Judge Rewrites Stone-Led Council’s Measure Advocating Upland Park Sale

More than two years after the Upland City Council as it was then composed agreed to sell more than four-and-a-half acres of Memorial Park to adjoining San Antonio Hospital for conversion to a parking lot, a differently-comprised city council this week gave its consent to having that sale ratified by the entirety of the City of Upland’s voting population, a requirement of state law the city and hospital had previously sought to bypass.
Along the way, city officials, the hospital’s corporate officers and both entities’ lawyers had sought to load the ballot measure relating to the sale with language intended to persuade residents to accede to the sale. Nevertheless, a core group of residents opposed to the sale, assisted by an open-government attorney, have thwarted the city’s efforts at every turn. As a consequence, a majority of the now-three-fourths strength city council appears to have become disenchanted with the law firm that has been providing the lawyers who have been serving in the capacity of city attorney throughout the time the city has been undergoing the city parkland sale ordeal.
On March 26, 2018, with 72 hours notice, the Upland City Council, which then consisted of Mayor Debbie Stone, councilmen Gino Filippi and Sid Robinson and councilwomen Carol Timm and Janice Elliott, voted 3-to-1 with Robinson not participating and Elliott in opposition to reduce the grounds of historic Upland Memorial Park by 4.631 acres, handing the difference off to San Antonio Regional Hospital to be used for a parking structure.
That came after months of quiet, indeed private and secret, discussions between the city’s senior staff and the management of 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-Development Services Director Jeff Zwack and then-City Attorney James Markman, the final terms of the sale of the park property were explained 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 grounds of which adjoin 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, with San Antonio Hospital paying $906,931.55 per acre, or a total of $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, by design, was not present at the meeting.
Because it was anticipated that the sale would raise the hackles of the community, the council followed City Attorney James Markman’s recommendation to authorize him to pursue 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 calculation by Markman and of the city council majority and senior city staff, which then included Manis and Zwack, was that no one would go to the expense of hiring an attorney to make an answer to the validation petition.
The validation procedure was directed to the courtroom of Superior Court Judge David Cohn in San Bernardino. To the chagrin of city officials, 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 longtime friends and neighbors. Briggs did so as an attorney retained by other Upland residents.
Those responses took issue with the proposed sale on multiple grounds. Among those was that the city selling off a slice of the park – in particular the one considered 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 obliged in the face of Briggs’ and Mikels’ filings to make a convincing case to Cohn 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 asserted that selling the property did not constitute an abandonment.
Ultimately, some 14 months after the sale of the park property was approved by the city council, on May 29, 2019, Judge Cohn, after hearing the responses to the validation action, dismissed the city’s petition for validation. In effect, anyone with standing – meaning essentially any city resident – was yet at liberty to file a lawsuit challenging the sale.
Meanwhile, in the November 2018 Upland Municipal Election, both Councilman Gino Filippi and Councilwoman Carol Timm were turned out of office, at least in part as a consequence of city resident outrage over the proposed sale of the park property. In addition, Councilman Sid Robinson, who had not been present for the March 2018 vote to sell the park property but who was politically aligned with Filippi and Timm and could generally be counted upon to support them, had chosen to not run in the election. Councilwoman Janice Elliott, who had opposed the sale, had gained election at the same time by competing in the race as a candidate in the city’s newly created District 2 in accordance with Upland’s switch to an electoral ward system. Replacing Timm on the council was Rudy Zuniga, who viewed the sale of the park property unfavorably. The two other replacements on the council – Ricky Felix and Billy Velto – were either not strongly or in any way supportive of the parkland sale.
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.
Thus, had the city proceeded with the sale of the 4.631 acres to San Antonio Regional Hospital under the terms approved by the city council in March 2018, it would do so at its own peril, since a legal challenge to that action would most certainly have occurred.
