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PCD/GPC 92-02; Olivenhain Elementary School; Planning Comm Determ/Gen Plan Consis (PCD/GPC)
I. >LICATION RECEIVED: JULY 7. 1992 STAFF REPORT DATE: AUGUST 19, 1992 TO: PLANNING COMMISSION FROM: PLANNING DEPARTMENT SUBJECT: PCD/GPC 92-2 - OUVENHAIN ELEMENTARY SCHOOL - Request for a General Plan Consistency Determination prior to the proposed acquisition by the Encinitas Union School District of a 9.45 acre school site located at the southeast corner of Avenida La Posta/Calle Acervo and Rancho Santa Fe Road in the R-l-10 zone in Local Facilities Management Zone 11. RECOMMENDATION That the Planning Commission ADOPT Planning Commission Resolution No. 3427 APPROVING PCD/GPC 92-2 making the determination that the school site proposed for acquisition by the Encinitas Union School District is consistent with the General Plan based upon the findings and subject to the conditions contained therein. II.PROJECT DESCRIPTION AND BACKGROUND As required by Section 21151.2 of the Public Resource Code (PRC) and Section 65402(c) of the Government Code, the Encinitas Union School District has notified the City of its intention to acquire an elementary school site (Olivenhain Elementary School) within the City's boundaries. The PRC section requires the Planning Commission to either oppose or approve of the acquisition. The Encinitas Union School District Service area encompasses the southeastern portion of Carlsbad including all of Local Facilities Management Zones 11 and 12, 23 and a portion of Zone 6. The 9.45 acre parcel is located east of Rancho Santa Fe Road, adjacent to the City's southern boundary, and within the proposed Shelley subdivision. The Planning Commission is required to review the proposed location, make a General Plan consistency determination, and notify the school district of its decision within a specified time period. Upon notification by the Encinitas Union School District that the proposed site has been acquired, a General Plan Amendment will be processed to add the school site to the GP Land Use Map along with a Conditional Use Permit ensuring an adequate project design and the provision of necessary public improvements. PCD/GPC 92-2 OLIVENHAIN ELEMENTARY SCHOOL AUGUST 19, 1992 PAGE 2 The proposed school site is located in the R-l-10 zone at the intersection of Rancho Santa Fe Road and future Calle Acervo. The 9.45 acre site is a part of the proposed 114 acre Shelley subdivision map (CT 90-3) currently under review by the City; the proposed school site encompasses approximately 26 of the proposed 256 residential lots. Since the Encinitas Union School District is negotiating with Mr. Shelley for the purchase of the site, the proposed school has been considered as a project alternative in the Shelley Draft Environmental Impact Report. III. ANALYSIS Planning Issues 1. Is the proposed school site consistent with the General Plan? DISCUSSION General Plan Consistency The proposed school site within the City's boundaries is one of three alternative locations reviewed by the Encinitas Union School District for the proposed school; the other two sites are located in Encinitas. Although the site is not designated on Carlsbad's Land Use Map as a future school site, the Land Use Element of the General Plan stipulates that a land use proposal would clearly be consistent with the General Plan if it would contribute to achieving the objectives established for the area by the General Plan. The proposed school site location within a residential zone is consistent with the Land Use and Public Facilities Elements since it provides for a balance of public and private land uses within convenient and compatible locations and assures that adequate public schools are available to meet the needs of existing and future student populations. The proposed school site is also consistent with the Circulation Element since required street improvements including sidewalks and traffic signalization will provide for adequate traffic and pedestrian safety. In summary, the proposed school site is consistent with the General Plan Land Use and Public Facilities Element goals and objectives', therefore, staff recommends that the Planning Commission make the required General Plan Consistency Determination and not oppose the acquisition of the school site. IV. ENVIRONMENTAL REVIEW The Planning Director has determined that the proposed school site has received prior environmental review through the certification of an Environmental Impact Report by the Encinitas Union School District in July, 1991. PCD/GPC 92-2 OLIVENHAIN ELEMENTARY SCHOOL AUGUST 19, 1992 PAGE 3 ATTACHMENTS 1. Planning Commission Resolution No. 3427 2. Location Map 3. EUSD Letter dated June 23, 1992 AH:lh:vd July 23, 1992 City of Carlsbad OLIVENHAIN ELEMENTARY SCHOOL PCD/GPC 92-2 ^ROGERS ENGINEERS 4 CIVIL ENGINEERING . LAND SURVEYING Job No. 922.08 . VIA CERTIFIED MAIL June 23, 1992 Mr. Michael Holzmiller, Planning Director City of Carlsbad 2075 Las Palmas Drive Carlsbad, California 92009 Re: Proposed Olivenhain Elementary School Encinitas Union School District Dear Mr. Holzmiller, In accordance with the provisions of Government Code Section 65403 and Public Resources Code Section 21151.2, the enclosed plan is submitted for your review. Encinitas Union School District intends to purchase the property for this school from Mr. Daniel T. Shelley; as a result of this purchase, Mr Shelley will be causing a revised map of C.T. 90-3/P.U.D 90-4, excluding the school site, to be prepared and submitted for your review. You have previously considered this site as part of your review of the "Draft Environmental Impact Report for the Proposed Olivenhain Elementary School", SCH #90010209, prepared by A.D. Hinshaw and Associated in May 1991; it was identified as "Alternative Site No. 2". Please note that P.R.Code Section 21151.2 requires your report to the Board of Trustees of Encinitas Union School District to be made within 30 days of your receipt of this letter. We are anxious to assist you in any way we can on this project, and trust that you will contact us immediately if you require additional information. Thank you for your assistance. Very truly yours, ROGERS ENGINEERING cc: Gene Fredericks; Encinitas Union School District f-r-e^\ Lucy Padilla; Leidenfrost/Horowitz & Associates x Bruce W. Beach; Jennings, Engstrom & Henrikson A:\208\922.08E 27393 Ynez Road . Suite 154 . Temecula, CA 92591-4605 . Telephone (714) 676-2529 . FAX (714) 699-3591 NOTICE OF PUBLIC HEARING NOTICE IS- HEREBY GIVEN that the Planning Commission of the City of Carlsbad will hold a public hearing at the Council Chambers, 1200 Carlsbad Village Drive, Carlsbad, California, at 6:00 p.m. on Wednesday, August 19, 1992, to consider approval of a request for a General Plan Consistency Determination prior to the proposed acquisition by the Encinitas Union School District of a 9.45 acre school site located at the southeast corner of Avenida La Posta/Calle Acervo and Rancho Santa Fe Road in the R-l-10 zone in Local Facilities Management Zone 11, and more particularly described as: Portion of Lots 13 and 14 of the subdivision of the Rancho Las Encinitas in the County of San Diego, State of California, according to map thereof 848 filed in the office of the County Recorder of San Diego County, Those persons wishing to speak on this proposal are cordially invited to attend the public hearing. Copies of the staff report will be available on and after August 13, 1992. If you have any questions, please call Anne Hysong in the Planning Department at 438-1161, ext. 4477. If you challenge the Planning Commission Determination and General Plan Consistency in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice or in written correspondence delivered to the City of Carlsbad at or prior to the public hearing. CASE FILE: CASE NAME: PUBLISH: PCD/GPC 92-2 OLIVENHAIN ELEMENTARY SCHOOL AUGUST 6, 1992 CITY OF CARLSBAD PLANNING COMMISSION AH:vd OLIVENHAIN ELEMENTARY SCHOOL • • Carlsbad Journal Decreed A