July 14, 2004

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Palo Alto Online

Land swap to bypass voters

by Jocelyn Dong

Caught between a rock and a hard place Monday night, the Palo Alto City Council opted for a legally risky, but "common sense," solution to a sticky problem involving land -- one that could save the city $100,000.

At issue were 0.193 acres of Rinconada Park that the Palo Alto Unified School District has used without the city's permission since at least 1998, after it placed portable classrooms at Walter Hays Elementary School that inadvertently flopped over onto parkland.

The encroachment presented a legal conundrum, because according to the Palo Alto City Charter, no one may use parkland for purposes other than parks without the approval of the city's voters. Simply moving the classrooms would cost $300,000.

Various solutions had been proposed since the mistake was discovered, including a direct swap for an equal amount of land from the Walter Hays school property. City staff, the city's Parks and Recreation Commission, and the council's own Policy & Services Committee, however, eventually agreed the legally safest course of action would be to follow the letter of the law, and refer the matter to the voters, to the tune of $100,000.

That solution clearly did not sit well with some council members Monday night.

Council member Vic Ojakian made the motion to return to the direct swap solution, which would not require the costly vote, saying the council needed to "take the leadership position" on the issue.

"It's important we do that," he said.

Council members chimed in with their support, citing the city's fiscal woes and the seeming simplicity of the matter.

"This is what the people who elected us expected us to do ... use common sense for the good of all the people," Councilmember Jim Burch.

Some members worried, though, that the action would be illegal. In response to extended questioning on the matter, Acting City Attorney Wynne Furth said: "We have not told you, though the public has, this is an illegal action."

Councilwoman LaDoris Cordell cast the lone dissenting vote, saying she sympathized with the desire to save money, but added if the city didn't bring the issue before the voters, "legally, we're in trouble."

Indeed, members of the public who desired to preserve the integrity of the city's Parks Dedication Ordinance -- the policy that states changes to parks must be approved by voters -- said they'd fight the council's decision.

"It's wrong. It's illegal," said resident Tom Jordan. The council should not be interpreting the charter, but following it, he said.

"I'm very disappointed. It's precedent setting," Jordan said.

Likewise, open-space advocate Emily Renzel worried that the council's action would open up parks to future encroachment and council-approved swaps.

"Common sense says one thing, but how it affects the future is unknown," she said.

But Burch said the matter was simple and that following the letter of the law "can get us into a lot of trouble."

The council should follow the principle of "do no harm," he said. "No harm has been done here to either party."

The matter, which was decided on a 6-1 vote with Councilwoman Yoriko Kishimoto absent and Councilwoman Hillary Freeman abstaining, will come back before the council in late September after city staff draft an ordinance outlining the land swap. The council will review the ordinance twice, and then the public will have 30 days to muster support for a referendum, if they so choose. In addition, anyone can sue the city over the matter within 90 days, according to Furth.

It was unclear Monday night how the city and school district would share the costs of defending itself against a lawsuit. The school district had been willing to split the $100,000 bill to place the issue on the ballot.

In other matters, the council decided not to alter its procedures for electing a mayor and vice mayor, despite nine months of looking into the issue.

The possible change was prompted by the January 2003 council meeting at which Council member Dena Mossar, nominated for mayor, was criticized as being unqualified by then-Councilwoman Nancy Lytle prior to the vote. The critique took council members by surprise and was considered by some as inappropriate for the evening, which has had a largely celebratory atmosphere.

Typically, the council members work out who will become mayor and vice-mayor through informal conversations among themselves.

However, others expressed a desire to discuss candidates publicly prior to the election.

Monday night, council members said they felt the process worked well and had resulted in good mayors. Councilwoman Hillary Freeman requested a public interview process, but her idea was voted down 2-6, with Cordell joining her in the motion. The council ended up voting 6-2 in favor of leaving the procedure as is.

For the record, Mossar said that she harbored no ill feelings over her election night, adding that she and her family "all had a good time, and it added to our family lore." Senior staff writer Jocelyn Dong can be reached at jdong@paweekly.com.

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