San Antonio Hospital’s board and corporate officers faced a dilemma. They had embarked, beginning in 2011, on a major expansion of the hospital which involved an outlay of $160 million to create the four-story Vineyard Tower at 999 San Bernardino Road, the addition of 92 beds to increase the total number to 363, and intensifying the facility’s urgent medical care capability by swelling the number of stations in the hospital’s emergency room from 34 to 52. That expansion took until 2017 to complete. It made no adjustment to the hospital’s existing parking lot. In 2017, the hospital embarked on a further expansion, a $30 million, 60,000-square-foot structure at 1100 San Bernardino Road to house an ambulatory care center as well as a City of Hope outpatient cancer center on the first floor, the intention being to make the oncology services of the City of Hope, which has its major campus in Duarte, available to patients locally. The hospital did construct a parking lot behind the 1100 San Bernardino Road project.
A considerable degree of the financing for the hospital’s energetic expansion had been bond financing, consisting of $125 million in certificates of participation essentially issued by the City of Upland which a previous city council had authorized in 2011.
Remarkably, neither hospital officials nor Jeff Zwack, then the city’s community development director, had focused on the need for additional parking to accommodate the substantial influx of patients to San Antonio Regional Hospital that came about as a consequence of the expansion. By the end of 2017, the seriousness of that oversight was becoming drastically apparent, as the existing parking lot filled up relatively early in the day and remained stuffed with vehicles well into the evening, oftentimes requiring that infirm patients driving to the hospital alone for non-emergency treatment or appointments walk well over an eighth of a mile and sometimes as far as a quarter of a mile to get to the hospital entrance. Harris Koenig, who became president and CEO of the hospital in June 2011 and had been responsible for San Antonio transforming from a community hospital to a regional one, somewhat belatedly turned to the city for help. As the head of Upland’s major community institution, one that had been in existence since 1907, one year after Upland had incorporated as a municipal entity, Koenig found a sympathetic ear in that of Marty Thouvenell, the city’s longtime police chief then retired who had come out of that retirement in July of 2016 to serve what turned into an eighteen month-long stint as Upland’s interim city manager. Thouvenell then was given a year-long contract to serve in the role of the city’s primary management consultant when Bill Manis was brought in on January 2, 2018 to serve as city manager. Thouvenell was a major influence upon Manis as well as Zwack, who in his capacity oversaw the city’s land-use, planning and developmental issues. From as early as 2011, Zwack had neglected to properly address the parking and circulation issues relating to the hospital expansion. A decision to utilize the parkland, which is immediately proximate to the hospital campus, quickly emerged. Manis, whose knowledge of the city was relatively limited, understood that a majority of the city council was intent on facilitating the hospital’s operations. He went along with the concept of taking what amounted to roughly 12 percent of the 38.5 acres of remaining parkland, which had been reduced on more than one occasion in prior years to accommodate a portion of the hospital grounds, conditional upon the city attorney, James Markman, certifying that such a diversion of the property was legal. For his part, Markman was anxious to accommodate the council as well, which appeared willing in the main to go along with divesting the city of the park acreage for the good cause of ensuring that the hospital would be able to fulfill its mission of safeguarding the health of the community.
In fact, the city council’s resolve to solve the hospital’s problem brought on by the poor planning relating to parking issues while the 2011-to-2017 expansion was ongoing was less firm than was apparent on the surface. Councilman Sid Robinson’s political base consisted of those involved in youth sports in Upland, primarily those involved in Little League and Pony League baseball. He had misgivings about eradicating an actively used baseball diamond at Memorial Park, and was reluctant to support his council colleagues – Stone, Filippi and Timm – and Markman, Manis, Zwack and Thouvenell in the fix they had come up with. Robinson, however, was torn. He had been appointed to the city council in December 2016 as a result of a vacancy on the panel that emerged when Stone had been elected mayor the prior month with two years yet remaining on the council term she had been elected to in 2014. Robinson had finished second behind Elliott in the November 2016 city council election. He had become a firm and fast element of the city’s political establishment, one that was unquestioningly supportive of staff at City Hall. He had grown to identify himself as a member of that establishment. Recognizing that opposing the sale of the parkland to the hospital would put him sharply at odds with three of his council colleagues and poison his relationship with Thouvenell, who as the city’s management consultant virtually dictated city policy and controlled Manis, Robinson made a deal with himself. He compromised his own principles by not protesting the proposed parkland sale or opposing it. But he assuaged his conscience by not supporting it, either. In this way, he sought to salvage his status as a city official and remain on favorable terms with the council’s ruling coalition.
