Thursday, February 27, 2014

EUSD says Naylor Act doesn't apply to Pacific View; attorney who saved Del Mar Shores disagrees

North Coast Current:
A document released by the school district that was penned by law firm Best Best & Krieger suggests that because the school facility and its playground have been unavailable to the public for a period of more than eight years, they are no longer protected by the act, and this is the legal opinion that the school district will consult moving forward.

“Here, the Pacific View property has not been used for playground, playfield or any other recreational activity for the last eight years,” the legal opinion states. “Accordingly, by the plain language of the Naylor Act, it is inapplicable to the Pacific View property.”

Other observers such as Carl Hilliard aren’t so sure that the legal opinion gives the best view of the law and how it works. Hilliard served as one of two lawyers who worked to keep the Del Mar Shores school property in Del Mar from residential and commercial development in the mid 2000s.

“We invoked the Naylor Act and the school in Del Mar had been closed for more than that period of time,” Hilliard said. “And the Naylor Act applies to playgrounds and allows the city to purchase (a school property) at 25 percent of per market value, but it must contain a playground and if it’s not used as a playground then there’s a right for the school district to repurchase it.
The Naylor Act would require the district to offer 30% of the property to the city at 25% of market value.

28 comments:

  1. Hello WCV-

    I contacted an attorney about filing an injunction to prevent a sale without the EUSD first offering the property to the city under the Naylor. I was quoted a price of $2,000-5,000 to research and file an injunction if the argument has standing.

    I sent a general email to people I know and received a limited response.

    If anyone would like to contribute they can reach me at audet@earthlink.net

    Perhaps another person or group is already moving in this direction.

    Kind regards,
    Andrew Audet

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    1. Andrew, possibly check with Scott Chatfield who has the Save Pacific View website.

      -Mr Green Jeans

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  2. Superintendent Tim Baird conducted a walk through for developers at Pacific View.today at 2 pm. There was an equal number of citizens, about 8 or 10 each. Baird was his usual blustery self. He strongly insisted that no photos of the developers be taken.

    A tour of one classroom was allowed. It looked reasonably good with no water stains on the ceiling from a leaking roof.

    The attendees were told there is minimal asbestos, if any at all, maybe in the floor tiles or the roofing material. Asked a question about the alley being brought up to downtown street standards, he pooh-poohed it by saying that only access to the homes was necessary, ignoring that the city could require any developer to bring the alley to street standards.

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    1. The City and District worked together to nullify the Naylor Act by parking city of Encinitas vehicles on the playing fields for $1 per year: although there is absolutely no paperwork documenting a 'deal', so the Naylor Act may still be applicable. Look at Cathy Regan's NCT Opinion Piece from 2009 concerning the handshake deal. Regan was a Trustee then.

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    2. Do you have a copy of Cathy Regan's NCT opinion piece?

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  3. 5:22- Are you sure that there is no paperwork regarding the use of PV for Encinitas vehicles at $1.00 a year. I knew the City had done this, but I always thought there had to be some legal paperwork. Who would I ask about this, or do you know? Thanks

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  4. There is a November 19, 2003 agenda report requesting authorization to negotiate a lease of PV for $1 per year for three years with an additional two by mutual agreement. It is characterized as an interim shared use, as it noted that EUSD had plans to develop the site in the future. The city was responsible for any site improvements that were necessary. No mention of recreational use. Make of this what you will.

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  5. Who cares... I hope some non profit buys it....

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  6. Looks like Baird is trying to BS his way thru this one by hiring lawyers that give the opinion that he wants. Are Vina and Baird blood brothers? - they operate on the same bluster and arrogant denial of contrary opinion. Unfortunately, Sabine is in their camp; so he is worthless to the interests of the community. Also, there has been recreational use of the property - city workers have been there.

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    1. Coast News Article: https://thecoastnews.com/2013/11/city-moves-ahead-to-plan-shores-site/

      "City moves ahead to plan Shores site"
      By Bianca Kaplanek
      Nov 29, 2013

      ""DEL MAR — In a rare split vote at the Nov. 18 meeting, council agreed to begin preparing a master plan for the Shores property, a 5.3-acre lot on Camino del Mar and Ninth Street the city purchased from Del Mar Union School District in 2008 [late 2007, early 2008, before the real estate bubble burst] for $5.8 million to preserve open space, recreational areas and the private Winston School, which is on the site."

      http://www.utsandiego.com/news/2014/Jan/10/encinitas-district-to-auction-pacific-view/

      "Baird said the district expects to hold a land auction similar to ones recently hosted by the San Diego Unified School District. In 2012, the San Diego district auctioned off its 9.3-acre Barnard Elementary property in Ocean Beach and got $16.5 million."

