Ellensburg School District #401 Board of Directors - Special Meeting - Monday, June 26, 2017-9:00 am Administration Building Conference Room, 1300 East Third Avenue, Ellensburg, WA 98926 Agenda 1. Call to Order 2. Administration (Action) (Possible Action) Mt. Stuart Elementary School Property - Federal Land and Water Conservation Fund Grant Discussion with Colm Nelson, Attorney - Foster Pepper PLLC A. Background Information on Federal Grant Requirements Provided by Farley Walker, Former Business Manager B. Summary of Dispute and Proposed Next Steps Provided by Colm Nelson, Attorney - Foster Pepper PLLC C. WAC 392-343-020 - Site Review and Evaluation Mt. Stuart Elementary School Property_Background Information on Federal Grant Requirements Provided by Farley Walker, Business Manager.pdf (p. 2) Mt. Stuart Elementary School Property_Summary of Dispute and Proposed Next Steps Provided by Colm Nelson, Attorney - Foster Pepper PLLC.pdf (p. 4) WAC 392-342-020_Site Review and Evaluation.pdf (p. 6) 3. Community Input 4. Adjournment (Information) (Action) Packet page 1 of 6
Mt. Stuart Elementary School Property - Federal Land and Water Conservation Fund Grant (#66-022) Information Provided by Farley Walker, Business Manager Issue. This historical (44 years ago) Federal Land and Water Conservation Fund Grant (#66-022) has resulted in a critical land use issue at Mt. Stuart Elementary School that is not compatible with the educational needs or safety of our elementary students at Mt. Stuart. Background. On September 15, 1964, a Bond in the amount of $994,214 was passed by the taxpayers of the Ellensburg School District to build a new Elementary School and to purchase the needed property to site the new elementary school. Subsequent to the passage of the September 1964 Bond: In December 1964, land (originally described as 27 acres, but was actually recorded as 25.86 acres) was purchased by the District from the Bloomberg family with the Bond proceeds; and In September 1967, the new Mt. Stuart Elementary School was completed with the Bond proceeds. On October 4, 1965, the LWCF Grant application indicated the following proposed use of the 19 acres: playground 10 acres; paved area 3 acres; and grass areas for lawn space 6 acres. On April 24, 1967, LWCF Grant (#66-022) was issued by the Bureau of Outdoor Recreation (BOR) United States Department of Interior to acquire 19 acres of land in Ellensburg to be developed as a neighborhood schoolpark. Subsequent BOR clarification regarding the Grant retroactively (in-lieu of purchasing new land) split the original 27 acres previously purchased by the District in 1964 for the new elementary school (Mt. Stuart Elementary School) into 8 acres for educational use and 19 acres for recreation use under the LWCF Grant to be administered by the Ellensburg School District s Community Schools Program (the Community Schools concept, which was started during this time period, is still operating today to give the Community scheduled access to all of the District s facilities, including Mt. Stuart). In March 2010, forty-four (44) years after the LWCF Grant was awarded, the District was notified by the RCO that it was not in compliance with the Grant specifically stating it appears the school buildings and parking lot may be located on a portion of the land that was acquired to be used for outdoor recreational use. This is not allowed under the LWCF program. The RCO went on to say that if the District did not come into compliance with the Grant, the 19 acres would have to be replaced with new property for outdoor recreation and that Repayment of the original grant is not an option. In March 2012, the District offered to dedicate 14.3 acres at Mt. Stuart to resolve this issue; the offer to the RCO met the intent of the original Grant by creating a dedicated park that permanently de-conflicted the land needed to meet the educational and safety needs of Mt. Stuart s elementary students with that of a park open to the public. Although the offer was less than 19 acres, the 14.3 acre offer was a good faith effort by the District to resolve the issue. Based on the letter response from the RCO dated April 17, 2012 (see attached WA ST RCO LTR 4-17-12) declining the District s 14.3 acre offer, and despite the District s best efforts to resolve this issue, it appears neither the RCO or the National Park Service (NPS) has the authority, or flexibility, to modify the original acreage of the LWCF Grant agreement. Negative Impact. Unfortunately, the LCWF Grant has converted land needed for the education of the District s students, and purchased by the District s taxpayers for an elementary school, into a neighborhood park; thereby, creating a critical land use and safety issue that puts the District into conflict with the RCO and the NPS. In hindsight, the Packet page 2 of 6
