Upland City Council Failed To Stem Stampede Toward Memorial Park Sale

In 2017 Upland’s San Antonio Regional Hospital completed a major expansion which involved an outlay of $160 million to create the four-story Vineyard Tower at 999 San Bernardino Road, an addition to the main hospital that included increasing significantly the total number of beds and intensifying the facility’s urgent medical care capability by swelling the number of stations in the hospital’s emergency room.
Prior to the construction of this major expansion of the hospital, drawings and other technical data were provided to the City of Upland’s various departments for their comments to ensure the proposed project met municipal construction and other planning requirements, such as parking. Yet, to date, no additional parking has been constructed to serve the new Vineyard Tower.
At some point, and unknown to the citizenry, the city agreed to sever and sell to the hospital for parking the southern tip of Memorial Park. This parcel represents slightly more than 12 percent of the park acreage, that is 4.631 acres of the park’s total 38.5 acres. It adjoins the existing hospital campus and includes a fully-developed baseball diamond and all of Memorial Park’s San Bernardino Road frontage. This plan was signed off on by the the city’s then-Community Development Director Jeff Zwack and then-Upland City Attorney James Markman of the Richards Watson & Gershon law firm.
Upland citizens were concerned, but they really went into a frenzy when they heard that Cabrillo Park, located two miles west of Memorial Park on 11th Street, was being seriously considered for sale and that several developers had expressed an interest in developing the property. The talk of the day was that a replacement park would be located in northwest Upland just north of the 210 Freeway on former gravel mining property. The locals didn’t go for what they considered to be an ill-conceived and limitedly discussed concept. The plan for the replacement park has been abandoned.
Scheduled to stand for reelection in 2018 was Councilman Gino Filippi, a leading advocate of the various park sale proposals. When that election took place barely six months after the city committed to the Memorial Park sale without first referring the question to the city’s residents, Filippi finished third in that contest, losing his position on the city council. The people had spoken.
As concern mounted over the attempt to downsize Memorial Park to about 33.8 acres, “Parks Are Not For Sale” signs began to appear around town. Now citizens were meeting and discussing the matter. To offset widespread resident discontent with regard to the parkland transaction that the city was contemplating, city officials, including Parks and Recreation Director Doug Story, sought to tap into a state grant program to fund park improvements. Some of the city’s residents were heartened by and smiling over the city’s submittal of an application to obtain an $8 million grant and do extensive renovation to Memorial Park. However, the city’s park improvement grant request was denied by the state because the city had already contracted to sever from the park and sell 4.631 acres of parkland to the hospital. Ultimately, Story resigned and found a position working for another municipality. The smiles were gone. Things had grown serious.
Citizens found fault with the city/hospital contract and disputed the city’s effort to validate the park sale through a filing in San Bernardino County Superior Court. The matter then fell into the hands of Superior Court Judge David Cohn.
The judge refused to validate the sale and ultimately concluded that the city’s residents had the right to initiate legal action to dispute the city’s contractual commitment to sell the parkland. This led to a further determination that the parkland sale could not be legally carried out without a vote of the city’s residents consenting to the sale. This circumstance presented a severe legal and professional challenge to then-City Attorney James Markmen. With Filippi and two other members of the city council – Councilwoman Carol Timm and Councilman Sid Robinson – having been forced off the council in the 2018 election as a direct consequence of the parkland sale controversy, the succeeding city council undertook to remove Markman as city attorney in 2019, which prompted his abrupt resignation.
Seeing the writing on the wall, the hospital’s board asked that the new city council to use its authority to put a referendum on the upcoming November 3 ballot seeking the consent of the city’s residents to approve the sale of the land to the hospital. When the city council agreed to accommodate the parkland sale measure as part of this year’s municipal election, that council action spared the hospital the necessity of conducting an exhausting and expensive signature gathering effort to qualify the measure for voter consideration. The hospital saved itself both time and money by agreeing to cover the cost of putting the measure on this year’s ballot as part of the Upland Municipal Election. In this way, Measure Q stands as the hospital’s initiative, one that furthers the hospital’s agenda rather than being an initiative in the interest of the citizens of Upland.