      Notice the difference in size of the properties? If one divides $16.5M by 9.3 acres, the price paid in 2012 was $1,774,193.55 per acre. Multiply this out by 2.82 acres, which is the size of the PV site, one arrives at just over $5 million for the lot, NOT factoring in the Naylor Act.

      Doing the math for Del Mar Shores 5.83 acre site, one arrives at an even lower per acre amount; for that surplus school site the Naylor Act was "invoked" through attorney Carl Hillard and his associate. But those sections of Education Code ended up not having to be forced on the Del Mar School District, after a lawsuit and a ruling by a judge in a Court of Law. The Del Mar School District was more cooperative.

      Teresa Barth has claimed that the Del Mar Shores deed was restricted, but has offered no evidence of that, through the Staff report, or through citing any authority. She could be correct. But the undisputed facts remain:

      Neither EUSD nor the City abided by the mandates at the time the District determined to lease the property to the City of Encinitas, and allowed the City to pave over the playing fields.

      The time for the applicability of the Naylor Act tolls from the time of the determination to lease or sale, not to when the School District finally declares the permanently closed schoolsite surplus, and offers to sell the property.

      Page 34 May 7, 2009, letter to City (Phil Cotton) from Lean King
      "Although the property Is not subject to the Naylor Act for all the reasons previously specified, an estimated purchase price for public agencies can be calculated using the Naylor Act formula:
      • 30% of the property (.84 acres) @ 25% of the property value $1 million
      • 70% of the property (1.06 acres) @ 100% of the value of the surrounding neighborhood R-15) = $9 million
      • Approximate value of property under the Naylor Act formula - $10 million"

      That letter did not comply with Educational Code requirements, either. It specifically stated that the Naylor Act didn't apply. In using the "Naylor Act formula" no mention was made of any APPRAISED VALUE."

      The only appraisal belatedly provided by the EUSD was based on the extraordinary assumptions that the property was to be leased, not sold, and that the land was to be developed as mixed use residential/office/professional, not as "R15." Furthermore, that 6/6/07 PV appraisal was outdated by the time of the letter, sent nearly two years later, in May of 09, BEFORE the site was declared surplus, in February of 2010, and before Baird was recruited to EUSD, later in 2009.

      In March of 2010, various public agencies were notified, pursuant to Education Code, that the District planned to dispose of the surplus property. No mention was made of the Naylor Act at that time. When subsequently contacted by the City, the District falsely claimed the Naylor Act would no longer apply.

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  7. The EUSD is in breech of the original deed. It's that simple.

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    1. Since there are no restrictions on the deed they aren't in breech. It is that simple.

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    2. Yes nothing but recreational use by city workers, perhaps their laziness will finally have an unplanned benefit.

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    3. Do you mean "an unintended consequence??"

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  8. The con sequence remains at city hall.

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  9. Good one.

    Do you mean the Monty Python Circus beach side?

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  10. I have put in California Public Record Act requests with the City and the school district. The City provided me with PDF copies of three leases, each for one dollar per year.

    The leases were automatically renewable every six months, or every year for up to five years. The first lease was effective from December 1 of 2003, signed by Kerry Miller and Doug DeVore, approximately six months after the school was permanently closed, in June of 2003. When a public school site is permanently closed as a school, when it is offered for lease or for sale, it is to be offered to other local jurisdiction public agencies according to the terms of the Naylor Act.

    The time for the applicability of the Naylor Act should toll from when the school was first offered for lease. Eight years before that time, the grounds were used for playing fields. The lawyers are trying to pull a fast one. Up until and when they filed a lawsuit against the City of Encinitas in October of 2011, they were still putting out press release statements that the land was to be traded, NOT leased or sold, so the Naylor Act didn't apply. This is when the property has been continuously leased.

    Now these District fast talking attorneys are trying to say, "it's too late, nanny, nanny, kiss my fanny!"

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  11. Wow… isn't that surprising?

    you always waste tax payers money with CPRA requests.

    you are the non-environmentalist. Waster!

    Have a good day!

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  12. Interesting story out today about the School Superintendant in Lawndale California reportedly earning $663,000 last year, and getting a previous $900,000 loan on the backs of taxpayers-

    What is TIm Baird getting?

    Why are our EUSD Board members failing us?

