OCTOBER  2014Vol 2, Issue 35
Head Shot
In This Issue

"It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood, who strives valiantly; who errs and comes short again and again; because there is not effort without error and shortcomings; but who does actually strive to do the deed; who knows the great enthusiasm, the great devotion, who spends himself in a worthy cause, who at the best knows in the end the triumph of high achievement and who at the worst, if he fails, at least he fails while daring greatly. So that his place shall never be with those cold and timid souls who know neither victory nor defeat." -Theodore Roosevelt

As a Trustee of the Districts assets, I am entrusted to protect our students, staff, and the physical buildings now and for the benefit of future generations.  The plans to tunnel under BHHS will severely limit our ability to do so.  I am not willing to risk the life or safety of any of our students, staff, or community members who use our sites.  Furthermore, the MTA is not willing or able to guarantee the safety of our students, staff, or community members. 

The above are just words if I am not willing to do everything in my power to safe guard our safety and future use of our property.  In our litigious society, that often means going to court and high legal fees.  Unlike other legal expenditures we have spent and are currently spending, we have a very good chance of recovering these fees through our eminent domain action.  One of our local papers continues to publish the legal fees spent with regard to Measure E, but they are already public and available on our web site, part of the Citizen Oversight Committees Reports, and in our annual audit reports.  This is not breaking news or investigative journalism, simply a reporting of the record we already are required and have provided to the community.  

Why fight?

My choice as a board member was either to roll over and say ok or to fight; fighting means spending money. Let me be clear that I am not happy about spending any general fund dollars or Measure E funds fighting the MTAs plans to tunnel under our high school and district property.  Our legal team believes that regardless of the outcome, our district will be able to recover at the very least the legal costs we have incurred, including all the seismic work that we were forced to perform in order to clear our sites of potential faults.  We strengthen our chances by going through the CEQA and eminent domain process.  The legal rationale says that even if MTA is ultimately successful at tunneling under our high school, they will still have to compensate the district for the right to tunnel.  Part of our real costs include the legal fees spent to defend ourselves and refute the faulty science that MTA relied on when determining we had active faults under our Beverly Hills High School.  We still have CEQA challenges to the EIRs and EIS and as part of any settlement will require MTA to pay for our legal costs associated with bringing these CEQA claims.  So my point is simple: although short term this takes money out of the general fund and Measure E, I believe that we will get those dollars back plus additional compensation for any "taking" or "easement" granted to MTA.  I also believe that now that we have moved into the litigation phase, those costs will come out of Measure E as the plans to tunnel under our high school and district property directly impact our ability to develop our property in accordance with the Measure E Bond.  To summarize, I believe that every dollar being spent to fight MTA will eventually be recovered and returned or in the alternative we stop the tunneling under the high school and save the costs (up to $30 million in additional costs) associated with building around MTA's tunnels.  

Why would MTA rely on faulty science?

MTA is a bully and is not used to having anyone stand up to them.  MTA is a quasi-governmental agency that has nearly unlimited funds.  Billions of dollars in tax payer funds run through the MTA, with that much money at play is it hard to understand the motivations of the staff and many of the Board members?  One only needs to follow the money. 

MTA never imagined that BHUSD would have or spend the resources necessary to challenge their science, most private property owners just roll over because the financial burden is just too high.  Determining that Beverly Hills High School has active faults served two purposes for MTA: 1) It supported their false claim that active faults exist on Santa Monica Blvd., bolstering their claim that they had no choice but to route the tunnel under the High School directly to JMB's property in Century City, and 2) by saying active faults existed on the Beverly Campus it devalued the "taking" claim the district would have through eminent domain claims, basically punishing us for standing up to MTA and ensuring that since active faults exist that there would be no economic loss to the District and therefore MTA would not need to pay as much or possibly anything at all for the right of way under our property.

MTA is used to getting its way and spending whatever it takes to get its way.  MTA has become what it replaced, remember the old corrupt Rapid Transit District (RTD).  MTA just replaced one entity with another.  If you want to understand the motivation for the MTA staff and many of its members just follow the money.  All roads lead to JMB, a Chicago based real estate investment firm who directly benefits from the new route directly under the heart of the High School campus.