Legal Newspaper by the Superior Court of San Diego County Mail all correspondence regarding public notice advertising to W.C.C.N. Inc. P.O. Box 230878, Encinitas, CA 92023-0878 (619) 753-6543 s Proof of Publication STATE OF CALIFORNIA, ss. COUNTY OF SAN DIEGO, I am a citizen of the United States and a resident of the county aforesaid; I am over the age of eighteen years, and not a party to or interested in the above entitled matter. I am principal clerk of the printer of the Carlsbad Journal, a newspaper of general circulation, published weekly in the City of Carlsbad, County of San Diego, State of California, and which newspaper is published for the dissemination of local news and intelligence of a general character, and which newspaper at all times herein mentioned had and still has a bona fide subscription list of paying subscribers, and which newspaper has been established, printed and published at regular intervals in the said City of Oceanside, County of San Diego, State of California, for a period exceeding one year next preceding the date of publication of the notice hereinafter referred to; and that the notice of which the annexed is a printed copy, has been published in each regular and entire issue of said newspaper and not in any supplement thereof on the follow- ing dates, to-wit: NOTICE OFPUBLIC HEARING . NOTICE IS HEREBY GIVEN that the Planning Commission of the City of Carlsbad will hold a public hearing at the Council Chambers. 1200 Carlsbad Village Drive, Carl- sbad. California, at 6:00 p.m. on Wednesday. August 19.1992. to con- sider approval of a request for a General Plan Consistency Deter- mination prior to the proposed ac- quisition by the Encinilas Union School District of a 9.45 acre school site located at the southeast corner . of Avenida La PostwCalle Acervo and Rancho Santa Fe Road in the R-l-10 zone in Local Facilities Man- agement Zone 11. and more particu- larly described as: Portion of Lots 13 and 14 of the subdivision of the Rancho Las En- cinitas in the County of San Diego. State of California, according to map thereof 848 filed in the office of the County Recorder of Son Dicp.o County. Those persons wishing to speak on this proposal are cordially in- vited to attend the public hearing. Copies of the staff report will be available on and after August 13. 1992. If you have any questions, please call Anne Hysons in the Planning Department at 438-1131. ext. 4477. If you challenfle the Planning Commission Determination and General Plan Consistency in court, you may be limited to raising only those issues you or someone else raised at the public hearing de- scribed in this notice or in written correspondence delivered to the City of Carlsbad at or prior to the public hearing. Case File: PCD/GPC 62-2 Case Name: Olivenhein Elemen- tary School CITY OF CAHLSBADPLANNING COMMISSION August 06 OLIVENHAIN ELEMENTARY SCHOOL .19. .19. .19. .19. 19 92 I certify under penalty of perjury that the foregoing is true and correct. Executed at Carlsbad, County of San Diego, State of California on the 6th day of August, 1992 Clerk of the Printer CJ 3102: August 6.1992 SB NO ACCESS CLEAR SPACE ESMT. |* OPEN SPACE ESMT •->J"-''V CHANGES BLK OLD NEW Y* CUT •sr or 63 39 .54 £7 66 "7Z 79 83 ff.28 STOP j- e&ZWIO uios*$,?* 6T.6P 9 + fPOK P/ta&fS 7g 4/S& 98 •4J04- £09 2Z5 79 79 80 83 i 85 BS £5 SI 270\ ,227 /as we. es**to--'m& DETA! L "A" - NO SCALE B-RM72 L 108.87 C-R-228 L 163.07D-N32*W 103.24 E-R=20F-N32°30'W 138.80 G-R=642 L 50.25 H-N36°59'05"W 225.12 J- 5.47*22' 14 W 40.20 MAP 8526-VILLAGE PARK NORTH COUNTRY UNIT NO.2 MAP 8465-VILLAGE PARK NORTH COUNTRY UNIT NO. I MAP 848- RHO LAS ENCINITAS •jjy- f l» RES. FOR PUT. ST.SHT. 2 VS r= ioo' CHANGES BLK »/ OLD P9t»f~ffZ 4-IO 30,32 1 NEW /-27 18-34 iAHEAZ.CHM& YR */ 88 ?£ CUT ^I&4S f£f£,ff RECEIVED APR 0 6 1988 c.c. 20 >' /»0 '•*T SHT. 2 J^' c rfe' C\) ^5- SHT .«*, .Jo '^ t.8, .o'b:4*. **$ V^'# ^**o^^MORNINqv •*« '^ SUN A- CT. Vtf 'Wo>/?A//, *?4- su .c s. 0.56 AC .•> \^ 54 SHT. 2 f. :/"?. /\l\ p+ « In o vP CO 2 / °-5iAC <3^ 210.6.5 ^-/ ~co ntf> ro =53 I I.20AC. I (90. 60 *v?*s ^/ •^7^* w w ^• '6 66 56 *2* 31- <l. ; 5 W1 1-^ ^ •" "3*?«v >*08J y1 ^V^£LA°«r7rS (^s) 57 0i/i wir- 104 1 © ?/ ® . / ^~ic^_^«»-. ^/ ... ^-^ OB/ X-X /Of -^^ * ^^(?*) 58 010 IOI.TS 109. *<> (30) 59 109 / »0^. ^)60 • 0in*- 109 /<* •**. f 62 ^o» / — .3(33) . ' % - IBE.30 . 6! ~~^ In X \ «o cd (32) t5> \ — s <* *o *. /5fl.9^/ '^/ 6O «T *M<n -*• ^~ Orv ^^^ >f V 68-34 T> V••^•^ O-r» <r oi 51 (22) 95. M — ' SPRfNGWOOD g 94 wN er>o?4 50 (S) <»4.M J r- %i> ^~0 PU 49 (20) _ 94 Ou> «»., «~ 48 q^. i4 _ W3* x "?3 0\a vo- 47 d*) <?3J3 ____— i^ "~^ L4'l4" W ?3 o-u> 0«co ™" 46 (5) 93.13 __ •^••••^^^•^^^""'•^^ A. 1 1 39.7/^^S <"' 45 u*) 117.4L i i * >• r1 6« ^>>M4'00'07"V/ 85. If .JS /<o ^26 *£?3. ••«fc */. '57.77 */ (V7«06 ^p_-'£ ^ :*RES FOR" PUT. ST. 9-7.-ST ^Ae.3.^ 0.96 AC - 318.55171-66 Vd $^~<sW<sTu. j o rv>.~/ PAR. 2 /S»iffi?? CHANGES 3LK 43 "sa* OLD 50 SAf1£ KCWWCUT '-34 84- 7-60 85 18 2/7 39 STCLtO 90 90 90 12 I8IZ &7V 5523 56/8 — OFFER TO DEDICATE /;* NO ACCESS DETAIL SCALE P. 10' 11 1991 MAP 8H8 - RHO LAS ENCINITAS 326 - COLONY OLIVENHAIN CARLSBAL • COASSESSOR *• OPEN EASEMENT 3AVENIDA JOAQUIN OPEN ^,-^c. EASEMENT VILLAGE PARK JR. HIGH SCHOOL 435.80 % WI-C.IN iKAC |^ EASEMENT MAP 10557 - CO OF City of Carlsbad Department PLANNING COMMISSION NOTICE OF DECISION September 23, 1992 Encinitas Union School District 101 S. Rancho Santa Fe Road Encinitas, CA 92024-4308 Attention: Gene Frederick RE: PCD/GPC 92-2 - OLIVENHAIN ELEMENTARY SCHOOL / At the Planning Commission meeting of August 19, 1992, your application was considered. The Commission voted 7-0 to APPROVE your request. Some decisions are final at Planning Commission, and others automatically go forward to City Council. If you have any questions regarding the final dispositions of your application, please call the Planning Department at 438-1161. MICHAEL J>HOLZMILLER Planning Director MJH:AH:vd Enclosed: Planning Commission Resolution No. 3427. 2O75 Las Palmas Drive • Carlsbad, California 92OO9-1576 • (619)438-1161 City of Carlsbad Engineering Department August 6, 1992 John B. Rogers Rogers Engineering 27393 Ynez Road Suite 154 Temecula, CA 92591-4605 PCD/GPA 92-2 OLIVENHAIN ELEMENTARY SCHOOL The City Engineer and staff wishes to make all parties concerned with this project aware of the City's issues of concern with the site design that was submitted to the City for a preliminary review.The primary concern is one of safety for the pedestrian and vehicular traffic that will be entering, leaving and passing the site. These issues follow: 1. The one-way travel with a separate entrance and exit should be changed to a single access point with two-way travel. The access point should be opposite a regular street preliminarily named Corte Cadiz on the Shelley Carlsbad proposed tentative map CT 90-3. As a policy, the City is opposed to one-way circulation and separate entrance and exit points. The one-way access points in this case is of particular concern because the proposed location is on the inside of a horizontal curve with a proposed radius of 650 feet. 2. The eastern most access (exit) shown on the preliminary site design results in a serious sight distance deficiency for exiting vehicles. The deficiency is inherent to the location being on the inside of the curve mentioned above.The sight line passes across the proposed offsite parking lot. Parked cars and vans on the lot or on the adjacent street at this location would severely impact safe sight distance. Any landscaping over 30 inches in height on the parking lot or parkway strip would also impact safe sight distance. 3. We have a concern for the safety of pedestrians crossing Calle Acervo to enter the school site due to the same inside curve mentioned above. Since most of these pedestrians will be children of elementary school age this concern requires a satisfactory resolution. 