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Art Pulse deal may fall through

ENCINITAS – A possible deal that would sell the Pacific View Elementary site to the nonprofit organization Art Pulse may be on the verge of collapse if the decision is not put on a City Council agenda before a deadline of Oct. 30 when the organization is slated to give the Encinitas Unified School District a non-refundable deposit worth $300,000. 

Encinitas Unified School District Superintendent Dr. Timothy Baird addressed the Council Wednesday night during the oral communications session following official City business.

Baird had asked the Council last month to consider placing the issue on the agenda to discuss amending the city plan to allow for the building of a proposed art center. The district went so far as to drop its lawsuit against the city to have the property rezoned, in order to move the project forward.

Art Pulse, Baird said, wanted to get the city’s approval before putting up the deposit and expected the item to be placed on the agenda in order to go before the Council.

Including Wednesday’s meeting the Art Pulse item had been left off of the agenda twice; the previous meeting scheduled to take place Oct. 17 was canceled. The city’s reason for cancelling the meeting was that there weren’t enough items to be placed on the agenda.

“They (Council) knew about the deadline,” Baird said after the meeting. “And so Art Pulse has told me today, they’re not going to be able to give us the non-refundable deposit because they’ve not been able to get in front of the City Council,” he added. “When that happens, they breach the contract, the contract falls apart and we have no deal.”

Baird said he’s asked for Art Pulse to honor the deal and go on faith with the City Council, but at this point, they aren’t going to do that.

“And so we’re not going to say, ‘Oh, it doesn’t matter we don’t want your non-refundable deposit, and it’s OK if you breach the contract,’ because that’s not business either,” said Baird. “It could very easily be resolved if the Mayor said, ‘Hey, we’re going to have a special meeting on Friday or Monday.’ Well within their rights; that agenda could’ve been amended. Well within their rights. We do it frequently,” he said.

“Under the Brown Act, the Mayor or majority of the council can call for a special meeting,” said City Attorney Glen Sabine, when Councilwoman Teresa Barth asked on how to arrange such a meeting.

City Manager Gus Vina said that for an item to go on an agenda report it needs to be submitted two Wednesdays out. For an item to be placed on the Oct. 24 agenda, it would have needed to be submitted Oct. 15, he explained.

Vina did say they received court documents on Oct. 16 notifying them that the district’s lawsuit against the city had been dropped. He directed staff that the next available date with Council would be Nov. 14, which was their plan.

Vina said he was not aware of the Oct. 30 deadline, saying that that deadline was between the district and the project applicant.

The district stems to lose the $300,000 in guaranteed money next week and a total of $7.5 million overall should the deal not go through.

Baird said he didn’t know what the city had to gain over not putting this on an agenda. “I frankly think that the meeting that was canceled (Oct. 17) was so that they wouldn’t have to hear the Art Pulse deal. That’s my take on it because they have continuously stonewalled me; they’ve not answered me; they’ve not returned the calls.”

According to Baird, he made phone calls to Vina and Mayor Jerome Stocks to find out why the matter wasn’t being placed on an agenda. Baird said he and Vina did have a phone conversation, which he described as “interesting,” in which Vina told him it was “in the Mayor’s hands.”

Vina confirmed during the meeting that the two had spoken on Oct. 18.

Baird called the Mayor last week, left a message with the secretary and hasn’t heard since, he said. “I’ve sent letters; I’ve sent emails, no response from any of the council members.”

Following the meeting Stocks declined to comment.

“James Bond’s comments at the end (of the meeting) were for me, that, ‘We can’t do anything about this tonight so we’re leaving,’” Baird said.

Council member Bond did leave the meeting following the conclusion of official city business, and before the oral communications took place.

Bond said because of open government, “I can go home and watch the rest of the meeting, which I can’t participate anyway, via the Internet and I shall do so now.” He added that he was retiring in a couple of weeks anyway, “You don’t care what I think.”

Should the deal fall through, and the district already having dropped their lawsuit, the city and the district will have to start the process all over again.

“We will request the zoning change,” Baird said. “And if that gets denied as it has been done every time we’ve attempted to do it before, it will go back through the legal process. So the city spends more money, the district spends more money and we’re back right where we were.”


1 comment

Lynn Marr October 30, 2012 at 12:39 am

Part of an e-mail letter, which I sent last Thursday to Encinitas Council and the City Manager, re saving Pacific View, follows:

EUSD Superintendent Timothy Baird recently had his contract renewed; he probably got a raise to more than his previous $200,000 + per year. When he worked in Ojai, through 2008, he was making over $65,000 per annum less as Superintendent of Ojai Unified School District. Baird became embroiled in controversy when he tried to halt the
development of a skatepark promised to the community at a surplus school site, there. We have no guarantee, in Encinitas, that any money from the sell of our precious public asset, donated 159 years ago, would go to teachers’ salaries. Part of the problem is that school administrators are overpaid!