incompatibility of the neighborhood park-schools concept should have been addressed at the inception of the LWCF Grant in 1965. Forty-four years (44) later, it is just as obvious that the neighborhood park-schools concept is flawed. Asking the District s taxpayers for another $1,425,000 (assuming a market value of $75,000 an acre) to purchase an additional 19 acres for a park is not an option for the District (since the District has had three consecutive Bond failures trying to replace a Middle School, any bond or capital levy proposal to the taxpayers to buy land for a park is certain to be defeated at the polls); neither is providing more than 14.3 dedicated acres from existing land in the District s property inventory to support a park an option (any additional land beyond 14.3 acres carved out of the District s land inventory would negatively affect the educational program at Mt. Stuart Elementary School). Additionally, by the standards set by the Office of Superintendent of Public Instruction (OSPI), State of Washington, an elementary school needs approximately 12 acres for educational purposes; the District s proposal to dedicate 14.3 acres as a neighborhood park leaves Mt. Stuart Elementary School with 11.56 acres (slightly below OPSI s recommendation of 12 acres) for educational purposes (currently, Mt. Stuart sits on 25.86 acres). Packet page 3 of 6
Mt. Stuart Elementary School Property - Federal Land and Water Conservation Fund Grant Summary of Dispute and Proposed Next Steps Information Provided by Colm Nelson, Attorney for Foster Pepper PLLC Summary A more-detailed summary of the background facts that Farley prepared is attached. In short, after acquiring 26 acres of land for the Mount Stuart School and after building the school, the school district secured a Land and Water Conservation Fund (LWCF) federal grant to help pay for the cost of the acquisition. As a condition of the grant, the school district was required to set aside 19 acres of land for recreational purposes. It appears this 19-acre calculation was derived by the school district before the land was acquired and the school was built. Unfortunately, the school was constructed in a location leaving only approximately 17 acres (survey to confirm) available to the north (assuming the photo is north/south in direction) to dedicate for recreation. Instead of updating the grant form to reflect 17 acres, the parties continued to reference 19 acres. Over the years the state and the federal government have taken the position that the school district has unlawfully managed the property and not preserved the 19 acres for recreational purposes. Based on my review of the correspondence, it strikes me that the state and federal government don t understand that the parties, when the grant was executed, made a mutual mistake in describing the property and that the state and federal government are not actually losing any land. The land dedicated for public use is the same as it was, it s just the parties mistakenly referred to that land being 19 acres instead of a smaller amount. Years ago the school district offered to expressly carve off 14 acres as part of a settlement, but the state and feds could not accept that, because they feel shorted 5 acres. See attached. Options. In March, I discussed with Farley several non-litigation options. 1. Re-commence Conversion Discussion. Under this process, the school district would acquire additional property to replace the property taken for non-public use. The 9 conditions for conversion are listed below. The school district was considering buying the adjacent City parcel (2 acres) as part of a conversion. If the school district intends to buy the City property, it would first need to receive confirmation from the City that the 2-acre parcel meets the conditions of requirement (4) below. If the property does meet those conditions, the school district can conduct a survey of the land and, assuming the school district will have 19-acres in total to commit for recreational purposes, reach out to the state to begin a formal, approved conversion process. 2. Propose Amendment to the Grant based on mutual mistake. Under this approach, the school district would reach out to the state and feds to secure a voluntary amendment to the grant agreement based on the doctrine of mutual mistake. Farley indicated that this doctrine had never been discussed before. Also, when this grant was given, there was an understanding that the land would be used by both the district and the public based on joint use initiative at the time. This idea was discussed between the district, state and feds at a meeting on April 10, 1967, according to some documents we have. The project was approved formally just a few weeks later. If it is possible to make some of the acreage to the south available for public recreation, that idea could be explored as well in conjunction with this amendment discussion. 