For his part, Markman resolved to please his political masters on the city council by use of the obscure and recondite nature of the law to insulate the city council, city staff and City Hall in general, along with the hospital. He hit upon using the validation procedure, which would create a very limited timeframe during which any opposition to the sale would need to emerge and make its opposition known. Once that protest period elapsed, the city would obtain an order from the court that the sale was validated, with no potential at all for anyone to block the sale after that point. In marking out that strategy, Markman was taking a calculated risk. Under state law, a municipality cannot divest itself of park property without a vote of that city’s residents assenting to the sale. That section of the law, Markman understood, was a relatively obscure one. There was a likelihood, he figured, that no one would take stock of the law, and even if someone did, there was equally little likelihood that such a person would go to the expense or trouble of hiring an attorney to contest the validation.
As it turned out, however, Markman had miscalculated. Within a fortnight of the March 26, 2018 vote of the city council to sell the 4.631 acres to the hospital at a total price of $4.2 million, a solid tide of opposition to the sale had developed across the community. From that cauldron of discontent, both Mikels and Briggs came forward to make their challenges of the validation, from which ultimately emerged Judge Cohn’s finding that the sale should not be validated. Additionally, the move turned out to be professionally disastrous for Zwack, Manis, Koenig and Markman, and politically devastating to Robinson, Filippi and Timm, with the latter three having to stand for election or reelection in 2018 in order to remain in office. In the face of the resident uprising over the reduction of the park, as well as another proposal to shutter in its entirety Cabrillo Park on the city’s lower west side so it could be developed into residential housing, Zwack proved to be the first casualty, leaving in June 2018. Manis remained intact as city manager slightly longer, but found his position untenable by September, at which point he tendered his resignation, which became official on November 1, 2018. In the November 2018 election, both Filippi and Timm were defeated in their bid to remain in office, the outrage in each of their newly formed voting wards – District 3 and District 4, respectively – so great that they were beaten by their challengers. Robinson, whose primary constituency was that element of the city closely involved in youth sports, learned early, by late spring, in fact, of the discontent roiling among the Upland population. Because of his craven unwillingness to take a stand against the sale of the parkland and the baseball diamond in particular, he was seen as a traitor to his constituency. Rather than vie for election and suffer a humiliating defeat and rejection by those who had once thought highly of him, he opted to not seek election and avoided the ignominy visited upon Filippi and Timm of being voted out of office. Thovenell, too, was an object of scorn and derision for his part in orchestrating the parkland sale. The acrimony and infamy heaped upon him as a result induced him to end one month early his contract as a management consultant to the city, which was to run until January 1, 2019 with options to renew it. A little more than three months after Judge Cohn’s ruling rendered the easiest solution for the hospital’s parking woes immediately unachievable, the San Antonio Hospital Board of Directors forced Koenig out as president and CEO of the hospital. Markman, who at that point was yet hopeful that Judge Cohn would reject the arguments being made by Mikels and Briggs and grant the validation, remained in place. But some five months after Judge Cohn dismissed the city’s validation motion, Markman, by that point a thoroughly despised figure among a cross section of Upland residents, resigned, just as a majority of the city council was on the brink of terminating him. The council, however, did not terminate the city’s arrangement for legal services with Markman’s law firm – Richards Watson & Gershon – and agreed to have one of Markman’s colleagues with the firm, Steven Flower, move into the role of Upland city attorney.
