A blogger’s life can be tough. Besides having to sustain a full time job to feed and house the family, one often has to spend tens of minutes on the phone and hours sifting through public documents, often crammed into a corner of the city clerks waiting room, in order to find out what they don’t necessarily want you to know. By they, I mean of course, our transparent city government. Often, what we find, is so disgusting we wish we had let it be.
Take for instance, the recent court case between the city of Tustin and Tustin Unified School District. I spent a few days attempting to chase down a rumor that I had heard from one of our readers. After multiple calls and emails to the city, the district and a few of my reliable contacts, I finally procured a copy of the Proposed Ruling, filed with the court on June 27th. A Proposed Ruling is tantamount to a judgment and, in the case of this one, a judgment has been ordered to be written.
To bring you up to speed, we wrote earlier that the city has spent $810,000 on the two lawsuits that were pending between the city and school district. The original lawsuit that TUSD was forced to file to protect themselves from the city’s (read Jerry Amante’s) push to stop construction at various school sites, involved grading permits and whether the school district is required to obtain permits from the city before beginning construction. The City maintains they are responsible for storm water runoff, among other things, and could be fined if the School District did not properly grade the sites before beginning construction. The District maintains they answer only to the state and, while they have previously cleared plans with the city, it was as a courtesy, not as a legal requirement. That lawsuit is scheduled to be heard in Orange County Superior Court later this month.
The second lawsuit was filed in August of last year by the city of Tustin against TUSD in retaliation for temporarily closing Hillview and Sycamore Schools and moving their students, along with some administrative staff from the District Headquarters, to the new Heritage School on the old Tustin Marine Air Base property. There were outcries of foul play by the city, who, in meetings with Columbus Square residents, said the District reneged on their promise to open Heritage Elementary School for its intended use. They claimed there was no traffic study or environmental review before the change was made. Nearly every argument the City made was based on California Environmental Quality Act issues. The claimed issues included higher traffic in the area and degradation of air quality, noise, hydrology and a slew of other items. In fact, it seemed the city’s attorneys threw in everything except the kitchen sink.
From the Proposed Ruling:
The City further argues the alleged activities will have significant adverse impacts on the environment including traffic, air quality, noise, hydrology, water quality, hazardous waste, and incompatibility with the adopted land use plans. The City argues that despite the impacts, the Discrict failed to perform any CEQA review. The City Alleges that the activities are not exempt, and even if the District argues that they were exempt, there are applicable exceptions.
OK, how did the city decide the proposed land use was different from the intended land use? Weren’t both uses as schools? And, it should be noted that TUSD fully complied with all CEQA and EIR requirements prior to building Heritage. In fact, the original reports would have indicated much higher traffic in the area than would have been seen with the school being used temporarily to house other students as the school capacity is over 600 (yeah, kids don’t drive, but their parents do).
But there is another facet to this story.
The Good ‘ol Boys Get Out Their White Sheets and Pointy Caps
According to court filings submitted to the Orange County Superior Court before the change of venue, the City also took the provocative stance of saying that, by not opening Heritage for its intended
purpose, the District was forcing students to go to overcrowded schools and inferring these schools were somehow substandard because they serve predominantly minority students.
Elementary school age children who live in the vicinity of the school, including children living in the transitional housing provided at The Village of Hope and the Tustin Family Campus, to date, have been forced to attend overcrowded elementary school in other neighborhoods further away from their homes. But for the Project, those students would be able to attend class at the neighborhood elementary school planned, paid for, and built for their use. These overcrowded elementary schools include W.R. Nelson Elementary, Jeane Thorman Elementary, and Benjamin Beswick Elemenatary. These schools serve predominately minority populations.
Yes, you heard that right. The City said, “We don’t want our kids mingling with the minority riff-raff in those substandard, overcrowded schools. And, while it may not be a far stretch for Amante and his black ops guy, Mayor Nielsen to say something like that (they are Republicans, after all), it is amazing that Al Murray and Beckie Gomez would simply stand by and let this become part of the public record and a significant reason why the City opposed the transfer of students to Hillview. So, now you know just how much Tustin loves their schools.
When Tustin School Board member Lynn Davis was contacted about this he said, “This is completely outrageous and immoral. How could anyone calling themselves a ‘public servant’ of any kind allow such a thing to stand for one day? In stating in effect that schools ‘serving predominantly minority populations’ are not worth attending, they are in fact denigrating nearly every school within the City of Tustin.” We agree. Where was the thinking during closed session where these documents had to have been checked by the councilmembers? Were they too busy looking at their iPads to notice the biased wording of these documents?
Another interesting fact is, a copy of the Petition for Writ of Mandate was served on the TUSD Clerk of the Board on August 12, 2011, the very same day Doug Holland resigned as Tustin City Attorney. Could it have been that he could not dissuade the Council from using such inflammatory language in a public document? At least one person’s conscience may have been working.
For their part, the District took the high road and apparently ignored this issue. They said that, although the specific use had changed, they were within their rights to do so. The use change was brought about by necessity and convenience. It is no secret the Heritage School property was a gift from the Federal Government to be used as a school. At a time when construction was supposed to start, the county was already mired in deep depression and it was not likely there would be enough students to fill the school. Still, the District knew the school had to be built or the Feds would recover the property. It was unfeasible to open the school for its original intended purpose and that is why they chose the route they did. It was a way to keep the buildings in use until such a time as Heritage could be opened as it was intended, an elementary school to serve the families of Columbus Square and surrounding tracts. And the District, in all of its pleadings, covered all its bases.
In its discussion and reasoning for its judgment, the court found that the District satisfied all CEQA requirements through the Administrative Review which contained substantial evidence concerning the basis for exemption:
The AR contains substantial evidence concerning the basis for the exemption. The Notice of Exemption provides a factual description of the Project, and the reasons why it is exempt. (AR 179-182). For instance, the NOE states the temporary closing of the Hillview High School campus and the Sycamore High School/Tustin Adult School campus and the temporary transfer and relocation of students from those facilities to existing classroom space at Heritage Elementary School are statutorily exempt under CEQA section 21080.18 and qualify for a Class 14 categorical exemption under CEQA Guidelines section 15314 because the relocation of approximately 240 students from these two facilities to Heritage Elementary will not increase the original student capacity at Heritage by more than 25% or ten classrooms…”
Further, once the District properly concludes that the Class 14 exemption and/or other enumerated exemptions apply, “the burden shifts to the party challenging the exemption to show that the project is not exempt because it falls within one of the exceptions listed in CEQA guidelines.
The ruling goes on to say the City had merely concluded that exceptions would apply but it failed to present what the court said was “substantial evidence showing a reasonable possibility of adverse environmental impact sufficient to remove the exemptions. That was pretty plain and simple. The City, meaning then Mayor, Jerry Amante, went off half-cocked and decided to sue TUSD without any thought toward whether the city actually had a case. And, while doing so, they spent a good chunk of that $810,000 in legal fees on another Amante Folly.
The School District attorneys have been directed to prepare the Proposed Judgment that will close out this portion of the saga. Hopefully, cooler heads (Jeff Parker, this is where you come in) will prevail and no one will do anything stupid like appeal this mess. In fact, what the entire City Council should be doing in one of their near future closed sessions, is to step back from the table, take a deep breath and possibly work toward a resolution with the remaining case. With the court clearly siding with the District and the City Attorney’s shabby legal research, this should be number one on their agenda.
Oh, and maybe they should think about publicly apologizing to every minority family whose kids attend school in the Tustin Unified School District.