3. Request a change in project sponsor and convey to City. Under this approach, the northern tracts would be subdivided and conveyed to the City, and then the City would manage the land and become the project sponsor (including its adjacent two acres). I still need to see if there is precedent for this approach, but either way we would need the City s, the state s and the federal government s approval for this to work. Of course, if the board decides to not build a new school, another option is to continue to do nothing. In that instance, the state has the right to compel the district to deliver 19 acres. Based on my research, however, I don t believe there is much precedent of enforcement of these grant agreements, but the risk is there. Packet page 4 of 6
Next Steps I recommend that the school district reach out to the City to determine whether the adjacent two acres satisfy the conditions in (4) below. If they do, we can discuss conducting a survey and reaching out to state and federal government about conversion/amendment of the grant. Summary of Conversion conditions. (1) All practical alternatives to the proposed conversion have been evaluated. (2) The fair market value of the property to be converted has been established and the property proposed for substitution is of at least equal fair market value as established by an approved appraisal (prepared in accordance with uniform Federal appraisal standards) excluding the value of structures or facilities that will not serve a recreation purpose. (3) The property proposed for replacement is of reasonably equivalent usefulness and location as that being converted. (4) The property proposed for substitution meets the eligibility requirements for L&WCF assisted acquisition. (i) The land was not acquired by the sponsor or selling agency for recreation. (ii) The land has not been dedicated or managed for recreational purposes while in public ownership. (iii) No Federal assistance was provided in the original acquisition unless the assistance was provided under a program expressly authorized to match or supplement L&WCF assistance. (iv) Where the project sponsor acquires the land from another public agency, the selling agency must be required by law to receive payment for the land so acquired. (5) In the case of assisted sites which are partially rather than wholly converted, the impact of the converted portion on the remainder shall be considered. (6) All necessary coordination with other Federal agencies has been satisfactorily accomplished including, for example, compliance with section 4(f) of the Department of Transportation Act of 1966. (7) The guidelines for environmental evaluation have been satisfactorily completed and considered by NPS during its review of the proposed 6(f)(3) action. (8) State intergovernmental clearinghouse review procedures have been adhered to if the proposed conversion and substitution constitute significant changes to the original Land and Water Conservation Fund project. (9) The proposed conversion and substitution are in accord with the Statewide Comprehensive Outdoor Recreation Plan (SCORP) and/or equivalent recreation plans. Packet page 5 of 6
WAC 392-342-020 Site review and evaluation. The superintendent of public instruction together with the school district shall conduct a review and evaluation of sites for new and existing state funding assisted projects. In selecting sites for schools, a district shall consider the following: (1) The property upon which the school facility is or will be located is free of all encumbrances that would detrimentally interfere with the construction, operation, and useful life of the facility; (2) The site is of sufficient size to meet the needs of the facility. The minimum acreage of the site should be five usable acres and one additional usable acre for each one hundred students or portion thereof of projected maximum enrollment plus an additional five usable acres if the school contains any grade above grade six. A district considering the use of a site that is less than the recommended minimum usable acreage should assure that: (a) The health and safety of the students will not be in jeopardy; (b) The internal spaces within the proposed facility will be adequate for the proposed educational program; (c) The neighborhood in which the school facility is or will be situated will not be detrimentally impacted by lack of parking for students, employees, and the public; and (d) The physical education and recreational program requirements will be met. (3) A site review or predesign conference has been conducted with all appropriate local code agencies in order to determine design constraints; (4) A geotechnical engineer has conducted a limited subsurface investigation to gather basic information regarding potential foundation and subgrade performance. Packet page 6 of 6