San Antonio Hospital, meanwhile, had not resolved its parking insufficiency issue. Taking stock of the existence of state law that requires that a vote of the residents must take place before a municipality can shed any existing park property, the hospital’s management had come to recognize that such a vote would need to take place, and that it would have to prevail in that vote, if it was going to be able to buy the 4.631 acres. To put such a referendum before the voters, the hospital would need to gather the valid signatures of 15 percent of the city’s voters who had participated in the last election endorsing such a ballot measure. An alternative existed, that being that the city council could use its authority to place the proposition in support of the sale on the ballot. Using its influence with Mayor Debbie Stone, who had assembled a loose coalition over the course of 2019 that consisted of the general support of councilmen Ricky Felix, Rudy Zuniga and Bill Velto, the hospital obtained council approval for putting the measure on the November 2020 ballot. By doing it that way, the council obtained an assurance from the hospital that it would pay the roughly $130,000 cost of having the measure appear on the ballot rather than the city paying for it, which would have been the case if the hospital had succeeded with a petition drive to force the measure onto the ballot.
Flower was under pressure at Richards, Watson & Gershon to in some fashion salvage or resurrect his professional colleague Markman’s reputation and good name. Additionally, he perceived, perhaps not fully accurately, that the loose ruling coalition led by Mayor Stone was yet intact, and that it was that coalition’s will that the hospital prevail on the vote with regard to the sale. Accordingly, when he put the language together for the ballot measure, he shaded things in a way that was intended to move the city’s residents toward supporting, rather than voting against, the measure. Indeed, subtly embroidered into the text of the measure was what some interpreted to be an argument in favor of it. The measure, as written by Flower, stated, “In order to secure at least $4,300,000 for the City of Upland to use solely for public improvements to Memorial Park, which may include a new baseball field, additional public parking and other new public amenities, landscaping, structures, and walking trails, shall the City discontinue using approximately 4.63 acres of Memorial Park so it may be sold to San Antonio Regional Hospital to add new facilities and increase capacity for critically-needed medical services?”
That ballot language was sent to the San Bernardino County Registrar of Voters Office, which agreed to place it on the November ballot.
There remain elements of the Upland community opposed to any reduction of the footprint of Memorial Park. One among those, Marjorie Benesh, represented by Briggs, filed suit against the city, asserting the ballot wording “is the language of advocacy” and was therefore not impartial. Given that the registrar of voters’ deadline for receiving the language on ballot initiatives had elapsed on August 17, an expedited hearing on the matter was set before Judge Cohn on August 25. Cohn’s authority as a Superior Court judge was such that he could order the Registrar of Voters to make changes to the ballot language, even if the registrar’s deadline for receiving that language had already passed.
On Friday, August 21 at 8:30 p.m., the Upland City Council scheduled an emergency meeting, to be held at the highly uncommon meeting time of 7:30 a.m. on Monday, August 24, to consider submitting an alteration to the language of the ballot measure, which by that point was designated Measure Q, to the registrar of voters.
At Monday morning’s meeting, the city council, which at this point has been reduced from its normal five members to four members following the resignation of Councilman Ricky Felix announced in May and made effective in June, the council heard Flower contend that he “continue[s] to believe that the existing ballot label is impartial and fairly describes the nature of the measure.” Flower nevertheless said that “to avoid any potential uncertainty and in an abundance of caution, San Antonio Regional Hospital is requesting the city council to consider amending the ballot label to ensure the voters have an opportunity to decide this question of public importance.”
Flower, Mayor Stone and City Manager Rosemary Hoerning, who are yet militating for the sale of the property in accordance with the wishes of the hospital, were concerned that if Judge Cohn did come to a determination that the wording of Measure Q was biased, he might dispense with the measure being placed on the November ballot altogether. Thus, Flower rewrote the measure so it was proposed to be worded, “Shall the measure allowing the City of Upland to abandon and discontinue using for park purposes approximately 4.63 acres of Memorial Park so it can be sold to San Antonio Regional Hospital, in order to add facilities and increase capacity for medical services, for a price not less than $4,300,000 that would be used solely for public improvements to Memorial Park, which may include a new baseball field, additional public parking, landscaping, walking trails, and other new public amenities, be adopted?”
At this point, the nature and purpose of the proposed parkland sale first broached in March 2018 has changed. Whereas originally, the property was to be used for a parking lot or parking structure, it appears the hospital is now contemplating constructing buildings upon the property to house medical facilities. This raises multiple issues, including questions relating to the value of the parkland to be sold as well as how the hospital yet intends to resolve its parking dilemma.
