On June 12, 2020, Save the Park (STP) filed a complaint in the United States District Court for the Southern District of California. This filing challenges the construction in the park only. It does not concern the construction of the classrooms or the improvements in phase one. No one is trying to stop construction outside of the park.
To provide a brief review, the settlement agreement between the District and STP signed on February 26, 2020, included prohibitions against construction work within the park boundary established by the LWCF agreement. Less than 4 weeks later, on March 24, 2020, in violation of the settlement, the District demolished the walking track and baseball backstop in the park without final NPS approval. Another term of the agreement was that the both parties were required to copy the other on all correspondence with the California Department of Parks and Recreation (DPR) and the National Park Service (NPS). The District violated this term as evidenced by its extensive preparation for construction in the park several weeks before notifying STP on April 28, 2020 of its receipt of approval from the NPS.
The settlement specifically provided that either party could challenge an adverse decision by the NPS. The District was fully aware of the bases for STP’s challenge. The District began construction in the park on an accelerated pace before the challenge was resolved. STP sent its objections to the District and offered to meet and confer. The District declined, as was their right. A filing in the US District Court was the only alternative. On June 26, 2020, STP filed a request for a temporary restraining order (TRO) to seek to halt further construction in the park until all issues can be resolved.
The $500,000 payment provided for in the settlement agreement covered legal fees STP incurred in the earlier lawsuit. Here is the exact language of the agreement:
This payment follows California’s “private attorney general” statute, which encourages privately initiated lawsuits to protect the environment and specifically to enforce CEQA by providing for awards of attorneys’ fees to a successful party. The District’s payment covered only a portion of the attorneys’ fees incurred by Save the Park. No one associated with STP benefited from the payment.
Any additional costs the District claims to have experienced beyond its original budget arise from its mismanagement of the project resulting in the decertification of its Environmental Impact Report, the demolition of the school before it had full approvals, and its highly litigious approach to resolving disputes. In fact, the District incurred more than $850,000 in attorneys’ fees without a win in either Superior Court or the State Appellate Court. The District also fails to mention that included in the budget overage is payment to the Bond Manager of an extra $339,000 on top of his original not-to-exceed $408,000 contract, in recognition of his involvement in the litigation and dealing with the park services. (Amended contract) Imagine that - receiving an 83% bonus (courtesy of taxpayers) for making a string of risky choices and compounding them with cover-ups.
We encourage you to review the complaint and other documents to obtain a complete picture of the issues. One of the key points raised in the lawsuit is that the federal regulations for the LWCF expressly require that all reasonable alternatives to encroachment into protected park area be considered before submitting an application for NPS review. The District never evaluated any design modifications at any time in the process to prevent or minimize encroachment into the park. This is confirmed by the sworn testimony by the project architect and the Bond Manager for the District. The NPS was aware of this testimony and still considered the application, contrary the LWCF regulations.
The dispute belongs in federal court because the District accepted funding from and signed a contract with a federal agency, the Department of the Interior, to maintain George Berkich Park for public outdoor recreational use in perpetuity. The agreement is governed by the Land and Water Conservation Fund (LWCF) Act that was first enacted in 1965 and has expended $4.4 billion to state and local governments to fund more than 43,000 projects. Belying the District’s frequent assertion that this dispute is all about an “obscure law” or a “mere technicality,” in rare bipartisan agreement, on June 17, 2020, the U.S. Senate voted overwhelmingly to permanently fund the LWCF. The LWCF is, in fact, a major conservation law with well-established rules and procedures. The overarching theme of STP’s complaint is that the District, the NPS and DPR failed to comply with those rules and procedures.
Due to jurisdictional requirements, this dispute could only be brought in federal court after the NPS issued a final decision on the District’s proposed modification. This matter will be resolved by an independent third party, a federal judge, who will review the actions of the NPS, the DPR, and District and apply the law governing the agreements the District executed with the state and federal governments.
