space at all? If the few members of the Measure GG planning committee can erase chunks of our beloved park without regard for contractual obligations bounding those very people to protect the land, what kind of community do we live in?
Allowing any protected land to slip away will certainly erode the character of Cardiff and send a message to developers about what residents of Cardiff find important.
This Sign is Required By Law to Be Posted At George Berkich Park
A Photograph of the Current Sign Posted at George Berkich Park
Preventing the School District from removing the protections on George Berkich Park is of the upmost importance. Make your voice heard before it is too late!
For background on Measure GG and the steps the community has already taken to oppose the construction plans, please visit the history section of this website.