2075 Las Palmas Dr. • Carlsbad, CA 92009-1576 • (619) 438-1161 • FAX (619) 438-0894 John P. Rogers August 6, 1992 Page: 2 We are recommending approval of the purchase of the site by the school district under the following conditions: 1. Prior to approval of any permits related to this project, including but not limited to, an offsite grading permit for a stockpile the following offers of dedication of easements for public street purposes shall be made along the schools frontage: A. For Calle Acervo, 42 feet wide for the southerly half street width of 30 feet plus 12 feet along the alignment as shown on the proposed tentative map for the Shelley Carlsbad project, CT 90-03. B. For Rancho Santa Fe Road, 21 feet wide to complete the easterly half street width of 51 feet for a major arterial street, based on the existing center line remaining. 2. Prior to occupancy as a public school the following public improvements shall be completed: A. Full right-of-way width grading for Calle Acervo along the project frontage. B. Half street plus 12 feet of paving improvements on Calle Acervo from Rancho Santa Fe Road to the project boundary. Improvements shall include but not be limited to curb, gutter, sidewalk, street lights and paving section. A temporary turn- around will be needed if Calle Acervo is not constructed easterly beyond the project. If needed such turnaround shall be provided to the satisfaction of the City Engineer. C. Half street improvements plus any required overlay of paving on Rancho Santa Fe Road from Calle Acervo to the southerly project limits together with such transition sections as may be needed to match existing pavement all to the satisfaction of the City Engineer. D. A fully actuated traffic signal at the intersection of Calle Acervo and Rancho Santa Fe Road. John P. Rogers August 6, 1992 Page: 3 For any comments or questions you may contact me at (619) 438-1161 extension 4500, or FAX (619) 438-0894. nm Davis ASSOCIATE ENGINEER Lloyd B. Hubbs Robert T. Johnson, Jr. Anne Hysong ^ Gene Frederick Oscar E. Leidenfrost RCU BY:XEROX TELECOPIER 7010 ; 8- 7-92 8:39flM ; 6194346367-* 6194380894;« 2 'AUG-*7-92 FRI 7:37 CITY 03RNEY FAX NO. 619^367 P. 02 AUGUST 6, 1992 TO: ASSISTANT PLANNING DIRECTOR FROM: City Attorney DESIGN REVIEW BOARD AND PLANNING COMMISSION AGENDA/AUGUST 19, 1992 DESIGN REVIEW BOARD/SEA BREEZE REALTY/RP 83-14(A) Page two, paragraph two, of the staff report refers to the requirement of a coastal development permit under C.M.C. section "21.81.010(b) ."• The citation to this section is not correct. The correct citation is C.M.C. section 21.81.030(b)(2). Condition No. 14 needs to be reworded. The condition makes it sound like the city has an obligation to issue an encroachment permit. The condition should be reworded to state that this approval is contingent upon the approval of Encroachment Permit No. PR 4.58, and the approval of this amendment will be null and void if the permit is not approved. The condition should also state that a building permit shall not be issued unless Encroachment Permit No. PR 4.58 is approved. OLIVENHAIN ELEMENTARY, SCHQOL/PCD/GPC 92-2 • Please delete all references in the staff report and in the resolution to Public Resources Code section 21151.3 because that section was repealed in 1991, You may retain any comments from the EIR if they are relevant to your determination of general plan consistency. KAREN J. IHIRATA Deputy City Attorney afd c: Planner Robert Green Planner Mike Grim Planner Ann Hysong Senior Management Analyst Hoder ENCINITAS UNION SCHOOL DISTRICT ,. Office of the Manager of Facilities ; MEMORANDUM TO: Anne Hysong, City of Carlsbad DATE: August 4, 1992 FROM: Gene Frederick, Encinitas Union School District SUBJECT: Acquisition of Olivenhain Elementary School Enclosed is a copy of the letter I received. In answer to your question regarding acquisition, NO acquisition is necessary, please see attached copy of the judgment. TO: ANNE HYSONG AUGUST 4, 1992 FROM: JIM DAVIS VIA PRINCIPAL LAND USE ENGINEER PCD/GPC 92-2 OLIVENHAIN ELEMENTARY SCHOOL The Engineering Department can recommend approval of the purchase of the Shelley property as a site for the proposed school under the following conditions: 1. Prior to approval of anv.permits related to this project including but not limited to an offsite grading permit for a stockpile the following offers of dedication of easements for public street purposes shall be made: A. For Calle Acervo, 42 feet wide for the southerly half street width of 30 feet plus 12 along the alignment as shown on the proposed tentative map for the Shelley Carlsbad project, CT 9 • ~ - B. For Rancho Santa Fe Road, 51 feet wide to complete the easterly half street width of a major arterial street, based on the existing center line remaining. 2. Prior to occupancy as a public school the following public improvements shall be completed: A. Full right-of-way width grading for Calle Acervo along the project frontage. B. Half street plus 12 feet of paving improvements on Calle Acervo from Rancho Santa Fe Road to the project boundary. Improvements shall include but not be limited to curb, gutter, sidewalk, street lights and paving section. A temporary turn-around may be needed if Calle Acervo is not constructed easterly beyond the project. If needed such turnaround shall be provided to the satisfaction of the City Engineer. C. Half street plus te-feet-ef paving on Rancho Santa Fe Road from Calle Acervo to the southerly TSiipTfimits together with such transition sections and pavement overlays as may be needed to match existing pavement all to the satisfaction of the City Engineer. 'The pavement width may be reduced by the City Engineer in order to obtain a better and safer project^. D. A full intersection traffic signal at Calle Acervo And Rancho Santa Fe Road. City of Carlsbad Planning Department July 30, 1992 Encinitas Union School District ATTN: Gene Frederick 101 S. Rancho Santa Fe Road Encinitas, CA 92024-4308 SUBJECT: ACQUISITION OF OLIVENHAIN ELEMENTARY SCHOOL SITE PLANNING COMMISSION DETERMINATION PCD/GPD 92-2 Dear Gene: This letter is to inform you that a tentative date (August 19, 1992) has been set for the Planning Commission to review the Encinitas Union School District's proposal to acquire a 15 acre school site within the City of Carlsbad. Prior to final scheduling of the project for hearing on this date, there is one issue requiring clarification. The Olivenhain Elementary School EIR indicates that the detachment of this school site from the City of Carlsbad and annexation into the City of Encinitas might be necessary. Please clarify that it is not your intention to annex the site into the City of Encinitas. Your response must be received by the Planning Department within seven (7) days to insure Planning Commission review of the subject proposal on August 19, 1992. If you have any questions, please call me at (619) 438-1161, extension 4477. Sincerely, ANNE HYSO Assistant Planner c: Robert Green Rogers Engineering Brian Hunter John B. Rogers 2733 Ynez Road, Suite 154 Temecula, CA 92591-4605 AH:lh PCD922.ttr 2O75 Las Palmas Drive • Carlsbad, California 92OO9-1576 • (619)438-1161 CIVIL ENGINEERING LAND SURVEYING & sJob No. 922.08 July 2, 1992 Encinitas Union Schoc. District Proposed olivenhain Elementary School city Requirements, On- and Off-site Improvements Tuesday, July 7, 1992, 9!00 AM City of Carlsbad Community Development Office 2075 Las Palmas Drive, Carlsbad -••'-•- Lloyd Hubfos, City Engineer, city of Carlsbad Gene Frederick, Managejr of Facilities, Encinitas Union School District Oscar Leidenfrost, Leiflenfrost/Horowita & Associates, Project Architect Dan Shelley, Property Owner Chuck DuVivier, Property owner's Representative Ray Martin, Rick Engineering company, property owner's civil Engineer John Rogers, Rogers Engineering, school District/s civil Engineer "-. have invited Mr. Michael Holzmiller, Planning Director, City f Carlsbad, to attend or send a representative, but have not yet eceived a reply, I j 7 -»jge call Rogers Engineering if you have a conflict with this Ing. ! CC: Mr. Holzmiller, City of Carlsbac 27393 Ynez Road . Suite 154 . Temecula, CA 92591-4605'. Telephone (714) 673-2529 . FAX (TV.. SS9-3591 VO 669 T tt :i?680S£t?ST9 669 §21151.1,PUBLIC. RESOURCES CODE , ..'