An Upland resident has taken her city up on its invitation to members of the public to legally dispute the intended sale of 4.631 acres of Memorial Park to San Antonio Community Hospital to be used for what the city claims will be a parking lot/parking structure.
On March 26 the Upland City Council on a 4-to-1 vote consented to selling 4.631 acres lying along the western periphery of Memorial Park to San Antonio Hospital for $4.2 million, translating to $906,931.55 per acre. The lion’s share of the property consists of a baseball field. Also to be taken over by the hospital is an open grassway dotted with mature trees, which encompasses the baseball diamond.
Concomitant to ratifying the sale, the city on May 16 also initiated a validation action pertaining to the agreement with San Antonio Regional Hospital. Validation procedures enable a public entity to confirm the legality of a given action, such as a contractual agreement. To validate such an action, the public entity, in effect, sues all persons deemed to be interested in the matter, inviting a court decision with regard to all issues any respondents might raise in answering the suit. Ultimately, the court’s decision is intended to make a determination that the action is allowable under existing law and thus valid. The court could, however, find the action of a public agency to be invalid. The overriding purpose of the validation process is to eliminate uncertainty by obtaining a judicial determination of the validity of the transaction based on existing law.
In its complaint for validation, the city laid out a multitude of reasons why it considers the sale to be valid and legally unassailable.
Local resident Marjorie Mikels, in an answer completed on July 4 and filed on July 6, undertook to answer all articles contained in the city’s complaint.
In her answer, Mikels propounded, “Answering defendant denies that plaintiff has any right, or entitlement to the relief sought in the complaint.”
Mikels maintained that there are “contradictory assertions of facts contained in the presenting documents.” She noted that the city says it is selling 4.63 acres, “but the form of the grant deed has not been provided to the public, and the accompanying parking easement agreement [specifies a] 5.5 acre parcel, a separate parcel map has not even been completed yet by the city as would be required to convey, so no one can see the actual amount of the city’s park land the city council intends to convey to private parties.”
Moreover, she states in her answer that the justification the city has cited for making the sale, essentially that the proceeds for the sale will be used for future park improvements, is invalid. Mikels disputed the city’s assertion in its filing that it would ensure “all net proceeds [would] be reinvested by the city to implement the city’s anticipated Memorial Park Master Plan, since such plan does not yet exist, has not been prepared, or presented to the public or approved by the city council. By [the] city’s own documents, over $4 million additional moneys would be required to complete such plan and the city has no present idea from where that money will come.”
Mikels said the city is not authorized to proceed with the sale because making the sale will violate the city’s general plan and zoning laws and codes, and the sale will “circumvent all of the legal [California] Government Code requirements pertaining to abandonment and sale of public park land.” She said it was impermissible for the city “to allow conversion of park/recreation/open space to office/professional of private owners for private business development without so much as an environmental impact report or compliance with California environmental laws.”
The city by its action was moving, Mikels said, “to sell off 12 percent of the valuable historic, irreplaceable 38.5 acres of Memorial Park, established in the 1930s when the population was likely less than 10,000 people, at a time now when the population has reached over 76,000 people.” This would, Mikels asserted, “deprive the lower-economic/minority community in which Memorial Park is situated of recreational land presently used as a ball park, substituting therefore office/professional development that has not even yet been disclosed, planned or seen by the interested affected public, deceitfully making it appear that our great hospital needs the land for parking when the assertion is patently false. Upland asks this court to be a party to violations of law, devastation of minority community recreational facilities, circumvention of environmental protections, deceit and omissions of material fact, via a validation action. This court has no power to waive law and the City of Upland may not rely on Code of Civil Procedure §860 to evade compliance with law. Upland has no legal authority to bring this validation action.”
Mikels quoted from the 1927 case of Slavich v. Hamilton, which states that it is a “well-settled principal of law that land which has been dedicated as a public park must be used in conformity with the terms of the dedication, and it is [outside] the power of a municipality to divert or withdraw the land from use for park purposes.” She said, “The legislature has enacted three different schemes concerning the abandonment of park property, and which one is used depends on the manner of acquisition of the property when it became a park. All three schemes… were avoided by this action, which circumvents the principal question of acquisition, and attempts to claim there is no ‘abandonment’ because the public will still get to use, ‘free of charge’ parking spaces at the new office-profession business development that is to replace the ball park.” She asserted that the “city’s plans show intent to eliminate two baseball fields in the park, only one to be replaced using valuable open park space and chopping down mature oak trees to do so.”
In her answer, Mikels noted that there was “insufficient information” available as to what restrictions had been placed on the city with regard to the use of the park property at the time of the acquisition of land to construct the park some 80 years or more ago. She alluded to the “failure of the city to provide to the public, or to this honorable court, the conveyances or deeds or other pertinent information divulging the means, methods, grantors, dates, and possible deed restrictions by which the city acquired the subject park property, and the actions taken by the city to dedicate, or accept or record with the county the park plans or otherwise formalize the acquisition and establishment of the park. This omission is fatal to the action herein, because the uses to which park property may be devoted (including its abandonment and sale) depend, to some extent, upon the manner of its acquisition whether dedicated by a donor, or purchased or condemned by the municipality.”
