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School board drops lawsuit

ENCINITAS — The Encinitas Union school board voted on Oct. 4, to drop a lawsuit against the city stemming from the council’s rejection of the board’s rezoning application last year. 

The suit was put on hold while the board negotiated with Art Pulse, a nonprofit group to purchase the former Pacific View elementary school site. However, when the council refused to entertain the nonprofit group’s request to rezone the property, citing a pending lawsuit by the school board, Enicinitas Unified School District Superintendent Dr. Tim Baird said there was little choice but to drop the suit.

City Council voted 4-0, with Deputy Mayor Kristin Gaspar recusing herself, not to accept the request for a general plan amendment to create a new arts center, mixed use zone at the site.

The council agreed that the request could return after the pending lawsuit was resolved.

Gaspar removed herself from the proceedings because she felt she could not participate “unless and until the lawsuit with the district is resolved.”

“I’m surprised the council used the lawsuit as a reason for denying the Art Pulse a chance at rezoning,” Baird said before the school board vote. “We sent the council a letter promising to drop the suit if it approved the group’s plan to at least begin the rezoning process.

“If we decide to re-file (the suit) at a later time, of course, we can,” Baird added.

John DeWald, a developer working with Art Pulse submitted a letter of intent for a formal general plan amendment. The request sought to change the current public/ semi-public zoning to a new, undefined category called arts center, mixed use.

Formal action on the request would require a public meeting with the applicant and the neighbors and would only come to the council for a vote after a recommendation from Planning Commission, according to Diane Langager of the city’s planning and building department.

Located on Third Street between E and F Streets, the modest school is surrounded by commercial buildings and smaller homes, with a few exceptions. It closed due to declining enrollment in the area in 2003.

While several proposals have been tossed around regarding the future of the site, none have been met with success.

In 2005, an advisory committee was created consisting of various stakeholders.An initial proposal to build a medical complex with office space and condos was met with disapproval by the downtown community.

San Diego-based nonprofit Art Pulse was chosen out of three proposals by the school board in part because the group plans to purchase the site for $7.5 million and has some funds on hand.

The group partnered with DeWald who agreed to pay the $300,000 escrow deposit and an additional $3 million of the total purchase price. In return, DeWald would own part of the land in order to develop up to seven single-family homes.


1 comment

Lynn Marr October 13, 2012 at 3:58 pm

Obviously, there have been some “baiting and switching” going on. Art Pulse was allegedly chosen because it had “some cash on hand,” but the ONLY cash put into escrow so far, $100,000, which is refundable through the so-called “feasibility” period, through October, has been through Pacific Station developer, John DeWald. We are now informed that Art Pulse has been running at a deficit since its inception in 2008? And a significant grant was rescinded last year, as reported in an October San Diego City Beat article, because the California Arts Council found out that a $600,000 loan to Art Pulse had been reported as income.

Another bait and switch was that the EUSD RFP (Request for Proposals) asked non-profits to submit proposals WITHIN EXISTING PUBLIC/SEMI-PUBLIC ZONING. But, in closed session, Art Pulse was able to partner with DeWald, a for short term profit developer in an agreement that relies upon the zoning being CHANGED to an entirely new classification. Well, it’s NOT entirely, new. It’s really just a HYBRID of MIXED USE! It was a bait and switch to put the RFP out for non-profits, but for Art Pulse, instead of raising funds for financing, to partner with a for-profit developer in order to “get the project over” on the City.

But the biggest bait and switch is the request for an amendment to the General and Specific Plans to create a new zoning category. To create an entirely new classification should definitely require a public vote! However it needn’t come to that; Council should “stick to its guns” and tell the private applicant, Art Pulse/DeWald, that it will not direct staff to begin processing an application for a new zoning category. There is nothing in State Law that requires a municipality to amend its General and Specific Plans to appease development interests!