•(9)--Exclusively treats less than 3,000 pounds of hazardous waste per day in a thermal processing, unit operated in the absence of open flame, and submits a worst-case health risk assessment of the technology.to the State Department of Health Services for review and distribution to the interested . public.: *..This assessment shall be prepared in accordance with guidelines set forth in the Air Toxics Assessment Manual of the California Air Pollution Control Officers Association.. •'••.•• .•,-/. c -s-:"t ; '" (10)'Exclusively burns less'than 1,200 pounds :of infectious waste per day, as defined in Section.?' 25117.5 of the Health and Safety Code, on hospital sites. • '. -, . .-,-\ • '. .;.,-. -,.v...-,. (11) Exclusively bums chemicals and'fuels as part of firefighter training. • . • '"••' "•'.';' • (12) Exclusively conducts open burns .of explosives subject to the requirements of the local or regional air pollution control district and in compliance with OSHA and Cal-OSHA regulations.. "• (13) Exclusively conducts onsite burning of less than 3,000 pounds per day of fumes directly from • a manufacturing or'commercial process. ;..-.' \. ":""• »•..:• '.?•",• •'. • £-"••• •'<••'.- "•>'••.• •• ':'••-.;!', " ';-3;';^'r •';! ^ £?; •<*>•'•• ••-. y-'-":"1'' ^^.-"" •-:'::y-.^, >. • ;.•••!-';;>."<,;••.'•;'< .-••J.'.\- \t:- •".< . :.,,,.;7,.. ..; <: « • ;,.,:,ry;.i /:''.,'. V-? ,Y,'~- I :-,.-••.>• ,'"'; ,rT'-::-. :,•}'"•;'•'-' • •. > "•- ;'-< ' •.' ''.. . -1 '>t'. '•''><';' '-, J ! .(dJ-Subdivisioni(a),does notapply to anjrproject for. which the State'Energy Resources ConservaTO • tion and Development (Commission has' assumed ••jurisdiction^ .under, Chapter:, 6 (commencing with-j • Section 25500) of Division 15.- /- ^ " -"" T'~ ' "'^ "-'^Z-, r.'.,'•' •.,."- ;>; ..', .,,.,.-,* ^v" ' .(e).This section. does•• not exempt any, project from any other requirement of this division. Jifornia legislatit § 21151.2.- School.site proposed acquisition or addition; notice to planning commission; -. - . .-•'-" -•' ..ration; reporfv^i.'!'.,'-'..-"^-^ -'"•.-.> -.<:•,-.• -"VV •• i-- , -*.: '• ' l-> '•'< .';- investi- .••__. •• _:.. school;.'siferqrV^. fctto^™no,tie,e;:3a,'writing-of~tJ^iL>. r3n^elu^io^hW1n^slia1?%e: propose^ slte'and^Mir^^ of the:propertyIfor.;aJ5 additionttio a'preseni school sitej'theiggyerning-bqardjg'f the schoolidiatrict'shalli); p&^ '.,, •' ;.-. •'. (Added by Stats.1987,-c: 1452, §-533.),-, " " • 1987 Legislation .... ^. .—r.-"--^"-'^,..".,.-.' • Legislature further finds and declares that, in order to do so,: ' ' : Section 1 of Stats.1987, c. 1452,! provides': i" V:-'.i..f:. AVt-« .jt.js necessary'to amend or repeal many provisions of the -• • ' • -"Section. 1.;.. The Legislature finds and declares that,, in -±(i; Education Code,. . •-,....,-. .',- •'. : -: .".;,., .-;j-;f; " .--. 1972,-th^people of the^state, adopted' an amendment to -j T'-Whenever'in'this act a power, authorization, or duty of a ''".' ' • Sect,on,,14 of Article IX of the Cahforma Constitution, v—^ ( Q mi £ county board of education,": '' ' which permits the Legislature to authonze the • governing :-r--. " •"- 1.° • , 5 ' • ' . . ' , .'.:••b^rds of'school-districts'to'initiate'and'carry ;on any'. ot county office , of education, ,s repealed ^or otherwise . programs,, activities, .or' to 'otherwise act in 'any -manner/.-i.:<>*!eted by amendment, it is not the intent of the Legislature which is not in connict.with the;laws,and purposes for vbto proh'b't the board or office from.actmg as prescribed by . . which school districts are .established. .^«--(!'-'r'^-.v.,'-T.'- •:'V-'-'1!16-deleted-P110™'0118- Ra*her. !t is the intent ..of the-.. '•It isfthe intent of the Legislature, in enacting this'act,1 to.,-53Legislature,-{hat the-school district governing boards, coun- ... ., unplement more fully, for the school districtvcounty boards •';;«*• boards of .education, and county supenntendents of ..,.,.- ..-. of education;'and the county offices'of education^in.Califor-™schools,'respectively, shall have the power, in the absence, of—.,.....,, nia,'the-intent of the'people in adopting -the amendment of;;S. other; legislation, to so act under the general authority ;of; . ..-..,:. Section.Mof Article IX of.the.California-Constitution.tThe>:^Section_.35160 of the Education Code." -• :;/'.'. 'f •?•«?•>f}^ - . --. ..._ ^ § 21151.3. Schoolsite acquisition or construction; 'approval,of^^environmental impact reporter- \-i__ ' .:/ :V.r" negative,declaration;KhasEardous air": emissions; acutely hazardous air,emissions- No environmental impact, report,or negative declaration shall be approved for.any project involving the purchase :of. a schoolsite. or the ".construction of > new, elementary or secondary school by a> school"-;.• district unless'both of the f9llowing;occur: (";•."-••'' '-~-J- "•',-', •,.-,', •. • • •; -.'. ""•''./ ''~''; •'?&"• ''-. - :' Additions or Changes Indicated by underline; deletions by asterisks * * •*; !,.. .-- --- -• - -.-.-, PUBLIC RESOUR( : (a) The lead agency consulted with the city proposed schoolsite is pollution control distric facilities within' one-fo anticipated to emit has (b) The governing b< (1) Consultation ideni (2) Those facilities ex actual or potential enda; school. (c) As used in this se • (1) "Hazardous air er list required to be prep Health and Safety Code (2) "Acutely hazardoi an acutely hazardous mi Code. (Added by Stats. 1988, c Hlitorical and 1988 Legislation ' Section 16 of Stats. 1988, c. ' "If any provision of this person or circumstances is he) §.21151.41 Constructio able antic impact re No environmental imp< the'construction or alte reasonably be anticipate - 21151.3 unless both of tl (a) The lead agency consulted with the schoo the school. '" (b) The school district to the proposed approva (Added by Stats.1988, c. § 21151.5. Time limits tions Each local agency shall completing and certifyin declarations, for projects only to those circumstar ordinances or resolutions but all'* * * limits shall - the project is received ar may be deemed incompk resolution. - 1 The ordinances or reso the time period in the e\ applicant consents thereto (Amended by Stats.1987, Additions or c The Planning and Zoning Law (b) The five-year capital improvement program shall indicate the location, size, time of availability, means of financing, including a schedule for the repayment of bonded indebtedness, and estimates of operation costs for all proposed and related capital improvements. The five-year capital improvement program shall also indicate a schedule for maintenance and rehabilitation and an estimate of useful life of all existing and proposed capital improvements. (c) The capital improvement program shall be adopted by, and shall be annually reviewed and revised by, resolution of the governing body of the district or local agency. Annual revisions shall include an extension of the program for an additional year to update the five-year program. At least 60 days prior to its adoption or annual revision, as the case may be, the capital improvement program shall be referred to the planning agency of each affected city and county within which the district or agency operates, for review as to its consistency with the applicable general plan, any applicable specific plans, and all elements and parts of the plan. Failure of the planning agency to report its findings within 40 days after receipt of a capital improvement program or revision of the program shall be conclusively deemed to constitute a finding that the capital improvement program is consistent with the general plan. A district or local agency shall not carry out its capital improvement program or any part of the program if the planning agency finds that the capital improvement program or a part of the capital improvement program is not consistent with the applicable general plan, any specific plans, and all elements and parts of the plan. A district or local agency may overrule the finding and carry out its capital improvement program. (d) Before adopting its capital improvement program, or annual revisions of the program, the governing body of each special district, each unified, elementary, and high school district, and each agency created by a joint powers agreement shall hold at least one public hearing. Notice of the time and place of the hearing shall be given pursuant to Section 65090. In addition, mailed notice shall be given to any city or county which may be significantly affected by the capital improvement program. (Amended by Stats. 