Save the Park and Build the School is surprised and disappointed with the decision by the National Park Service (NPS) to approve the District’s proposed conversion of Berkich Park. The disappointment arises in part from the fact that the NPS failed to observe the LWCFA’s clearly established regulations and guidelines. The surprise is that the approval reverses specific requirements cited by the NPS during the review process without providing the basis for the reversals.
Save the Park has identified numerous defects in the NPS analysis. For a first example, LWCFA rules require CEQA compliance. In November, the Superior Court issued a ruling that the District’s Environmental Impact Report (EIR) was inadequate. In a subsequent hearing in December, the judge confirmed his ruling that the District was not in compliance with CEQA. Settlement of the lawsuit did not erase this ruling -- the District remains non-compliant. The 4th District Court of Appeals denied the District’s petition to set aside the judge’s ruling – it still stands. The NPS was aware of the non-compliance yet still gave its approval.
As a second example, the analysis states that “NPS requires that all practical alternatives to converting public land have been evaluated …” The District first became aware of the LWCFA restrictions on the park in February 2018, however, the overall site plan has remained unaltered since November 2017. This alone evidences a lack of effort to avoid converting public land. Even more damning, however, is that both the architect and the bond manager testified under oath that the District never considered alternatives to converting public land. The NPS was provided with this testimony and still approved the proposal.
Many other conclusions in the NPS analysis are based on assertions that are similarly inaccurate. Documented evidence was ignored. The strict review process required by the LWCFA was not conducted.
The LWCFA’s declared intent is to establish a permanent national recreation estate. This intent can hardly be met when the rules are ignored, and when approval is given for one acre of a four acre public park to be paved over for a school parking lot.
The February settlement agreement between Save the Park and the District contemplates challenges to actions taken by the NPS. Save the Park is currently evaluating its options.
On February 26 2020, after weeks of negotiations commencing on the eve of trial, Save the Park and Build the School (STP) reached a settlement with the Cardiff School District. The settlement allows construction to proceed on the portions of the school that do not encroach on George Berkich Park.
The district has two years to gain approval from NPS to convert park land for school uses. During that time, Save the Park is free to advocate for preservation of the existing park.
For an overview of the dispute and the stakes for our community — the reason STP pushed for accountability — read on…
In December 2019, construction on the Cardiff Elementary school was halted by court order pending resolution of a challenge stemming from the school’s unlawful and unnecessary encroachment onto a sizable portion of George Berkich Park, a treasured community asset.
In issuing the temporary restraining order, the judge noted the likelihood that community members challenging the project would prevail. In November, the judge ruled that, in fact, the environmental analysis for the project was deficient — effectively de-certifying its Environmental Impact Report (EIR) and its right to proceed.
The Cardiff School District has provided the public with misleading information regarding the circumstances that led the judge to order a halt to the school’s construction. What follows is a timeline, supported by documents such as contracts and court rulings, that more thoroughly and precisely portray the series of events that led to the dispute.
The timeline shows the School District knew well in advance of finalizing its designs and self-certifying its EIR that the project contained serious deficiencies in its approval process that could require more time for review, yet they proceeded with demolition and construction.
Early in the design process, the District was alerted to the fact that, in order to encroach upon park land, they were required to seek permission from the federal government, per a 1993 Land and Water Conservation grant agreement.
Though the district had no reason to believe such permission was forthcoming after having been told that it was not likely, they heedlessly forged ahead with plans to encroach on the park prior to obtaining permission.
The District also ignored well supported EIR comments objecting to the encroachment from community members, including one drafted by a land-use attorney at a prestigious law firm that portended an eventual legal challenge to the EIR certification. The District still has not obtained any approvals from the National Park Service.
STP’s objective from the outset was to preserve the public park space that had been permanently established by the 1993 LWCF agreement, and simply asked that the school be constructed without robbing the public of dedicated open space.
June 23, 1993: Land and Water Conservation Fund Grant Agreement Executed
The Cardiff School District and the City of Encinitas entered into a contract with the State Department of Parks and Recreation for a federal Land and Water Conservation Fund grant.