On Tuesday, August 25, 2020 at 1:30 p.m., Judge Cohn held in his courtroom a hearing on Benesh’s challenge. The Sentinel was present, as Briggs made a video appearance on behalf of Benesh, and Stephen Lee, an attorney with Richards Watson & Gershon, represented the city through a telephonic connection. San Bernardino County Assistant County Counsel Jolene Grider represented the San Bernardino County Registrar of Voters, also telephonically.
Briggs argued that both the ballot measure and Flower’s “impartial analysis” of the measure, which is to be included in the sample ballots provided to the city’s voters, were biased in favor of the measure. He also asserted that the city had failed to meet the registrar of voters’ deadline, such that the measure should be stricken from the ballot altogether.
Lee argued that there was no bias in either the ballot measure language itself or the analysis, as written by Flower. Under withering questioning by Judge Cohn as to the references to the money from the sale being applied to improvements to the city’s parks and whether such a guarantee existed, particularly with the use of the term “may” in how the money would be used, Lee faltered.
There also ensued among Judge Cohn, Briggs and Lee, a discussion as to whether § 4221(b)(1) of the California Government Code applied to the proposed sale of the property, which would trigger provisions of the Surplus Land Act requiring that the property would first need to be declared as surplus city property before it was sold and whether priority would then need to be given to those entities that might have an alternate use of the property, including low income housing, schools and, ironically, parkland, before the sale of the land to the hospital could be considered and go through.
Ultimately, Judge Cohn ruled that the Surplus Land Act did not apply. Judge Cohn also ruled that the city’s reference in the impartial analysis of the measure stating that the eventual use of the property to be sold to the hospital would be subject to obtaining a zone change and being in compliance with the California Environmental Quality Act obviated the necessity of pointing out to the voters, as Briggs suggested, that conformity of that land use with the general plan should have also been included in the analysis.
Despite siding with the city on those two points, Judge Cohn concluded that the wording for the ballot measure that Flower had worked up was deficient on multiple score.
The standard language required in all ballot measures, Judge Cohn said, is the question being posed to the voters starting with “Shall the measure” and concluding “be adopted?”
In his ruling, Judge Cohn further wrote, “Ms. Benesh is partially correct that the wording of the ballot question is biased in favor of the measure. The language about “a new baseball field, additional public parking and other new landscaping, structures, and walking trails” is language of advocacy. These improvements may or may not follow, even if the sale occurs. They are aspirational. The language puffs the measure and is not intrinsic to it.”
Cohn did not uphold Benesh’s objection about whether the language of the measure clearly demarks that the property might not end up in the hospital’s possession if certain conditions come to exist, but he stated, “Nevertheless, the wording of the ballot statement can be improved. After hearing the arguments of counsel, the court revises the language, pursuant to Elections Code section 9295, subdivision (b),1 as follows:
‘Shall the measure allowing the City of Upland to discontinue using approximately 4.63 acres of Memorial Park, thereby allowing the property potentially to be sold to San Antonio Regional Hospital for not less than $4,300,000, which, if the sale occurs, would be used solely for public improvements to other portions of Memorial Park be adopted?’”
The city’s last-minute rush to usher the ballot measure before Judge Cohn to get it on the ballot ultimately succeeded. For many in the Upland community, the stampede to get the issue of the sale before the voters did not take into consideration important aspects of the proposed sale, including the price of the property. One such issue is that the $4.2 million price tag affixed to the land in 2018 was predicated on the end use of the acreage as a parking lot, whereas now the value of the property may have escalated since the hospital has indicated the land will be converted to buildings housing the far more intensive use of medical facilities.
A final procedural action needed to be taken by the city council to resubmit the ballot language to the registrar of voters office. To do so, the council again convened a special emergency meeting, this time on Wednesday night, August 26, 2020, at 7:30 p.m.
Ultimately, the council voted 4-to-0 to forward the new language as framed by Judge Cohn to the registrar of voters office.