1984, Ch. 1009.) (Article 7 J. [commencing with Section 65420] repealed by Stats. 1984, Ch. 1009.) Article 8. Specific Plans (Article 8 [commencing with Section 65450] repealed and added by Stats. 1984, Ch. 1009.) 65450. After the legislative body has adopted a general plan, the planning agency may, or if so directed by the legislative body, shall, prepare specific plans for the systematic implementation of the general plan for all or part of the area covered by the general plan. (Repealed and added by Stats. 1984, Ch. 1009.) (Section 65450.1 repealed by Stats. 1984, Ch. 1009.) 65451. (a) A specific plan shall include a text and a diagram or diagrams which specify all of the following in detail: (1) The distribution, location, and extent of the uses of land, including open space, within the area covered by the plan. (2) The proposed distribution, location, and extent and intensity of major components of public and private transportation, sewage, water, drainage, solid waste disposal, energy, and other essential facilities proposed to be located within the area covered by the plan and needed to support the land uses described in the plan. (3) Standards and criteria by which development will proceed, and standards for the conservation, development, and utilization of natural resources, where applicable. (4) A program of implementation measures including regulations, programs, public works projects, and financing measures necessary to carry out paragraphs (1), (2), and (3). (b) The specific plan shall include a statement of the relationship of the specific plan to the general plan. (Repealed and added by Stats. 1984, Ch. 1009; Amended by Stats. 1985, Ch. 1199.) Preparation of specific plan Content of specific plan 33 The Planning and Zoning Law Optional school/special district CIPs: content and procedure requirements abandonments for street widening; or (3) alignment projects, provided sucn impositions for street purposes, acquisitions, dispositions, or abandonments for street widening, or alignment projects are of a minor nature. (b) A county shall not acquire real property for any of the purposes specified in paragraph (a), nor dispose of any real property, nor construct or authorize a public building or structure, in another county or within the corporate limits of a city, if such city or other county has adopted a general plan or part thereof and such general plan or part thereof is applicable thereto, and a city shall not acquire real property for any of the purposes specified in paragraph (a), nor dispose of any real property, nor construct or authorize a public building or structure, in another city or in uniiyorporated territory, if such other city or the county in which such unincorporated territory is situated has adopted a general plan or part thereof and such general plan or part thereof is applicable thereto, until the location, purpose and extent of such acquisition, disposition, or such public building or structure have been submitted to and reported upon by the planning agency having jurisdiction, as to conformity with said adopted general plan orpart thereof. Failure of the planning agency to report within forty (40) days after the matter has been submitted to it shall be conclusively deemed a finding that the proposed acquisition, disposition, or public building or structure is in conformity with said adopted general plan or part thereof. The provisions of this paragraph (b) shall not apply to acquisition or abandonment for street widening or alignment projects of a minor nature if the legislative body having the real property within its boundaries so provides by ordinance or resolution. (c) A local agency shall not acquire real property for any of the purposes specified in paragraph (a) nor dispose of any real property, nor construct or authorize a public building or structure, in any county or city, if such county or city has adopted a general plan or part thereof and such general plan or part thereof is applicable thereto, until the location, purpose and extent of such acquisition, disposition, or such public building or structure have been submitted to and reported upon by the planning agency having jurisdiction, as to conformity with said adopted general plan or part thereof. Failure of the planning agency to report within forty (40) days after the matter has been submitted to it shall be conclusively deemed a finding that the proposed acquisition, disposition, or public building or structure is in conformity with said adopted general plan or part thereof. If the planning agency disapproves the location, purpose or extent of such acquisition, disposi- tion, or the public building or structure, the disapproval may be overruled by the local agency. Local agency as used in this paragraph (c) means an agency of the state for the local performance of governmental or proprietary functions within limited boundaries. Local agency does not include the state, or county, or a city. (Amended by Stats. 1974, Ch. 700.) 65403. (a) Each special district, each unified, elementary, and high school district, and each agency created by a joint powers agreement pursuant to Article 1 (commencing with Section 6500) of Chapter 5 of Division 7 of Title 1 that constructs or maintains public facilities essential to the growth and maintenance of an urban population may prepare a five-year capital improvement program. This section shall not preclude, limit, or govern any other method of capital improvement planning and shall not apply to any district or agency unless it specifically determines to implement this section. As used in this section, "public facilities" means any of the following: (1) Public buildings, including schools and related facilities. (2) Facilities for the storage, treatment, and distribution of nonagricultural water. (3) Facilities for the collection, treatment, reclamation, and disposal of sewage. (4) Facilities for the collection and disposal of storm waters and for flood control purposes. (5) Facilities for the generation of electricity and the distribution of gas and electricity. (6) Transportation and transit facilities, including but not limited to, streets, roads, harbors, ports, airports, and related facilities. (7) Parks and recreation facilities. However, this section shall not apply to a special, district which constructs or maintains parks and recreation facilities if the annual operating budget of the district does not exceed one hundred thousand dollars ($100,000). 