In exchange for grant funding plus additional funding from the City to improve the park, the School District signed a contract obligating them to the following commitments, among others:
that the park “shall be maintained in public outdoor recreation in perpetuity”
that the boundaries of the park shall not be altered without advance written approval from the National Park Service
that the District will comply with applicable federal laws and policies and procedure of the National Park Service Grant in Aid manual
that the District “agrees that a permanent record shall be kept in the participant’s public property records and available for public inspection to the effect that the property described in the scope of the project agreement, and the dated project boundary map made part of the agreement, has been acquired or developed with Land and Water Conservation Fund assistance and the it cannot be converted to other than public outdoor recreation use without the written approval of the Liaison Officer, the Director, and/or the Secretary of the Interior.” (II.F.)
August 14, 1994: District Guarantees Park Availability
In an amendment to its existing Joint Use Agreement with the City of Encinitas, “District guarantees that the recreational facilities referred to as George Berkich Park … will be made available for general public recreational use after school hours and on weekends in perpetuity.”
November 2016: Measure GG Approved by voters
Measure GG was approved by Cardiff voters pursuant to Proposition 39’s reduced threshold for school bond approval. The language of the measure focused on “repairs and renovations” of existing buildings, with only one reference to demolition and new construction.
Site plans and materials published by the District to entice voters showed all renovation work completed within the boundaries of the existing school improvements — with no encroachment on the park. The District continued to define the project in its EIR: “The primary purpose of the Project is to modernize and update the existing school for the benefit of the educational programs and facilities the District provides to its students.”
The District subsequently disclosed (in December 2019) that it had always planned to demolish the existing school buildings and build a new school.
February 6, 2018: District reminded of LWCF Obligations
Community member Eleanor Musick sent an email to District Superintendent Jill Vinson advising of Berkich Park’s federal protection, providing copies of official records and rules, and suggesting that the design be changed at this early stage in the process to avoid the significant legal obstacle.
October 5, 2018: Draft EIR completed
Upon release of the draft Environmental Impact Report (EIR), several members of the community raised objections within the EIR process, noting that the plans fail to comply with the LWCF agreement. . In total, 46 of 62 comments on the EIR specifically object to the District’s plan to construct a building in the park, which is federally designated open space.
November 8, 2018: The District Announces its Schedule, Including Plans to demolish Cardiff Elementary School in June 2019
The District at this time confirmed it did not have the required final approval from National Park Service to encroach on park land.
February 2019: District Self-Certifies the Final EIR
The Final EIR included community members’ comments and challenges to the conversion of the park land for school uses and the inadequacy of the EIR response to the issue. The Final EIR is confirmed by the District without the required prior approval from the National Park Service for conversion of park land to school use. The Final EIR confirms the District has not yet submitted the required documents for review of the proposed conversion by the National Park Service.
The Cardiff School District acted as the “lead agency” in charge of supervising, reviewing and approving the EIR for its own project. The process was legally acceptable, but fraught with conflicts of interest.
The recording of the District’s certification of the FEIR sets the 30-day period for filing a legal challenge.
March 6, 2019: Save the Park and Build the School
(“STPBTS”) registers as a California unincorporated nonprofit association to advance the interests of the 250+ petition signers and Cardiff residents who oppose the District’s plans to expand Cardiff School’s buildings into Berkich Park.
March 8, 2019: Save the Park and Build the School Files a Writ of Mandate and Complaint in Superior Court to Appeal the District’s EIR Certification
The appeal was a restatement of the original comments and complaints, stated during the EIR public comment process.
March 26, 2019: California Department of Parks & Recreation (DPR) Notifies the District that the National Park Service Is Unlikely to Approve Proposed Boundary Changes
National Park Service sent an email to DPR describing multiple concerns about the District’s proposal. Based on this information, the DPR sent an email to the District advising that it is “unlikely that OGALS will recommend the boundary adjustment.” (OGALS is the Office of Grants and Local Services.)
April 18, 2019: Planning Commission Grants School District Coastal Development Permit
The Encinitas Planning Commission’s issuance of a permit allows the School District to proceed with development on land other than George Berkich Park. The permit to build on the park was denied, pending final approval from the National Park Service.
