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The .193-acre problem

by Bill D'Agostino

A few years ago, Palo Alto's school district accidentally placed a few portable buildings at Walter Hays Elementary School on a very small portion of city-owned Rinconada Park. Up until now, the city has given the school district a pass on their gaffe.

This seemingly simple problem is winding down a complex road that could ultimately lead the City Council to either ask for a vote of the city's electorate or face criticism they are violating their own laws. Which path they ultimately choose could depend on whose advice the elected body follows: its legal staff or its commission of park advocates.

The council is scheduled to walk that tightrope on Dec. 8.

After years of asking for exemptions, the school district said it wanted the land permanently this year, because moving the not-so-portable portables was a cost it didn't want to bear in these bleak financial times.

So, the district agreed to give up some equivalently-sized land to make up for the park's lost .193 acres. The city attorney's office then drafted an ordinance which, if approved, would give the city the right to make such an exchange of land.

"The kids and the families served by the district are the same kids and families served by the city. We should avoid unduly costing the district money" by making them move the buildings, City Manager Frank Benest argued.

Sounds like an easy solution, right? One problem: A few long-time members of the community argue that a 1965 voter-approved amendment to the city's charter forbids such a swap.

"It may seem persnickety -- but you can't get loosey-goosey and try to do something by ordinance that is illegal by charter," long-time resident and Rinconada Park neighbor Tom Jordan said.

Last week, the council's Parks and Recreation Commission agreed with Jordan and recommended the city ask the public, via an election, whether it wants to give the council the ability to forever swap such minor portions of park land.

All of this places the City Council in a quandary. Does it feel it legally has the right to swap the land? If not, is the cost of an election too expensive to solve a small (less than 1/5 of an acre) problem? Or should a proper yet convoluted process trump a simple and desired product?

That 1965 charter amendment was passed to make it next to impossible for the city to give up any of its park land. Some argue it's one of the reasons the city has so much green space despite the high cost of land.

But former City Attorney Ariel Calonne, in a report written in June, argued that the 1965 amendment does already allow for minor swaps of park land. He noted that a state law attached as an appendix to the 1965 amendment authorizes the council to be able to do so. (Interim City Attorney Wynne Furth agrees with this analysis.)

Some long-time residents, including a former council member who helped draft the 1965 amendment, disagree with the attorneys' analysis of the amendment.

"We intended to make it very hard to eliminate, exchange, or change the use of park land without a vote of the people," former Councilwoman Enid Pearson wrote to the Parks and Recreation Commission.

Reading that, the commission decided to disagree with the advice of the city attorney's office, and made its recommendation to hold an election.

Although commission members agreed in theory that the city/school swap currently on the table is a good idea, they worried about the potential abuse of the power to swap park land if it was given to the council carte blanche .

"I'm one who thinks that the 'Palo Alto process' needs to be streamlined at every chance we get ... [but] I think that the issue is so important -- despite the legal advice I'm getting -- that the voters ought to be able to weigh in," commission chair William Garvey said at the meeting.

Further complicating things is the fact that Calonne, more than a decade ago, appears to have given completely opposite advice to the City Council.

In minutes from a 1991 council meeting, Calonne reportedly told then-Councilwoman Liz Kniss that the council did not have the ability to swap park land without a vote of the people, despite what state law might say.

E-mail Bill D'Agostino at bdagostino@paweekly.com