32 IF li iL KENNETH E. Otfk ut tht 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 SEP 2 4 1991 By: C. GUTIERREZ. D?purv IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN DIEGO ENCINITAS UNION SCHOOL DISTRICT, Plaintiff, ALL PERSONS INTERESTED IN THE MATTER of the approval and confirmation of the financing and leasing of certain public school facilities by the Encinitas Union School District and all proceedings leading thereto ) No. 637595 DEFAULT JUDGMENT Hearing Date: September 24, 1991 Time: 8:30 a.m. Dep't: 1 Trial Date: None Set inc]uding the adoption of a resolution) reauthorizing the execution and delivery of certain lease agreements, and the use of a voter- approved tax levied on behalf of the school district for purposes of financing the facilities, Defendants. This matter came on regularly for hearing on September 24, 1991, before the above-entitled court, sitting without a jury. Plaintiff Encinitas Union. School District 2354w * • 1 (the "District"), appeared by its attorney Jeffrey S. 2 Schoppert of Orrick, Herrington & Sutcliffe and Debra K. 3 Maurer of Jennings, Engstrand & Henrikson and no one appeared 4 on behalf of the defendants or any of them, and documentary 5 evidence having been introduced on behalf of the District, and 6 the Court having examined the proceedings of the District 7 leading up to and including the adoption of the resolution by 8 the governing board of the District on May 7, 1991 (herein 9 called the "Resolution") authorizing the lease financing of 10 public school facilities and the execution and delivery of a 11 site lease and a facility lease, by the District, and having 12 examined the validity of each and all of the terms and 13 conditions of the Resolution and leases, and the cause having 14 been submitted to the Court for its decision; 15 IT IS HEREBY ORDERED, ADJUDGED AND DECREED: 16 1. That all conditions, things and acts required 17 by law to exist, happen or be performed precedent to and 1° including the adoption of the Resolution, and the terms and 1° conditions thereof, including the execution and delivery of a 2D site lease and a facility lease, have existed, happened and been performed in the time, form and manner required by law; 22 2. That the provisions of the Resolution and the oo aforesaid site lease and facility lease, authorized to be executed and delivered thereunder are valid, legal and binding 05 obligations as to the parties in accordance with their terms; 26 /// 2354w 1 3. That the increase in the tax rate authorized by 2 the voters at an election held by Plaintiff on March 8, 1977 3 is validly applied by Plaintiff to make base rental payments 4 on the lease of Project Phase II (embodying the Olivenhain 5 Elementary School) to the trustee under the Facility Lease in 6 the form approved by the May 7, 1991 Resolution. 7 Dated: September^:, 1991 8 9 ALPHA L. MONTGOMERY Judge of the Superior Court 10 "11 ~" ' 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 2354w THOMAS R. SHEARER, JR. State Bar #331931 2 3 4 5 R\J 7f 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 JEFFREY S. SCHOPPERT State Bar #116674 ORRICK, HERRINGTON & SUTCLIFFE 400 Sansome Street San Francisco, California 94111 Telephone: (415) 392-1122 DEBRA K. MAURER State Bar #106007 ANN POPPE State Bar #72279 JENNINGS, ENGSTRAND & HENRIKSON, A Professional Law Corporation 501 W. Broadway, Suite 1400 San Diego, California 92101 Telephone: (619) 557-7800 Attorneys for Plaintiff Encinitas Union School District IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF ENCINITAS UNION SCHOOL DISTRICT, ) ) Plaintiff, ) ) v . ) ) ALL PERSONS INTERESTED IN THE MATTER ) of the approval and confirmation of ) the financing and leasing of certain ) public school facilities by the ) Encinitas Union School District and ) all proceedings leading thereto ) including the adoption of a resolution) reauthorizing the execution and ) delivery of certain lease ) agreements, and the use of a voter- ) approved tax levied on behalf of the ) school district for purposes of ) financing the facilities, ) ) Defendants. ) ) SAN DIEGO No. 637595 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR DEFAULT JUDGMENT Hearing Date: Sept. 24, 1991 Time: 8:30 a.m. Dep ' t : 1 Trial Date: None Set 0082Z 1 2 3 4 5 6 7 8 inIU 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 TABLE OF AUTHORITIES I . INTRODUCTION 1 1 . STATEMENT OF FACTS III. BUILDING THE OLIVENHAIN SCHOOL AT THE SHELLEY SITE WILL CARRY OUT THE PURPOSE OF PROPOSITION B IV. THE REQUISITE PROCEDURES UNDER CODE OF CIVIL PROCEDURE SECTION 860 HAVE BEEN SATISFIED AND ENTRY OF A DEFAULT JUDGMENT IS MERITED V . CONCLUSION Paae i 1 2 ... 7 11 13 0082Z 1 TABLE OF AUTHORITIES 2 Cases Page o Citv of San Diego v. Millan, 127 Cal. App. 521, 16 P.2d 357 (1932) 8, 9 4 County of San Bernardino v. Way, 5 18 Cal.2d 647, 117 P.2d 354 (1941) 10 6 El Doradn Irrigation Dist. v. Browne, 216 Cal. 269, 13 P.2d 921 (1932) 10 Encinitas Union School District v. 8 All Persons Interested etc.. No. 624468 (San Diego Super. Ct. 1990) 4 9 Town of Martinez v. Johnson, 10 201 Cal. 397, 257 P. 853 (1927) 10 11 Walters v. County of Plumas, 61 Cal. App. 3d 460, 12 132 Cal. Rptr 174 (1976) 12 13 Statutes 14 Code of Civil Procedure 15 §§ 860 fit S£3 4,12,13 § 862 12 16 §861 11 17 Education Code § 39308 2 18 §39308.5 2 19 Government Code §§ 53510 fit SJL3 12 20 §53511 12,13 21 Books 22 R. Bumann, Colony Olivenhain (1981) 6 23 24 25 26 ii 0082Z I.1 INTRODUCTION2 On April 10, 1990, Encinitas Union School District voters authorized the District to build --' and pay for with ~ • - — local taxes — a new elementary school to be located in the 3 , community commonly known as Olivenhain. The 1990 balloto proposition that approved the tax-backed financing for the school's construction contemplated that the Olivenhaino Elementary School would be built in a part of the Olivenhainy .._ area that lies within the city limits of Encinitas. ^ Unforeseen environmental concerns and their financial 12 implications now require that the school be built on a site in 13 south Carlsbad immediately across the Encinitas city boundary. 14 While the proposed site technically lies just 15 outside the boundaries described in the 1990 ballot measure, 1g the location plainly fulfills the proposition's purpose, which 17 was to authorize the District to construct and finance a new 18 elementary school to serve the expanding enrollment needs of 19 the Olivenhain community. The south Carlsbad site lies within 20 the Olivenhain area and a school at that site will be attended 21 by the same Olivenhain students as would a school across the 22 line in Encinitas. Moreover, building the school at the 23 proposed site will result in significant cost savings to the 24 District's taxpayers. Accordingly, for these and the other 25 reasons advanced below, the Court should enter its judgment 26 /// 1 validating the lease agreements needed to build and finance a 2 school at the south Carlsbad site. 3 II- 4 STATEMENT OF FACTS 5 In 1977, pursuant to the authority granted by 6 Education Code section 39308, the District's electors approved 7 a ballot measure authorizing the lease-purchase financing of a 8 new elementary school. Complaint If 4. As part of the 9 measure's approval, the voters permitted an increase in the 10 District's maximum real property tax rate to finance the cost 11 of the new facilities. Id. (The tax rate increase is 12 referred to herein as the "1977 tax override.") 13 In 1987, the legislature added Education Code 14 section 39308.5, which, as amended in 1989, allows school 15 districts to seek voter consent to use previously approved 16 section 39308 tax rates, like the District's 1977 tax 17 override, to finance additional educational facilities. 18 Pursuant to that statutory authority, the District held an 19 election on April 10, 1990 at which the District's voters 20 approved a proposition ("Proposition B") that called for the 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 0082Z 1 construction of two new elementary schools, one of which is to 2 be located in the Olivenhain area. See Complaint 1f 8.~~ 3 Following the passage of Proposition B, the 4 District's Board of Trustees adopted a resolution (the _ 5 "May 15, 1990 Resolution") authorizing the District to / - £A CD V* ^^•"••^^tl *~~~^"!