Before that vote was taken, however, there was discussion in which it appeared that the erstwhile ruling coalition that Stone had strung together might be falling apart. It is in no way surprising that Councilwoman Elliott, who has all along been opposed to the city making the sale of the parkland to the hospital, expressed skepticism about the hospital relying upon the diminution of the park as a solution to the hospital’s parking dilemma. Both Councilman Bill Velto and Councilman Rudy Zuniga on Wednesday night gave indication that they are growing impatient with the fashion in which Richards Watson & Gershon have continuously erred with regard to both the law and public sentiment in trying to straitjacket the city into selling the park property. Velto, along with two others – former Planning Commissioner Alexander Novikov and Lois Sicking-Dieter – is challenging Stone in the mayoral race this year.
Zuniga suggested that Flower’s duplicity and advocacy for the hospital was creating both confusion and a credibility problem for him, his law firm and the city. He asked Flower, “Steven, does a ‘no’ vote mean no? Is there going to be ‘No means yes’ and ‘Yes means no’? I want to be clear. On a lot of these measures it’s always opposite.”
“A ‘no’ vote would simply mean that the council could not put forward this measure for another year,” Flower responded.
“Well, this just needs to go away if it’s voted no,” Zuniga said. “It needs to go away. The residents, if they vote ‘no,’ it needs to stop, and I hope it will stop. If the field’s gone and we lose it, National [Little] League will be taking over the north field. We need more fields. I shouldn’t get into it, but it just needs to go away.”
Flower then sought to vector blame for the matter on the previous city council, while making no mention of the degree to which his Richards Watson & Gershon colleague, Markman, had been intrinsically involved in the now more than two-year-running entanglement.
“If I might just remind everybody,” Flower began, “the way the purchase-and-sale agreement was constructed from the beginning by the prior council was such that the council was always going to hold final say because the zoning change is also a precondition to the sale going through. So, there’s still this last hurdle,” Flower said, implying that it was the wish of the current council for the sale of the property to take place. That seemed to provoke Zuniga further.
“Understood,” Zuniga said, “but if it’s voted down by the community, it can be brought back in a year, you are saying?”
“Yeah, per the government code,” Flower said.
“That contract, though, the existing contract right now that was ran up before, will that go away?” Zuniga pressed through Flower’s double-talk.
“It does not,” Flower said. “The closing date is further out.”
Zuniga, at that point speechless, glowered at Flower.
Velto leapt into the breach.
“I specifically asked that question at a council meeting,” Velto said. “I said, ‘If this vote [goes] no, does this end the sale?’ or words to that effect. I’m paraphrasing. And I was told, ‘Yes.’ I want to be clear about that because the issue was we take it to a vote and if the residents say, ‘No,’ that should be it. But I understand in the real world the hospital would have to go out and create a measure on their own, but the sale agreement [from March 2018] would not be in perpetuity.”
Flower then indicated that it was the council that was responsible for extending the applicability of the March 2018 sale agreement.
“No,” Flower said. “The closing date was revised with the amendment, and I don’t have the amendment in front of me, to allow for additional time for this vote to be held, and for there then to be time to allow the zoning change to be enacted.”
“Understood,” said Velto, “but if it’s a vote ‘no,’ there wouldn’t be the next step of a zoning change or anything like that, correct?”
“Theoretically, no,” said Flower. “I only say that because a successful vote is not an express condition of closing, but it does effectively raise a substantial barrier.”
Flower’s characterization of a yes vote as “successful” illustrated to everyone in the room that he, as the city’s legal counsel, was militating on behalf of the hospital.
It was now Velto who was provoked.
“The reason why I voted the way I did was ’cause I believed that the residents should have the right to vote,” said Velto. “That’s the only thing I was in favor of. I don’t have a personal opinion, yes or no, about the sale of the park. I believe it’s up to the residents. If the residents vote ‘no,’ in other words if the majority is a ‘no,’ why then would the city still be bound by the agreement?”
Flower again demonstrated his bias in favor of the sale.
“Because a successful vote was never stated as being a precondition to closing,” Flower said.
