Cardiff School District faces second lawsuit from Save the Park group

Construction continues on the Cardiff School rebuild.

The group Save the Park and Build the School has filed a second lawsuit against the Cardiff School District over its rebuild of Cardiff School.

The new federal lawsuit filed June 12 names the National Park Service (NPS), California Department of Parks and Recreation and the Cardiff School District as defendants as it seeks to undo the NPS approval of the district’s boundary adjustment for the project, restore George Berkich Park to its prior state before the rebuild project began and immediately reopen the park for recreational use.

According to a release, the district is still evaluating the lawsuit and its options for responding and remains committed to the completion of the project for the benefit of Cardiff students and the community. An additional temporary restraining order filed by the group last week to halt construction was denied on June 29.

“We are frustrated that once again the Cardiff School rebuild is being challenged by the small group of neighbors who appear to be on a never-ending quest to stop this project and force the district into altering the plans for the school which were designed with student safety at the forefront,” said Superintendent Jill Vinson. “They have never shown a willingness to compromise regarding the school’s design. The district made every effort to find a middle ground during the design phase by modifying the site plan several times to address their concerns, yet it still wasn’t enough to satisfy their narrow personal interests.”

According to the district, the lawsuit has the potential to impact the school’s opening this fall and add more legal expenses to the $4 million they have already expended due to a three-month halt in construction and legal fees incurred defending the original lawsuit. That lawsuit, over California Environmental Quality Act (CEQA) violations and taxpayer waste, was settled in March and included a $500,000 payment to Save the Park in exchange for a dismissal of all claims against Cardiff and allowing construction to resume. A condition of the settlement was Save the Park’s right to challenge any NPS approval of the proposed boundary adjustment, which was still pending at the time.

The district and school parents have expressed their disappointment that the legal issues continue—the parent group Build the School has started an online petition with 1,384 signatures demanding Save the Park drop its second lawsuit.

“The motivation of the Save the Park lawsuit against the Cardiff community’s children is totally transparent: greed. This provides families in Cardiff the dubious opportunity of providing our children an example of what an egregious lack of character looks like,” said parent Spencer Wilcox. “I’m aghast at how this small group of people would put their own avarice ahead of the education and safety needs of the kids in our neighborhood. It is disgusting, especially at this time of disruption and uncertainty.”

Save the Park and Build the School is a non-profit organization comprised of “numerous citizens who use the park for outdoor recreational purposes.” The 47-page complaint filed by Procopio in the US District Court for the Southern District of California outlines how Save the Park believes NPS violated its own rules in approving an “unlawful” boundary conversion given that the district has not satisfied its state and federal environmental review requirements.

The complaint also alleges that the district violated a United States Land and Water Conservation Fund (LWCF) agreement and the lawsuit settlement by working in the park area without approval. Save the Park alleges that the district took its construction plans out of order “in an effort to construct as much of the multipurpose room and other improvements within the parking anticipation of a legal challenge to the NPS approval.” The district is still responding to that claim.

Eleanor Musick, a Cardiff School neighbor and member of Save the Park, said that the new filing challenges the construction in the park only and 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.”

“The school district continues to distort facts to suggest we made money off the settlement, solely to incite anger,” Musick said. “Nothing is further from the truth.”

Musick said the $500,000 payment covered only a portion of the attorney fees incurred by Save the Park in obtaining a final ruling of a CEQA violation. “No one associated with STP made a penny off the lawsuit,” she said. Musick said several dozen supporters donated thousands of dollars to cover the costs of the lawsuit that were not covered by the attorneys’ fees paid by the district.

Save the Park has stated that the additional costs the district claims to have experienced due to their lawsuit arise from its “mismanagement of the project resulting in the decertification of its EIR, the demolition of the school before it had full approvals and its highly litigious approach to resolving disputes.”

“If holding the district accountable for flouting environmental laws and conservation agreements, if asking them to be honest, to act in good faith, and to not take huge risks with taxpayer funds, is ‘disgusting’, then maybe we’re guilty,” said Musick. “The district admitted in its EIR that the project would cause ‘significant environmental impact’ then claimed to be exempt from doing anything about it. The district could have avoided ever having to deal with the federal protections on the park if they had simply revised their plans to expand into the park at the early stage when minimal design fees had been incurred.”

“People are tired of public officials who hold themselves above the law, whether it’s nationally or locally.”

The boundary adjustment
A portion of the district-owned property that consists of the school’s playfields has historically been used as a park, named in honor of a former principal. In 1993, the city of Encinitas and the district received a grant from the LWCF grant to make park improvements and created a boundary that identified as a recreation area. By accepting the grant, the district was required to maintain the land for recreational use “in perpetuity.”