^—^—m~~m-m-*~~*'1^^*^6 construct and finance theftwo new^jschooJJ^ by entering into 7 various leases and other agreements. Pursuant to a site 8 lease, the District will convey the land on which the 9 Olivenhain school will be built to the Encinitas Union School 10 District Educational Facilities Corporation (the 11 12 I/ Proposition B reads as follows: 13 Shall the Governing Board of the Encinitas Union School District purchase sites (where the sites are 14 not presently owned by the District), prepare plans and specifications and lease sites and buildings to 15 be constructed for use by the school district consisting of the hereinafter specified fully 16 furnished, equipped and landscaped facilities to be located on the following sites: 17 R"- Olivenhain Elementary School - Located in the 18 Olivenhain area, Encinitas, California, between u Encinitas Boulevard and the Carlsbad City Limits.19 v? , La Costa Heights II Elementary School - Located20 •'• ' between Levante Avenue and Olivenhain Road east of El Camino Real and west of Rancho Santa Fe Road in 21 Carlsbad, California 22 \i and, for those purposes, shall the tax rate increase (not to exceed 5.5 cents per $100.00 assessed23 valuation) authorized on March 8, 1977, be used solely and exclusively for those purposes in24 addition to those approved by the majority of electors at the election held pursuant to 25 Section 39308 of the Education Code on March 8, 1977, the District reserving the right to lease less than all the proposed facilities if circumstances so require? 0082Z 1 "Corporation"), a non-profit corporation formed to implement 2 the District's lease-purchase program. Complaint Exh. A. The _ — ^ ^ -~.p ^ ^ ^ ^ __ ^ 3 Corporation will sell certificates of participation and use 4 the sale proceeds to construct on the real* property the 5 facilities described in the 1990 ballot measure. Thereafter 6 the Corporation will sublease the real property and 7 improvements back to the District for a specified term 8 pursuant to a facility lease. Id. Exh. B. The facility lease 9 payments to the Corporation will be assigned to a trustee and 10 used to make periodic payments to the holders of the 11 certificates of participation. See Complaint If 11. 12 After adopting the May 15, 1990 Resolution, the 13 District sought a judicial determination of certain ijssues 14 affecting the financing. On May 23, 1990, the District filed 15 an action under Code of Civil Procedure sections 860 et seq. 16 (the same statutory authority as for this action) in which it I? asked the Court to validate the leases and agreements approved 18 by the May 15, 1990 Resolution. In that case, entitled 19 Encinitas Union School District v. All Persons Interested etc. 20 (San Diego Superior Court Case No. 624468), the District sought and obtained a determination by the Court that the 1977 nn tax override, as used for the 1990 lease-purchase financing, pq is an exception to the Proposition 13 one percent tax limit, and that the lease payments to be made by the District_wiJJL 25 not be subject to the governmental spending restriction known 26 as the Gann Limit. On July 20, 1990, this Court entered a 0082Z 1 default judgment validating those leases and agreements. 2 Complaint If 15. 3 After judgment was entered in the first validation 4 action, the District attempted to locate a site for the 5 Olivenhain Elementary School within the Encinitas city 6 limits. Complaint If 22; Declaration Of Gene Frederick In 7 Support Of Default Judgment (Sept. 4, 1991)) ("Frederick 8 Decl.") Iflf 2-5. Initially, the District identified two 9 potentially suitable and feasible sites that were located in 10 the Olivenhain community and also within the Encinitas city 11 limits. However, as a result of the environmental review 12 process and financial planning that occurred after the 13 Proposition B election, the District determined that, because 14 of unanticipated engineering and other costs, it would be 15 financially imprudent to build the school at either of those 16 sites. Frederick Decl. Iflf 2, 4-6. See also Complaint 17 MM 22-23; Draft Environmental Impact Report for the Proposed 18 Olivenhain Elementary School at S-6, S-7 (A.D. Hinshaw Assocs. ^ 1991) (summary of geotechnical mitigation measures required for • 9Du one Encinitas site) (copy will be lodged with the Court). 21 The post-election environmental review process did, however, identify a new potential site for the school (the 23 "Shelley site") just across the Enc ^nj^^s_cjLtj^_ljLne -- but 24 ----still within the Olivenhain area — that presents none of the 25 expensive environmental and engineering problems associated PR with the Encinitas sites. Frederick Decl. Iflf 6, 7. Indeed, 0082Z 1 locating the school at the environmentally superior Shelley 2 site will result in a cost savings to the JDjustrict^-ahd itlT~N 3 taxpayers of approximately one-third the -cost of acquiring and 4 building the school at either of the other two sites. 5 Frederick Decl. If 8; Complaint *|[ 23. 6 The land onjwhich the potential site is located was 7 formally annexed to the City of Carlsbad in or about 1984. 2/ ji- \S8 Complaint If 21.— However, the site was histqri£alj.y__j3a^rt 9 of the Rancho Las_ E^nc^ijni^tjs , which was sold to the f_ounders of 10 the Olivenhain Colony_,in^l884 . Frederick Decl. If 7 & Exh. A 11 (map of Olivenhain area identifying Encinitas Rancho 12 boundaries and Shelley site location); R. Bumann, Colony 13 Olivenhain 18 (1981). See generally id. at 4-45 (describing 14 early history of the colony) (relevant excerpts of the Bumann 15 text will be lodged with the Court). The site lies on 16 gradually sloping terrain at the northerly end of what is 17 currently referred to geographically as the Olivenhain 18 Valley. Frederick Decl. If 7. 19 Even though the Shelley site is plainly within the *® Olivenhain area, because the site lies just outside the 21 Encinitas city limits, on May 7, 1991 the District adopted a PP new resolution (the "May 7, 1991 Resolution") to make clear 23 its authorization to enter into a lease of a south Carlsbad 24 •2-/ The District includes within its boundaries the City of Encinitas, portions of the City of Carlsbad (including the proposed site), plus unincorporated county land. 0082Z 1 site for the Olivenhain school. The resolution reapproves the 2 form and reauthorizes the execution of the Olivenhain school 3 site lease and facility lease in their earlier approved forms 4 except as changed to describe more specifically the school 5 site. See Complaint Exhs. A, B, C. 6 By this action, the District seeks the Court's 7 judgment validating, among other things, the site lease and 8 facility lease in the form approved by the May 7, 1991 9 Resolution. Once judgment is entered, the District will 10 proceed with the additional steps necessary to complete the 11 financing. 12 in. 13 BUILDING THE OLIVENHAIN SCHOOL AT THE SHELLEY SITE WILL CARRY OUT 14 THE PURPOSE OF PROPOSITION B 15 Proposition B's fundamental purpose was to provide ^ for the construction and financing of new elementary school " facilities, including a new school to serve the expanding '° enrollment needs of the Olivenhain community. While this 1 Q general purpose is evident from the language of the ballot Of)^ measure (n.l, supra) . the issue before the Court is whether__a 21 ""*'••minor change in the Olivenhain__sc_hool' s location would be consistent with the overall purpose of Proposition B. 23 The negligible variation from the ballot measure's 24 general site parameters flowed from the unanticipated results 25 of the environmental review process. It would be anomalous if the beneficial result of that investigation -- the 0082Z 1 identification of a cheaper and environmentally superior 2 school location — could thwart the voters' expressed desire 3 to build a new school with local taxes. Indeed, such a result 4 would run counter to long established legal precedent 5 involving analogous changes in publicly financed municipal 6 improvements. E.g.. City of San Dieao v. Millan. 127 Cal. 7 App. 521, 16 P.2d 357 (1932). 8 In Millan. the city's voters approved the issuance 9 of bonds to build a dam of a specified construction type 10 (arched, gravity section, masonry). Id. at 523-24. However, 11 after bonds were issued but before the dam was built, the 12 legislature gave to the state engineer the power to supervise 13 dam construction. Jd. at 524. The state engineer withheld 14 authority to build the type of dam originally contemplated and 15 instead approved the building of a different, presumably 16 safer, type of dam (hydraulic, earth-filled rock embankment). 