Mikels took issue with the city’s contention that the park is an “underused public space.” She said, “This is a false assertion by the city attempting to find grounds for justification to sell off the baseball field to the hospital’s assignee for office/professional purposes based on the city’s own negligence and incompetence in dealing with its city-wide homeless problem, and its police department’s failure to prevent illegal conduct.”
Mikels disputed the city’s assertion in the validation action that “San Antonio Regional Hospital is in need of land for parking.” She said, “This allegation is false and is a ruse or red herring to try to make it appear the hospital needs the baseball park property for parking when in reality upon approval of the patient tower expansion and the medical office building, the city approved parking plans to accommodate that growth, and required adequate parking as a condition of approval of both expansions. Duly-submitted parking plans were approved and are in existence without the need for additional parking in the Upland Memorial Park baseball field.”
Furthermore, she said, “The park property being sold is not to be used for parking, but for office/professional building construction purposes, and only the same number of parking spaces which exist today beside the baseball field will be available for non-exclusive use by park users.”
Mikels took further issue with the manner by which the Upland City Council ratified the sale, asserting the city had given its residents inadequate notice of the action it was to take when the sale was approved.
“The March 26, 2018 meeting agenda deceptively failed to properly identify Upland Memorial Park as the property which was being sold to San Antonio Regional Hospital, and there was no public hearing as required by law – the item was merely listed on the agenda as a ‘business item,’ as if selling off 12 percent of the oldest park in the community was a routine business item requiring no special input from the community and no special opportunity to address the council on that item,” Mikels’ answer to the validation suit states.
Mikels assailed the city for failing to “provide the true legal description” of the property to be sold, by having “not recorded a parcel map showing just what is being sold” and for failing “to provide a copy of the deed, showing the true assignee. No appraisal has ever been disclosed to the public to justify the [selling] price,” according to Mikels.
The city maintains that it used an independent third party appraiser to reach a conclusion that the park property has a value of $893.975.38 per acre, such that the $906,931.55 per acre purchase price San Antonio Hospital agreed to eradicated any conceivable assertion by those wishing to contest the sale that the city was engaging in a gift of public funds or acting improperly in closing the deal with the hospital.
The city made misrepresentations about the use to which the property being sold is to be put, Mikels said. The city further denied the city’s residents their right under the law to vote on the sale of municipal park property, she alleged. Mikels noted that the city said there would be “continued use of the property for park purposes,” which she said was claimed “in order to bypass the legal requirements for selling park property by saying that the ‘easement for public parking at no cost’ and ‘use of the sales proceeds for park improvement purposes’ satisfies that definition, when the Government Code (§§ 38440 – 38462) prohibits sale of the public park property without a special election, unless what is being sold is only a minor portion of the park, not 12 percent, in exchange for an equal or greater area or value of privately owned land contiguous to the park.”
Mikels said that such a sale without providing replacement property to be included in the park from which the property was excised is illegal. Moreover, she said, such a land swap could take place only after proper notice and a public hearing in which there is a “determination that the exchange is in the public interest.”
The filing of the validation petition, Mikels said, “asks the court to participate in a fraud on the electors and residents of the City of Upland by falsely asserting that this sale of park land is in conformity with the laws and enactments controlling these proceedings and that the agreement is lawful, valid and not subject to further challenge, and selling the land to the hospital or its assignee for development of an office/professional building will be a continued use by the public of the property ‘for park purposes.’ The scheme to sell off this park land without a vote of the electorate was and is fraudulent from its inception, and is defective, void and unenforceable against the public interests of the citizens of Upland and this answering party. The sale of this park land is a part of a larger pattern of fraud and corruption, self-dealing, conflict of interest, concealment of material fact, and trickery, designed by the city attorney and other officials, some elected and some ‘appointed,’ to manage a sale for private profit and interests, of the public’s park land, using their official authority and the guise and color of law to circumvent the laws designed to protect and preserve precious valuable open-space, park land, environmental amenities and recreational areas of the city. Those who orchestrated this deceitful scheme and theft on the public, again depriving the citizens of Upland of their statutory and Constitutional right to vote on issues pertaining to their public property, should be prosecuted criminally and civilly, not have their scheme sanctioned by this honorable court. The purchase and sale agreement and escrow instructions and all accompanying documents approved by the Upland City Council majority on March 26, 2018 at the behest of and upon assurances of the Upland city attorney are defective and unenforceable inasmuch as they violate the United States and California Constitutions’ Equal Protection clauses by treating some similarly situated and benefited properties and persons (i.e., lower-income minority families, neighborhoods and communities) differently than others, by depriving these communities of their precious park land, while planning to build parks far away in the northwest quadrant of the city, on land owned by wealthy favored private persons and developers, at locations not accessible by children on bicycle and foot, but only by vehicle, close to the upscale neighborhoods of the city, all without any rational bases for such disparate treatment, and without prior notice or opportunity to file a protest against or contest such unequal treatment.”
Mikels, who in addition to living in the city and operating a law office in Downtown Upland, was born at San Antonio Hospital. She asserted in the answer, “The plaintiff and its officers were negligent and careless and lazy with respect to the matters alleged in the complaint.”
This matter, for which a trial-setting conference is scheduled on November 16, is to be heard by Superior Court Judge Janet Frangie.
-Mark Gutglueck