Following attorney Markman’s resignation, he had been replaced as city attorney by Steven Flower, one of Markman’s colleagues at the law firm of Richards Watson & Gershon.
Flower and Richards Watson & Gershon continued to support San Antonio Regional Hospital in its efforts to acquire the parkland, which included Flower’s drafting of the ballot measure, designated by the San Bernardino County Registrar of Voters as Measure Q. In doing so, Flower authored the measure in such a way that it subtly but persuasively suggested to the voters that the measure deserved to be adopted.
As the matter was moving toward the November 2020 election, many in the city came to recognize that the city, through Flower, had worded the ballot proposal in a way that was intended to prejudiciously favor the passage of the sale. During this tense time, a resident, Marjorie Benesh, objected to the city’s efforts to load the language of the ballot measure with wording in favor of the sale, and filed suit in San Bernardino County Superior Court. Again, Judge Cohn was assigned the matter.
In a panic, Upland city staff and the city council over the immediately following period of five days which included a weekend and two hastily called emergency council meetings scrambled to simultaneously reconsider the language and paradoxically formulate an argument that the language as drafted by Flower was not biased. Judge Cohn, upon considering the ballot language, concurred that the ballot initiative was unfairly rigged in favor of the sale and instructed the city to redraft the initiative in a way that would not mislead the voters. In a hurried fashion, days after the deadline for the submittal of ballot initiative language to the San Bernardino County Registrar of Voters, the city changed the language in compliance with Judge Cohn’s instructions. The redrafted Ballot Measure Q will now go before the city’s voters.
Yet, there are still ballot issues to deal with, largely because of Flower’s unwillingness or inability to think things through and represent the city’s residents. The $4,300,000 specified in Measure Q is not adequate compensation. Simply stated, the hospital should pay the city not only for the property it is acquiring but should also pay the city for damage that is being done being done to the park as a consequence of being reduced from 38.5 acres to 33.8 acres.
By virtue of the sale:
* Access to Memorial Park will be impaired and the remainder of the park will no longer have prominent San Bernardino Road frontage.
* The sale of the parkland will deprive the city and its youth leagues of an existing fully-developed baseball diamond.
* The new boundary of the remnant park will be left scared and mutilated.
* There will be a need for replacement and modification of landscaping, irrigation, curbs and roadways.
* The severing of the 4.631 acres will limit the use of the remainder of the park, and necessitate re-planning of the entirety of the park and remedial construction.
These damages are serious, numerous and costly to repair. They were caused by severing the park into two pieces.
Measure Q as it will be voted upon in November reads: “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?” That is the ballot measure’s complete language. This language eliminates any compensation for the sale of the land to the hospital beyond its sale price, and further instructs the city on how to spend the sale proceeds.
Two separate issues remain – the price of the land and the damages to the remainder. The ballot measure addresses only one of them, the sale. This is just another reason why Measure Q still has so much potential to confuse the voters and cloud the issues relating to the parkland.
There was a stampede to get the parkland sale measure on the November ballot. Flower’s efforts to accommodate Judge Cohn’s instructions occurred under a very constrained period of time. That rushed action is begetting a circumstance in which further rushing will take place.
In the meantime, having been given the opportunity to do so by the city council placing Measure Q on the November ballot, hospital officials have now embarked upon a Madison Avenue-type advertising campaign to promote their plan to solve the hospital’s parking and expansion issues through the city diverting parkland to the hospital. That promotional campaign is a highly stylized and professional effort to induce Upland’s voters to agree to facilitate the most inexpensive way for the hospital to acquire the property, consisting largely of the hospital not paying the city for the damage to the remainder of the park.