The district was informed of the LWCF agreement in fall 2017—the district claimed the agreement had fallen off the institutional memory of anyone at the district and the city. The LWCF grant language prevented the district from building any structures within the set boundaries so the district had to go through the lengthy process of an adjustment that would allow them to build as well as preserve the public recreational use of the property. The district obtained approval for the boundary adjustment from the California Department of Parks and Recreation’s Office of Grants and Local Services (OGALS) in November 2019 and from NPS on April 24, 2020.

One of the points raised in the Save the Park lawsuit is that the regulations for the LWCF require that all reasonable alternatives to encroachment into protected park area be considered before submitting an application for NPS review. Save the Park claims that the district never evaluated any design modifications to prevent or minimize encroachment into the park, using as evidence sworn testimony by the project architect and the district’s bond manager.

When the conceptual plan was released in August 2017, the district heard feedback to maximize the field as well as neighbor concerns about the buildings blocking the views to the ocean. The district revised the plan by moving the kindergarten and extended-day program to the other side of campus. While they explored the alternative of moving the multipurpose room building, it was determined that no other placement made sense programmatically—other options created safety concerns and placing buildings on the higher points of the site would impact other neighbors’ views.

“This new lawsuit solidifies that the few entitled neighbors suing have zero regard for the true purpose of this project; a safe and modern public elementary school. The plaintiff’s contested location of the multipurpose room was intentionally decided upon by world-class experts in K-12 safety and education,” said parent Morgan Gates. “This building must remain in its current location to be able to lock the school down and ensure a closed campus. In a time when active shooter drills are part of the elementary curriculum, this level of precaution is non-negotiable. Student safety, across the board, must remain the highest priority.”

Musick stated that the design changes made in summer 2017 occurred before anyone was aware of the park’s legal protections and there were no efforts to avoid encroachment after the district learned about the LWCF requirements.

She also stated that the district has never suggested any compromise—“The only ‘compromise’ they proposed was that Save the Park drop the lawsuit” she said.

“Save the Park did, indeed, compromise during settlement, generously giving the district a full two years to seek NPS approval because a proper evaluation process can be lengthy,” Musick said. “In return, the district agreed to copy Save the Park on its correspondence with NPS. Instead, the district provided nothing to Save the Park until days after receiving final approval, after it had already started bulldozing the park.”

Save the Park’s complaint states that as the rebuild eliminates nearly 20% of the park’s public recreational use, the district is required to provide the same square footage in replacement land of reasonably equivalent recreational use.

“NPS erroneously deemed the paved parking lot a reasonably equivalent recreational use to the former grassy parkland, contending that it will provide additional parking for access to the park,” the complaint reads. “Basic common sense belies the conclusion that a paved parking lot serves a reasonably equivalent recreational use as grassy parkland where children can play and families can picnic on warm sunny days.”

According to the district, the amended boundary results in a net gain of more than 23,000 square feet of additional dedicated public recreation space that will be a benefit to both the students and the community when not in use by the school.

The existing softball/baseball field will be converted to a soccer/multi-use field and the plan creates a more contiguous green space by removing an existing play apparatus that bifurcates the field areas. A concrete terraced seating area would be built adjacent to an outdoor plaza off of the multipurpose building and they plan to add two picnic areas. A portion of the land is currently fenced off for use as a school garden, however, the district proposes to make it accessible to the public in non-school hours and to establish a community-based garden program.

“The irony in all of this is that at the end of the day, we are actually improving, enhancing and adding dedicated space to the school playfields which are available for public recreation when they are not in school use,” said Siena Randall, board president. “So, the argument that this is ‘about the park’ is disingenuous, and the motives of this group in repeatedly suing the district are certainly not in the best interest of the students or the community.”

According to a release, the district will review its options for responding to this new lawsuit and will remain focused on completing the project as expeditiously as possible. The district said any stoppage or delay to construction due to the new lawsuit could prevent Cardiff School from opening for students in the fall.

“During a time where communities need to come together more than ever, ours is being torn apart by a few people in opposition to an elementary school rebuild,” said parent Lisa Hoeck. “Their continuous legal actions have delayed classroom construction and threatened access to education for our youngest citizens. They are wasting tax dollars of local, state and federal levels at the additional cost of the safety and education of kids.”

The situation in Cardiff is being closely eyed by Del Mar residents to the south—on June 12, the non-profit neighborhood group Save the Field, also represented by Procopio, filed a CEQA challenge against the Del Mar Union School District’s rebuild of Del Mar Heights School, the same day as the second lawsuit against Cardiff was filed.