While in Ojai, through 2008, Baird tried to stop the skatepark, working with developers towards a strip-mall styled “Art Center,” highly discussed, and panned, in local blogs. Fortunately for them, the Ojai community skatepark WAS built after Baird came to EUSD, where he promptly began to work with lawyers to claim the Naylor Act didn’t apply because the land was going to be traded, not leased or sold. This was claimed as recently as the October 2011 press release, only one year ago, when Baird chose to sue the City of Encinitas at taxpayer expense, trying to force rezoning under fear of litigation.

But now, instead, when a sale is sought, the new claim is the Naylor Act doesn’t “count”
because it’s too late! Not true, the time tolls from the time it was originally offered for lease to the City in 2003, after the school was “permanently closed.” According to the Naylor Act, 30% of the surplus school site land, .84 acre must be offered to the City and County at 25% of its appraised value, for open space.

Here are more of Baird’s baits and switches:

1. Request for Proposal (RFP) to all potential non-profits was for a proposal within public/semi-public zoning, switched to a non-profit in partnership with developer John DeWald privately applying for an entirely new zoning classification. This is the biggest switch of all, wanting to change the zoning out of the public domain, thereby privatizing land donated to the public “for the children.”

2. Art Pulse misrepresented a loan as income when applying for a grant from the California Arts Council. The grant was initially awarded, then rescinded when it was discovered that Art Pulse (aka San Diego Fine Arts Council) did not have income other than debt. Art Pulse, through April Game, represented it had “cash on hand” and deep-pocket backers. Two loans have been made, by Mr. Moon, an unknown benefactor.

3. The number of requested “residential lots” is misleading because twinhomes,
not single family residential units,are actually planned.

4. The entire parcel would be changed to a hybrid “mixed use” so that sometime
in the future the land could be redeveloped, privately, to entirely mixed use, akin to Pacific Station, also developed, and now re-sold for short term profit, by DeWald.

EUSD didn’t do it’s homework, in that it didn’t properly “vet” Art Pulse before accepting its proposal. EUSD apparently didn’t care that the non-profit could only “cinch the deal” through partnering with a for-profit developer. Baird’s plan, all along, was probably to facilitate DeWald, who had been “waiting in the wings,” before Baird came to Encinitas from Ojai. This SWITCH from non-profit to short-term profit was made possible due to the Brown Act exemption, which allows for closed session meetings when real property negotiations are being discussed.

But the public feels real estate transactions should be transparent, especially with respect to open and public appraisals when public entities are involved as buyer or seller. EUSD didn’t do it’s homework, either, by getting an independent appraisal within the current zoning. Baird didn’t do his homework in letting non-profits who applied know he intended to ask for a special dispensation for Art Pulse, insisting on creation of a completely new zoning category, heaping pressure on Council, and blame for his own failings, in the name of a manufactured “cut off point,” about which Council WAS NOT PUBLICLY NOTICED!

Baird NEVER should have set up his shaky deal to privatize public land to begin with. He can’t blame Council, for his lack of prudence, his lack of due diligence, nor for EUSD’s wrongly following his lead in failing to honor the intent of the State Legislature as mandated by Education Code, with respect to the Naylor Act. Baird appears to have mixed allegiances, by his record, here, and in Ojai; he seems to favor mixed-use development and his own ambition for short term profit over parks and open space, over maintaining a community asset for the public’s common good.

I’m sure Glenn Park, in Cardiff, could have been developed as mixed-use for maximum short-term profit potential, for a few. But Council knows that the greatest value is not always monetary gain. The land, the open space, our heritage of this community jewel, preserved for future generations, is the highest value.

We could have a true community art center amidst our precious land, this jewel by the sea. Our public asset, which belongs to all of us, should remain in the public domain. EUSD could reopen a more realistic (longer than twenty working days) and more equitable period for non-profits to submit applications for a new RFP, and this time, maintain the integrity of the original plan that the proposals should be for redevelopment within the public/semi-public zoning. Donated land should not be privatized.

Our much loved and recently deceased friend, Bob Nanninga advocated for saving Pacific View and honoring the Naylor Act. Former Mayor and Councilmember Maggie Houlihan, who passed away on 9/16/11, only a year ago, also wanted to keep the zoning public/semi-public; Maggie was certain, as we are, that a community art center, on public land, could be a tremendous benefit to our citizens, and to future generations. Let’s put the greatest common good before short-term profit for a few, and save Pacific View!

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