Basic questions yet attend the matter. Are the city and the hospital taking the action now under way with a full and comprehensive understanding of what the hospital’s future plans are, or are they lurching from one-self inflicted crisis toward a quick fix that will beget further difficulties down the road? And a second question is whether by severing the 4.631 acres from the existing park is the city sustaining greater damage and loss to the remainder of the park than that represented by the value assigned to the acreage the hospital is acquiring? In other words, is the $4.3 million enough to pay for the intrinsic value of the property as well as enough to pay for the damage to the remaining 33.8 acres of the park? The precise amount of damages that could be sustained has not been fully identified or quantified.
Rush upon rush, with plans hastily thrown together, what is now occurring is a repetition of the poor planning that gave rise to the current misadventure in the first place.
Moreover, the city council, which includes Mayor Debbie Stone and Councilman Bill Velto who are now seeking to remain in office, has yet to fully come to terms with the consideration that the law firm representing the city, Richards Wastson & Gershon, has twice – in approving the initial sale of the parkland and in drafting a measure to confirm that sale with biased language – demonstrated a greater commitment to the hospital than to Upland’s citizens.
All of this falls at the feet of the Upland City Council – Councilman Bill Velto, Councilman Rudy Zuniga, Councilwoman Janice Elliott and Mayor Debbie Stone. Typically, their campaign literature celebrates them as the leadership the voters have been waiting for. Their messages maintain that they can solve problems. What did they do? In the short five-day span between August 21 and August 25, from the time Benesh made her challenge and the time Judge Cohn made his finding that the language of the ballot was rigged, they dumped the issue of what is to be done with the 4.631 acres of Memorial Park into the laps of an unsuspecting electorate. Rather than use the information exclusively available to them as city officials and the wisdom and decision-making prowess they tout themselves as having, with Councilman Bill Velto leading the charge, they turned over to the city’s residents, a large number of whom have no familiarity with the park issues whatsoever, responsibility for making a decision with regard to a highly complex and convoluted matter.
The proposal for the sale has vastly changed. Originally, residents were told the 4.631 acres were to be used for parking. Now that land is slated for what the hospital’s representatives informally say will be a campus of medical buildings, for which there are no known plans. It is unclear whether any plans have ever been submitted to the city. There appears to be no rush toward identifying a future development schedule at the hospital.
Markman, who was at that time the city attorney, approved and recommended a contract for the sale of the park acreage, which was ratified by a 3-to-1 vote of the city council. Markman brought a validation action to head off any challenge to the sale and prevent future objections and litigation, assuming that no effort to oppose the validation would be made. When two separate responses to the validation action were filed, Judge Cohn ruled the validation action was an improper procedure and dismissed it on those grounds. To make matters worse, the hospital’s legal counsel approved the contract. As a matter of real estate transactional protocol, verification of whether a seller has marketable title is always of concern to the buyer. The hospital’s attorneys should have undertaken an adequate investigation to make sure the city had marketable title so the sale could be carried out. That does not appear to have happened in this case. Here, both parties, the hospital and the city, created a melange of incompetence, misleadership and mismanagement, based, perhaps, on the hospital’s attorneys’ belief that the city was above the law.
Unfortunately, at this point, city and hospital leaders do not seem to have engaged in critical analysis, nor to have drawn adequate conclusions from the episode relating to the hospital and parkland that grew out of the poor planning engaged in by city management, then-City Manager Bill Manis, then-Community Development Director Jeff Zwack, then-Parks and Recreation Director Doug Story and then-City Attorney Jim Markman, not to mention hospital management.