“Isn’t that a failure in the contract to have no preset conditions that allowed the City of Upland to say ‘Conditions precedent?’” Councilwoman Janice Elliott interjected. “There’s no conditions precedent that gave us a way out.”
Flower then sought to pin responsibility for that on the previous council, suggesting that Markman had framed the contract that way at the direction of the prior council majority.
“I can’t speak to the direction that was given to my predecessor,” Flower said. “I was never given that direction.”
“The contract itself gave the City of Upland no out,” Elliott said. “The hospital had a list of like nine conditions precedent that could allow them to back out of the sale. Upland had zero.”
Velto continued, “I think under normal real estate contracts, the buyer has to fail to perform in order for the seller to have call for a breach of agreement, breach of contract, correct? That’s how a standard real estate contract works. Once there’s an agreement, the buyer has to default in order for the seller to then move forward and cancel.” But Richards Watson & Gershon had not provided the city with even that minimal protection in the contract, Velto implied, almost as if the firm was working for the hospital rather than the city.
“It seems to me we have an open-ended contract, and I don’t know if that’s legal to have an open-ended agreement,” he said. “I’m not comfortable with what we have here. If that’s really what we have here, I’m concerned because that means no matter what the vote comes out with, we could be back in court for a yes or no.”
Flower simply glared back at Velto.
“I think that if the city fails to perform, that the hospital will have an action against the city,” Velto said. Then with an intensity of emphasis, Velto said, “If it goes to [a] vote, and the vote is a ‘no,’ we better be done. If the vote is a ‘yes,’ then we move forward.” Velto said he wanted a commitment in writing from the hospital to that effect. “I want an amendment in the future” to the existing agreement. “This agreement was not made by a majority of us sitting here,” Velto said.
Ellia Thompson of the firm Ervin, Cohen and Jessup, representing the hospital, said the hospital would be amenable to such an amendment. “We are willing to do that,” she said.
Zuniga then engaged with Thompson on why the hospital had not stood by the original closing or walkaway date on the purchase contract, which has now been extended to November 2021. Thompson justified the November 2021 closing date by stating that the hospital wanted to give itself a full year after the 2020 election to perform all that it would need to do and obtain zone changes, a general plan amendment and environmental certification to proceed. “Those things usually take a good eight, nine months and we wanted to have enough time,” she said. “We thought one year was plenty of time.”
At one point, despite having acknowledged that the hospital had revamped the closing date in accordance with the more recent move to going to an election to approve the sale rather than relying on the now-legally defunct March 2018 council action, Thompson sought to suggest that the original closing date might not have been extended.
“When was the last one [contract end date] and why didn’t it cancel the contract then?” Zuniga asked. “Why are we here today? That new date your putting out…”
“I don’t know that this is a new date,” Thompson said, interrupting him.
Seeing immediately that such a misrepresentation could severely complicate the hospital’s position, Flower jumped in between Zuniga and Thompson to foreclose where that exchange might lead.
“There was an earlier date,” Flower said, correcting Thompson. “I don’t recall what it was. This was the date in the amendment the council approved most recently, November 2021.”
This brought Zuniga’s focus back to Flower.
“Are you saying that this could have ended at that last closing date, and it would have been nulled and voided?” Zuniga asked Flower.
“That is conceivably an option,” Flower said. “I don’t know if I would have recommended it, based on the potential for a lawsuit. I’m not going to…”
“They’re giving us a date right now,” Zuniga said, talking over Flower, “that this is the end date.”
“All I can say is it was never discussed,” Flower said. “I don’t know exactly when that date was, but it was never discussed that the city would attempt to terminate the contract on those grounds. The contract doesn’t just terminate on such grounds, unless the city took an action. There was never any action taken.”
“I’m kind of lost for words here,” Zuniga said, his implication seeming to be that Markman or Flower had failed to inform the council that it had the option to simply walk away from the commitment to sell the parkland when the contract termination date elapsed. “Okay. I don’t want to comment too much on it,” he said. “I’m not sure what the date was on it. I’m kind of thinking the date was 2018, so that was before we [he, Velto and Felix] were even in office. So, at that time, I would have said, ‘Scrap it,’ because at that time I was pretty much done with the whole thing. No one told us that would have nulled the contract. We weren’t told that. You [Flower] weren’t here, so I can’t blame you for that, but I wish someone would have told us more on that.”
