Defying Judge’s Ruling And Upland Council Sentiment, City Attorney Pushes Forth With Parkland Sale

In apparent defiance of the prevailing sentiment on the Upland City Council and a ruling by Superior Court Judge David Cohn, Upland City Attorney Jim Markman is pushing ahead with the final processing of San Antonio Regional Hospital’s purchase of a portion of Upland’s Memorial Park.
On March 26, 2018, with 72 hours notice, the Upland City Council as it was then composed voted 3-to-1 to reduce the grounds of historic Upland Memorial Park by more than four-and-one-half acres, handing the difference off to San Antonio Regional Hospital to be used to accommodate a multi-story parking structure.
That came after months of quiet, indeed private and secret, discussions between the city’s senior staff and the management of the San Antonio Regional Hospital. At the March 26, 2018 meeting, after the city council adjourned into a closed door session with then city manager Bill Manis, then-community development director Jeff Zwack and city attorney James Markman, the final terms of the sale of the park property were explicated to the council. At the council’s open public session for its regularly scheduled meeting that took place later that night, the council approved selling 4.631 acres of park property to the hospital, the primary campus of which adjoins the 38.5 acre park.
In approving the purchase and sale agreement, the council authorized Manis to execute all necessary documents to approve the sale.
According to Zwack, the city used an independent third party appraiser to reach a conclusion that the park property has a value of $893.975.38 per acre, making the 4.631 acre parcel worth $4,140,000. Zwack further reported that San Antonio Hospital agreed to a purchase price slightly above $906,931.55 per acre, such that the hospital is paying $4.2 million to acquire the property.
While Mayor Debbie Stone and then-council members Gino Filippi and Carol Timm went along with making the sale, Councilwoman Janice Elliott opposed it. Then-councilman Sid Robinson was not present at the meeting. It was suggested at the time that Robinson was opposed to the sale but was unwilling to cut crosswise of the council majority, with which he was aligned.
It was anticipated that the sale would raise the hackles of the community. As such, the council, at Markman’s recommendation, authorized him to file a so-called validation proceeding intended to foreclose any procedural or future legal challenge to the sale. In its validation action filed with the court, the city invited anyone opposed to the sale to lodge a protest, which would then be heard by a judge rather than being subjected to a vote. The challenge to the validation had to be filed within 60 days.
Once the court validated the sale, any future lawsuits contesting the sale would be barred.
The validation procedure was directed to the courtroom of Superior Court Judge David Cohn in San Bernardino.
Part of the calculation made by the city council majority and senior city staff, which counted Manis and Zwack among its ranks, was that no one would go to the expense of hiring an attorney to make an answer to the validation petition.
That calculation proved mistaken, however, as Marjorie Mikels, an attorney living in the city, as well as Cory Briggs, an attorney based in both Upland and San Diego, filed answers to the validation action. Mikels did so on behalf of herself and some of her sister and fellow residents. Briggs did so as an attorney retained by other Upland residents.
Those responses took issue with the sale on multiple grounds. Among those was that the city selling off a slice of the park – in particular the one sold by the council on March 26, 2018, which includes a long extant and actively used baseball field – is tantamount to abandoning public property. Such abandonments, under state law, cannot be effectuated without a vote of the citizens residing in the jurisdiction that owns that property.
Having miscalculated in his assumption that no one would come forward to contest the sale in the course of the validation proceeding, Markman was faced with having to make a convincing case that the city council, acting on its own authority, was within its rights to sell off city land. Faced with the argument that a municipality’s abandonment of property it owned and was putting to beneficial public use had to be subjected to a vote, Markman sought to convince Judge Cohn that selling the property did not constitute an abandonment.
The matter complexified, at least for Markman, when as a consequence of the November 2018 election, there was a three-member changeover on the city council in which Timm and Filippi, who supported the sale, and Robinson, who had not opposed it, were moved out of office. Replacing them was at least one new member – Rudy Zuniga – who viewed the sale of the park property unfavorably. The two other replacements on the council – Ricky Felix and Billy Velto – are either not strongly or in any way supportive of the parkland sale.
Ultimately, some 14 months after the sale of the park property was approved by the city council, on May 29, Judge Cohn, after hearing the responses to the validation action, dismissed the city’s petition for validation.
At its July 8, 2019 meeting, the Upland City Council considered whether the city should appeal Cohn’s decision. The council, with Elliott, Zuniga and Velto prevailing, voted 3-1 against doing so, with Mayor Stone dissenting and Councilman Felix abstaining.
At this point Markman, having been shut out in Cohn’s courtroom and directed by his political masters on the council to forego trying to legally justify the sale, inexplicably is seeking to push through with the sale. Markman has seized on two points in allowing the sale to proceed. The first is the consideration that Judge Cohn, in rendering his ruling dismissing the validation action, had not determined specifically whether or not the sale of the park property constituted an abandonment thus requiring voter approval of the sale. In this way, there has been no ruling one way or the other about the validity or legality of the sale, according to Markman. Secondly, the city council has not taken any specific action to to rescind the sale. Thus, according to Markman, the sale is still on.
The hospital must proceed at its own peril in making the purchase, however. Because of Judge Cohn’s dismissal of the validation action, anyone with standing is free to sue both the city and the hospital over the sale. Whether that will occur is subject to further calculation. While at least some Upland residents were, as demonstrated, willing to file an answer to the validation petition, the more expensive proposition of actually filing suit to stop the sale is another matter.
The rationale for Markman’s recent maneuverings is opaque. Though his support of the sale in 2018 and his filing of the validation effort was consistent with the wishes of the majority of the council at that time, the changeover in three-fifths of the council since has made it relatively clear that the current council is not in favor of perpetuating the sale. The July 8 vote by the council against appealing Judge Cohn’s decision resounded as a signal that sentiment on the council is currently moving against closing the deal with San Antonio Community Hospital on the park property purchase.
The next Upland City Council meeting will not take place until August 12. That meeting’s agenda will not be generated until August 8, at which point an item calling for a recission of the sales agreement may or may not be included on that schedule of possible council action.
-Mark Gutglueck

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