During a City Council hearing on issuance of the permit, Deputy Mayor Jody Hubbard directs the following public statement to the staff, board and consultants for the School District:
“Had the LWCF agreement not been done we wouldn’t be here, and I wouldn’t be weighing in at all about how the school is designed. But, that’s not the case -- there was an agreement, and there was some of the land that was designated in perpetuity for open space....
“What bothers me as a taxpayer is back in February of 2018, why in the heck didn’t the board of directors of the Cardiff School District push this to the City and to the City Council and get it resolved back then before you continued to spend money with the architects moving forward. As somebody who has some experience back in the development world, we would never, ever move forward and continue to spend money until we had clear title to a piece of land and made sure that there would be clear sailing for any building that we were going to do.
“Now, saying all that, my job here today as a council member is to say whether or not you have conformed with the CDP, and you have, because you’re only working on your piece of property that is unencumbered and has nothing to do with the LWCF agreement. But my biggest concern is, what if it doesn’t go your way and you start your construction and you can’t complete it? As a taxpayer, I think that’s incredibly irresponsible, but I will support the motion to deny the appeal, but I have some very big concerns going forward and I hope you don’t put that shovel in the ground until you have a clear path to completion.”
June 14, 2019: School District Posts Notices that the School and Berkich Park will close
Park scheduled to close for two years beginning on June 20, 2019 and that Demolition of Cardiff Elementary School will Commence Soon Thereafter.
June 18, 2019: DPR Notifies District that Closure of the Park for More than Six Months will Cause the Park to be out of Compliance with the LWCF.
July 23, 2019: STPBTS files for Temporary Restraining Order to prohibit construction activity within the Berkich Park boundary without approval by the National Park Service
After the July 15, 2019 issuance of a grading permit by the City and the felling of more than 20 mature trees on the property, including a Torrey pine tree within the Park boundary, STPBTS became concerned that the District would proceed with demolition in the Park without NPS approval and in violation of the law. The TRO was granted on July 24, 2019 to prevent further irreversible damage to the Park.
June to July 2019: 21 Trees Removed
The district cuts down more than twenty mature trees over the objections of numerous Cardiff residents, including Eleanor Musick, for whom the tree removal created a panoramic ocean view.
October 4, 2019: Court Hears STPBTS’s Motion for Preliminary Injunction
STPBTS requests that the District be enjoined from using bond funding for project improvements not authorized by Measure GG.
October 24, 2019: Court Hears Arguments on STPBTS’s Petition to Set Aside EIR Certification
A hearing on STPBTS’s Petition regarding the District’s violation of California Environmental Quality Act (CEQA) is held.
November 18, 2019: Court Issues Judgment in Favor of STPBTS and decertifies the EIR.
After the hearings in October, the court decertified the EIR, invalidating the project entitlements. The School District may not continue with construction until it cures the deficiencies in the EIR.
The Court Also Grants a Preliminary Injunction finding that STPBTS is likely to prevail on its claims of taxpayer waste to be tried on January 17, 2020
December 2, 2019: Hearing Confirms Court Ruling that All Construction Must Stop Due to Deficiencies in the EIR
January 21, 2020: Settlement Talks Between STP and the District commence.
At the courthouse, on the morning that trial was set to begin, the parties begin negotiating a resolution to the dispute.
February 26, 2020: Settlement signed and executed.
STP will continue to advocate that the park be preserved with its existing boundaries.
February 27, 2020: Court of Appeals denies District’s Request to Set Aside Injunction
On February 2, 2020, the District filed a petition for an extraordinary writ of mandate with the 4th District Court of Appeals requesting an immediate stay of the Superior Court’s order enjoining construction of the project. Following consideration by three justices, the petition and request were denied without comment.
THANK YOU FOR YOUR SUPPORT THROUGH THIS PROCESS!
We look forward to seeing the school built while the district honors its obligation to maintain George Berkich Park as true open space for a long time to come.
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.
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