Those of us who oppose rezoning, do support a smaller-scaled COMMUNITY art center, not a monolithic mixed use monstrosity, which would not fit in with the neighborhood, which, with a 300 seat outdoor amphitheater and only 87 planned underground parking spaces could create havoc with neighborhood traffic and parking. So another bait and switch is the mixed use aspect of it. The portion of the land to be sold to DeWald, now claimed to be for seven residential lots, is actually planned to be used for TWINHOMES, so that’s a total of 15 residential units (counting the bogus “caretaker’s residence” in part of the main structure) NOT 7 single family homes. Furthermore, the entire parcel, all 2.84 acres, would be zoned mixed use (art center), so there would be NOTHING to stop redevelopment, in the future, of the entire property to another Pacific Station, as long as one hall or one classroom were designated “for the arts.”

So the twinhome aspect is another bait and switch. I hope our City Council has enough foresight and intelligence to see through all of the marketing and lobbying by Art Pulse, which seems to be its specialty, more so than any history of operating an art center.

Art Pulse’s finances are not what they seemed when they were selected. The proposed zoning is not what it was in the RFP. The residential aspect of the development is unnecessary and is planned for a higher density than was implied or inferred. And galleries could be operated within the current zoning with a major or minor use permit, WITHOUT the City going to the time and expense of pandering to over-development interests by creating an entirely new zoning classification, that would have to go before the Coastal Commission and a full Environmental Impact Report according to the California Environmental Quality Act.

It’s great the lawsuit was dismissed. The truth is, it was no longer applicable, as it was attempting to force the City to rezone the property as residential under another false pretense, that the City had to rezone according to what the zoning was for surrounding property. California Education Code says that if the school district has followed the rules (which it didn’t, in not getting an appraisal of the property when it first leased it to the City of Encinitas from 2003-2005 for a temporary public works yard), and at the time the school was closed down, declaring it surplus, then, if it has offered the land for sale to the County and City and other public entities, then the property shall be re-zoned to make its zoning compatible and consistent with surrounding properties. The fact is, the public/semi-public zoning is compatible and consistent with other properties in the specific plan. Surrounding does not necessarily mean “contiguous,” as Councilmember Maggie Houlihan stressed. The idea of rezoning was denied by the City, through Council, in November of 2010, by unanimous vote, and was again denied in August of 2011, about a month before Maggie’s untimely passing. She wanted to retain Pacific View as a “jewel” of our community. She also wanted an art center, BUT within a public/semi public zoning.

We don’t want to privatize our precious land, donated for public use, “for the children.” We want Pacific View to remain a part of our community’s character, our cultural heritage. Furthermore, we feel that the Naylor Act, also part of the State Education Code, should be honored, so that the land is appraised with its current zoning, and .84 acre is offered to the City (and County) at 25% of its APPRAISED value, for OPEN SPACE!

Pacific View is an irreplaceable asset, and as Councilmember Bond stated in November of 2010, “you don’t sell off public assets.” We should not allow Superintendent Timothy Baird to “put a gun to our heads,” threatening further bogus lawsuits, should he not get his way again. Up until 2008 Baird was Superintendent for the Ojai Unified School District, where he became embroiled in controversy, there, when he attempted to block development of a promised skatepark on a surplus school site. Instead, Baird wanted to develop an “art center/strip mall” in Ojai!

But in 2009, Baird came to Encinitas to replace Superintendent King, with Baird getting over $200,000 per year here, when teachers are being laid off, or more than $65,000 more per year than he was paid in Ojai! Very recently Baird’s contract was renewed, and a meeting was held, at EUSD deciding whether or not to give him yet another raise.

This request for re-zoning is about short term profit and the ambition of a school administrator. Council should direct staff NOT to waste its time and our taxpayer dollars on processing a private application for amending our General and Specific Plan to create a new zoning classification to appease development interests. A community art center is entirely do-able, keeping Pacific View in the public domain. The greatest “bait and switch” of all would be to privatize our public land, threatening a lawsuit when EUSD has never followed the terms of state law in mandating that 30% surplus school sites, or .84 acre of Pacific View, must be offered to the public for open space at 25 cents on the dollar of the appraised value. This bears repeating!

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