In March 2018, the rationale cited in the city staff report relating to the sale stated that the 4.631 acres was needed to provide a parking lot to accommodate the influx of patients as a consequence of the Vineyard Tower expansion. Now, at this juncture, hospital officials say that increasing parking is no longer a consideration, and that “the primary focus” for the land acquisition “is the necessary growth of San Antonio Regional Hospital to meet the healthcare needs of this community.” This implies that the hospital is contemplating in the relatively near term further expansion. At this time nothing has been presented to the city to indicate that any such expansion is on the horizon. Moreover, in 2011, when the hospital was preparing to embark on the now-completed expansion, Moody’s Financial Service had given the hospital a bond credit rating of AAA, a top-of-the-line ranking. In 2013 Moody’s revised the hospital’s credit rating to AA. In 2014, the hospital’s credit rating dipped to A. By 2016, the rating stood at BBB. In 2018, the rating had declined to BB, and in 2019 had scaled down to B, which is one grade above junk bonds. As of June of this year, the rating yet stands at B. The reasons Moody’s gave for the downrating that occurred subsequent to 2017 was that the hospital had overexpanded itself with facilities that outran its patient demand, that the hospital’s infection rates were climbing and that its Medicare reimbursement percentages were dropping.
All of these factors are strong indicators that the hospital does not have access to sufficient capital to engage in any further yet-to-be-fully-envisioned-and-determined expansion, at least in the near or middle term. Indications are, rather, that the hospital is now engaged in land banking to obtain and hold onto property that at some indefinite point in the future will be useful.
It would thus appear that the acquisition of the 4.631 acres that is at stake in the Measure Q vote is an effort by the hospital to land bank for some future and yet-to-be-fully-envisioned-and-determined expansion. The hospital is engaging in this acquisition as a preamble to some unidentified construction project in the future, and wants to grab land now while it can do so at a bargain basement price. Many Upland residents find it baffling that city staff and the city council appear to be willing to accommodate the hospital in this acquisition at the expense of the residents of the city who value the parkland as a precious recreational use.
If sold, our parks are a cash cow for a financially-challenged city. Once any parkland is sold, that sale is irrevocable. And while it may be represented that the money received by the city in exchange for that property is to be committed for park improvements or the purchase of other parkland to replace it, the reality is that once public memory of what has occurred fades, city officials are free to divert the proceeds from the parkland sale to other uses, such as defraying the cost of escalating city pensions.
An example of this exists in the not-too-distant past, when former Mayor John Pomierski engineered the sale of approximately 20 acres of parkland on the north side of 18th Street between Pioneer Junior High School on the east and the Chaffey Communities Cultural Center on the west. The proceeds from that sale disappeared into the dark hole of city finances and no substituting park was ever created. More recently, citizen resistance saved Cabrillo Park from a similar fate.
In conclusion, it is obvious the city council has failed to utilize the skills and talents that its members tout themselves as possessing. At this point, city staff has essentially absented itself. Well-meaning attorneys in the presence of Judge Cohn have attempted to clarify the matter. The language of Measure Q as it has now been redrafted falls short of informing voters of what its actual implication is, which entails the city going along with the hospital’s open-ended and unclear future intentions. The hospital has not given any firm date with respect to a future expansion schedule, nor what that expansion will entail. Neither is economic financing available for such an undertaking by an institution with a credit rating that classifies any financing instruments it might issue at one level above junk bonds. If Measure Q passes, the city will have incurred a portion of the burden of defraying the cost of meeting the hospital’s future construction requirements. This will be done by means of a low land acquisition cost up front, what is essentially city taxpayers’ subsidization of the hospital.
It is unconscionable to think that the hospital management and lawyers are suggesting that the money to purchase the park be used to solve and pay for the damages to the remainder of the park left over after the 4.631 acres has been torn from the main body of the park. Hospital management and city staff have done a poor job in assessing the true costs and impacts of depriving the city of parkland that has been in existence for 81 years. Instead, the hospital is embarking on a wholesale land grab, all to the detriment of Upland’s citizens.
The city’s failure to adequately plan for development and expansion had been demonstrated two decades ago. When the city failed to make clear ahead of time what the lines of responsibility were for flood control infrastructure at the Colonies project in the northeast quadrant of the city, that debacle cost the county’s and city’s taxpayers $102 million.
The Sentinel Recommends That Upland’s Residents Vote No On Measure Q.

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