During the public comment portion of the meeting, Lois Sicking-Dieter, who is vying against Velto and Stone and former Planning Commissioner Alexander Novikov for mayor, addressed the council with regard to the parkland sale.
Dieter decried the council’s negative characterizations of Benesh. “Your comments at Monday’s special city council meeting regarding Marjorie Benesh being the only resident speaking out about this issue and filing a lawsuit were meant to vilify her, intimidate her and any other residents who are thinking about stepping up to speak truth to power. Both of you are current council members, both of you are candidates for mayor in November. This behavior is unworthy of a council member, unworthy of a mayor.
“I am speaking in regards to the findings and ruling by Judge Cohn yesterday that found the format for the Measure Q question regarding abandoning 4.63 acres of Memorial parkland did not comply with the law and was biased in favor of a ‘yes’ vote,’ Sicking-Dieter continued. “The format issue was fixed by changing the wording to ‘Shall the measure… be adopted?’ Without this it was unclear what a ‘no’ vote meant or a ‘yes’ vote meant. This is important, so a resident’s vote reflects their intention, for or against the measure. In addition, Judge Cohn ruled that the measure question was written biased in favor of a ‘yes’ vote. His findings were that the language about ‘a new baseball field, additional parking and other new landscaping, structures and walking trails’ was uncertain, not guaranteed and is the language of an advocate. These improvements may or may not follow, even if the sale occurs. So he removed it.”
Sicking-Dieter continued, “The judge reminded us that the measure is all about abandoning 12 percent of Memorial Park, so it may be sold at a later date. If it is to be sold is a whole other issue, with public hearings and the sale of the land has to follow the rules of California state laws. First, this measure must get a ‘yes’ majority vote, then go before a new city council and a new city attorney. As you remember, a new city attorney will be selected by the new city council after the November election. It has been said that the interim city attorney, Steven Flower, has an advantage over other lawyers being interviewed, because we saw him in action at every council meeting since last October. However, this is no longer the case, in my opinion. Why? In the past two weeks we have had three city council meetings, two of them special meetings for the measure question, only to have a judge figure it out for the City of Upland, by going to court to hammer out the wording, use of staff and residents’ time, which would be better spent providing services to the public.”
Sicking-Dieter concluded, “In summary, I ask that you approve the measure question as ruled by Judge Cohn and agreed upon by both parties. Marjorie Benesh identified the problem. She was part of the solution. I suggest you look at the person that caused the problem.”
During the meeting, by her body language Mayor Stone seemed perplexed at the fashion in which some degree of sentiment against the manner in which the parkland sale had been orchestrated was expressed from the dais, in particular when that criticism emanated from Velto and Zuniga, with whom she had formed over the last year or so a political modus vivendi. Stone has long grown inured of Councilwoman Elliott’s positioning on issues contrary to her own. City Manager Rosemary Hoerning’s absence from the meeting left Stone seemingly incapable of reining in Velto and Zuniga, both of whom have grown, like Stone, dependent on guidance from Hoerning on policy issues. Substituting on Wednesday night for the vacationing Hoerning was Assistant City Manager Stephen Parker. Parker’s presence at the meeting was barely detectable, as he offered very little in the way of input. On the job since April, Parker appeared too timid to confront Velto, Zuniga or Elliott. Parker’s low profile Wednesday night might have been because he was not around when any of the earlier decisions with regard to the parkland sale were made. When Velto, who is now seeking to displace Stone as mayor, asserted himself with regard to some of the issues under discussion, she could be observed, it seemed, cringing, as if she sensed that Velto was looking to damage her politically by dwelling on the series of decisions with regard to the proposed parkland sale that have been legally challenged, reversed, rescinded or simply abandoned.
On occasion, however, Stone made verbal reproval of her other political rival present in the council chambers, Sicking-Dieter, apparently when Sicking-Dieter reacted physically or verbally to the issues being discussed.

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