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    1. Tim Baird is getting at least $200,000 per year, plus a $6,000 life insurance policy, not counting the value of various other assorted benefits.

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  13. Lynn, you chastise the council for even considering the higher appraisal, but you then turn around and say they need to buy the parcel - which is it?

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    1. It depends on which personality within Lynn you're talking to?

      You know woohoo ?!

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    2. 12:25, the City should be able to buy the parcel for the appraisal price which used LOCAL COMPS, the most current appraisal. I "chastised" (your word, not mine) the City Manager for releasing CONFIDENTIAL information received in a closed session to DEMA. The higher appraisal is irrelevant.

      The City's offer to purchase at $1 Million over the legitimate appraisal by Waldorf, is sufficient. EISD Superintendent Tim Baird, with the compliance of the Board of Trustees, with the exception of Mo Muir, is being disingenuous. He is not providing full disclosure to would be bidders. He revealed closed session information to the press.

      Baird is relying upon an outdated appraisal, that was based on the extraordinary assumption that the property was to be exchanged, not sold, and that it would be rezoned to mixed use, office/commercial/residential, with 14 twin homes, residential R-15 units, and offices, etc.

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    3. You go Lynn! Appreciate your information and desire to educate the public!

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  14. You will remember that in order to build the new Encinitas library, Public Works and the San Dieguito Water District vehicles and staff had to be relocated as they occupied the north end of the library property. The Pacific View property was available for PW and the water district to rent and the library was built in a timely manner. The city partitioned classrooms and created parking for PW vehicles and staff. They stayed on the PV property until the Mossy site on Calle Magdalena was remodeled.

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    1. Yes, all true. But there's a back story here. The city paid the SDWD less than half what the property was worth. Then the city paid a million dollars over the appraised value of the Mossy property, then another $3.5 million to remodel and bring the facility up to ADA standards. Plus the Public Works yard was recently rated in the poorest condition of all city facilities. How can that be?

      Finally the water district, which only covers half the city, was charged an exorbitant amount to move into the ex-Mossy car dealership. All of these costs were picked up by the ratepayers in the water district. This money was funneled into the General Fund to help make the Lease Revenue Bond payments on the Hall property purchase, which to this day has no revenue stream to make the payments. A state Supreme Court decision disallowed this kind of chicanery. Now the city gets the money from the water and sewer districts through "cost allocation," which increases their expenses and permit them to raise fees and rates.

      The whole mess is a great example of city bungling.

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  15. The School District, through Baird, has submitted another bogus "Community Letter," to the public.

    Again, someone who reads the documents provided through the District's link http://ww2.eusd.net/Pages/Pacific-View.aspx will find, among other misleading statements:

    Page 32 (of PDF file)
    “From the beginning, the district has expressed its intent to exchange, not sell, the property at its highest potential value for another property within the boundaries of the Encinitas Union School District that produces a new revenue stream to support the cost of maintaining schools throughout the district. The exchange was pursued under the explicit authorization in the California Education Code.”

    Page 33
    "The Naylor Act, however, only applies when a school site property has been used as a playground, park or other recreational purposes for eight years immediately prior to a school district disposing of a property."

    However, the relevant Education Code, that part of the Naylor Act specifies:

    Section This article shall apply to any schoolsite owned by a school district, which the governing board determines to sell or lease, and with respect to which the following conditions exist:
    (a) Either the whole or a portion of the schoolsite consists of land which is used for school playground, playing field, or other outdoor recreational purposes and open-space land particularly suited for recreational purposes.
    (b) The land described in subdivision (a) has been used for one or more of the purposes specified therein for at least eight years immediately preceding the date of the governing board’s determination to sell or lease the schoolsite.
    ***********
    At least eight years immediately preceding the date of the governing board’s determination to sell or lease the schoolsite, which was established by a lease to the City of Encinitas agreed to by the Board of Trustees and Council, as signed on February 2/04 by Superintendent Doug DeVore and City Mannager 2/2/04, but, according to the lease documents, effective from December 1, 2003, the land was used, in part, for playing fields, playgrounds and other recreational purposes and open space uses.

    The difference is that the District has been misinterpreting the law. The time would toll from when the land was officially offered for lease, and the playing fields were paved over at taxpayers expense, without the Naylor Act being complied with by either the District or the City.

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    1. Sorry, above should state Section 17486:

      "This article shall apply to any schoolsite owned by a school district, which the governing board determines to sell or lease, and with respect to which the following conditions exist: . . ."

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