17 Id. The city treasurer refused to approve the use of the bond 18 proceeds to construct the new type dam arguing such use would '* be inconsistent with the purposes of the bond measure approved 20 by the voters. Id. at 523, 525, 534. The city brought suit 21 to compel its treasurer to use proceeds from the issuance of po bonds to build the type of dam approved by the state 00 engineer. Id. at 523. The court ruled in favor of the city. In so doing, 25 it explained that in deciding whether bond proceeds could be Pfi used to build a different type of dam, it was necessary to 0082Z 1 "consider what were 'the purposes and objects' to be 2 accomplished by the issuance of the . . . bonds." Id. at 3 533. It found that the purpose of the bond issuance was in 4 controlling the water of the San Diego River and not literally 5 the building of the dam. Id. at 533-34. The court went on to 6 state that building a different type of dam would still 7 accomplish the purpose for which the bonds were approved by 8 the voters. Id. at 534-36. 9 Here, locating the Olivenhain school at the Shelley 10 site will fully achieve Proposition B's general purpose. 11 Proposition B was intended to allow the District to use the 12 tax-backed lease-purchase program origjjiaj-ly authorized by the 13 District's voters in the 1977 to provide new schools where 14 they are currently most needed. Although the 1990 ballot 15 proposition called for the Olivenhain school to be located 16 within the city of Encinitas, it plainly also located the 17 school within the Olivenhain area. Consistent with 18 Proposition B'^ underlying purpose, the proposed site will 19 sejrye the same attendance area as would any Olivenhain 2^ Elementary School located within the Encinitas city limits. 21 See Frederick Decl. If 9. Like the state engineer's 22 intervention in Millan. the unforeseen results of the 23 environmental review process have required minor changes in the District's school-building program to produce the public facilities mandated by the voters. 26 /// 0082Z 1 The Shelley site location will both mitigate 2 environmental concerns reported in the Environmental Impact 3 Report prepared for the District and, as evidenced by the 4 declaration of the District official overseeing the school's 5 construction, result in substantial savings to the District 6 and its taxpayers. Frederick Decl. If 8. Courts have 7 affirmatively recognized that this kind of unforeseen 8 beneficial change does nothing to interfere with whatever 9 rights taxpayers acquire through the electoral process. See, 10 e.g.. County of San Bernardino v. Way, 18 Cal.2d 647, 666, 11 117 P.2d 354 (1941) (where change made in existing law by 12 subsequent legislation redounds to the material benefit of the 13 taxpayers there is no impairment of taxpayers' contract rights 14 resulting from cancellation of delinquent property taxes and 15 refunding of assessment bonds); Town of Martinez v. Johnson. 16 201 Cal. 397, 257 P. 853 (1927) (government discretion may be 17 exercised to lessen the burden on taxpayers; approving 18 issuance of bonds at interest rate lower than approved at 19 election). See a I so El Dorado Irrigation Dist. v. Browne. 216 20 Cal. 269, 271, 13 P.2d 921 (1932) (changes after election in 91 minor details of irrigation works plans are permissible; court 22 held even substantial changes were permitted because taxpayers lacked constitutional right to vote on bond measures). 04 The District's choice of a site for the Olivenhain 25 school is both consistent with the purpose of the 1990 26 election and fiscally prudent. The Court should therefore 10 0082Z 1 validate the lease agreements needed to proceed with the 2 school's construction. 3 IV. 4 THE REQUISITE PROCEDURES UNDER CODE OF CIVIL PROCEDURE SECTION 860 5 HAVE BEEN SATISFIED AND ENTRY OF A DEFAULT JUDGMENT IS MERITED 6 7 On May 14, 1991, this court signed its Order 8 pursuant to section 861 of the Code of Civil Procedure 9 requiring that Plaintiff serve Defendants herein by: 10 (1)^publication of Summons in the Coast Dispatch commencing 11 May 30, 1991 for three successive weeks;^ (2) posting a copy of 12 the Summons in three public places within the boundaries of 13 the District; and '••.,(3) mailing copies of the Summons and 1^ Complaint to those persons, if any, or their attorneys of 15 record, who filed and served legal actions against the 16 Plaintiff prior to ten days after the completion of the ^ publication of Summons challenging, inter alia. the validity 18 of the May 7, 1991 Resolution or the agreements authorized to 19 be executed and delivered pursuant thereto or who expressly on notified Plaintiff's attorneys of record of their interest in 21 this matter in writing. 22 These notification procedures exceed the 23 requirements of the court validation statutes. Compare Civ. 04 Proc. Code § 861 (West 1980). Despite these various efforts 25 to notify interested persons, as evidenced by the Proof of 26 Service of Summons by Posting, Declaration of Cynthia S. Weeks 11 0082Z 1 and Proof of Publication on file herein, no pleading of any 2 type or notification of any interest in this action was filed 3 and served within the statutory, court-ordered time limit. 4 Therefore, this Court's jurisdiction is complete. 5 As stated in Code of Civil Procedure section 862: 6 Jurisdiction shall be complete after the date specified in the summons. Any party 7 interested may, not later than the date specified in the summons. appear and contest 8 the legality or validity of the matter sought to be determined. 9 (West 1980) (emphasis added). 10 11 The present validation proceeding is expressly 12 provided for by Code of Civil Procedure sections 860 e_t seq. 13 and Government Code sections 53510 et sea. Pursuant to 14 Government Code section 53511, "[a] local agency may bring an 15 action to determine the validity of its bonds, warrants, 16 contracts, obligations or evidences of indebtedness." 17 (West 1983) A "local agency" includes a public school 18 district. See Gov't Code § 53510 (West 1983). 19 The type of contract covered by section 53511 20 includes those concerning a public agency's financial 21 obligations, a public agency's pledge of revenues to pay or oo secure bonds, or circumstances in which a bond's marketability 23 may depend on a prompt validation procedure. Walters v. 24 County of Plumas. 61 Cal. App. 3d 460, 466-469, 132 Cal. Rptr 25 174 (1976). The "essential difference" between those 26 contracts covered and those excluded by section 53511 is "the 12 0082Z — 1 extent to which the lack of a prompt validating procedure will 2 impair the [public agency's] ability to operate." Id. 3 The presently proposed leases are the types of 4 contracts covered by section 53511. Without such contracts 5 the District is unable to perform the necessary construction 6 and improvements. Without a prompt validating procedure the 7 sale of certificates of participation that ultimately finance 8 the construction, and which are secured by the lease 9 obligation of the District, will be adversely affected, and 10 the District's ability to operate will be impaired. 11 Thus, the leases are susceptible of validation under Code 12 of Civil Procedure sections 860 et seq., all other procedural 13 requirements have been met and a default judgment should be 14 entered. 15 V. 16 CONCLUSION 17 The location of the Olivenhain school at a site 18 immediately adjacent to the City of Encinitas and still within 19 the Olivenhain neighborhood fulfills the purposes of the 1990 20 ballot proposition. The District respectfully requests that 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 13 0082-ZT -I the court grant the relief sought in the complaint on file 2 herein and enter its judgment in accordance therewith. 3 Dated: September 16, 1991 4 THOMAS R. SHEARER, JR. JEFFREY S. SCHOPPERT 5 ORRICK, HERRINGTON & SUTCLIFFE 6 DEBRA K. MAURER ANN POPPE 7 JENNINGS, ENGSTRAND & HENRIKSON, A Professional Law Corporation 8 9 7/7j^ffrey S. Choppert 10 V Attorneys for Plaintiff Encinitas Union School District 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 14 0082Z