Why so high?

Safety of students, staff, and the community is our number one concern and the State of California has some of the strictest safety laws when it comes to school construction.  We have to comply with the Field Act, Alquist-Priolo Act, codes and standards of the Department of State Architect, and the California Geological Survey (CGS). Once Metro's fault maps showed active faults under Beverly Hills High School and El Rodeo School we had no choice both legally and morally to investigate and determine what, if any, active faults existed under our schools.  I am proud to report that the final authority for determining fault mapping, the CGS, has completely cleared our High School site of any active faulting and we are in the process of completing the same work at El Rodeo School.

A little background:

The Alquist-Priolo Earthquake Fault Zoning (AP) Act was passed into law following the destructive February 9, 1971, Mw 6.6 San Fernando earthquake. The AP Act provides a mechanism for reducing losses from surface fault rupture on a statewide basis. The intent of the AP Act is to ensure public safety by prohibiting the siting of most structures for human occupancy across traces of active faults that constitute a potential hazard to structures from surface faulting or fault creep.


The Division of the State Architect provides design and construction oversight for K-12 schools, community colleges, and various other state-owned and leased facilities. The Division also develops accessibility, structural safety, fire and life safety, and historical building codes and standards utilized in various public and private buildings throughout the State of California.


The Division of the State Architect (DSA) is the jurisdictional authority within the State of California that provides enforcement of the Field Act in order to provide safe schools. The DSA has been reviewing plans and overseeing the construction of public school buildings for over 70 years. In that time no pupil or teacher has been injured or killed due to the failure of a building from exposure to earthquake, snow, wind or other loads. In the history of the Field Act, very few school buildings have been so severely damaged in an earthquake as to require demolition. Public awareness of the success of the school program has discouraged any change to the program that might weaken it.


In April 1860 the California Legislature established the Geological Survey of California that has evolved during its 150 years of service, and several name changes, into today's modern California Geological Survey (CGS). Of course, the earliest history of CGS has its founding roots entwined with the discovery of gold in 1848.

CGS is dedicated to the fulfillment of its mission to provide scientific products and services about the state's geology, seismology and mineral resources that affect the health, safety, and business interests of the people of California.

CGS geoscientists, engineers and support staff take great pride in upholding the heritage of an organization that has a 150 year legacy of providing the highest quality of scientific and engineering products and services to the State of California.

Altiora Petimus (1860)


Can you spend Measure E funds on MTA?

The board sought and received two legal opinions from two different firms supporting the Board's ability to use Measure E funds to stop the proposed plan to tunnel under the High School.  We have shared these legal opinions with members of the Citizen Oversight Committee to review.  Our legal counsel found a relationship between MTA's plans to tunnel and our ability to develop the high school site as well as the District Office site.  In addition, our experts have provided data that supports our assertion that tunneling under our high school will require the district to spend additional Measure E funds to comply with safety requirements associated with the Field Act and the Department of State Architects; preliminary figures show up to 30% higher costs to build and develop the high school site.  We plan to spend between $150-170 million of the bond funds at the High School, so we are talking about tens of millions of dollars never contemplated when Measure E was passed by the voters.  By not fighting MTA, we will be taking tens of millions of dollars earmarked for classroom improvements and instead spending those dollars to reinforce foundations to striatal tunnels running under instructional buildings.  In addition, much of the seismic, soil, electrical, mechanical and geological studies that have been conducted to support our position of not tunneling under the High School were reports and work that would have had to be done regardless as a part of Measure E Bond program.  So to be clear, these reports were necessary to comply with state requirements to build at school sites regardless of the MTA.  In order to provide the community with the best possible oversight of the Bond Program, we have a Citizens Oversight Committee, and their minutes and audits of the Measure E Funds are available on our website and have been presented, debated, and approved at several public board meetings.


To learn more about how and what we have spent Measure E bond funds on, I encourage you to visit the website: CITIZENS OVERSIGHT COMMITTEE PAGE. 

Knowledge is power.  While we can all agree that it would be better if we did not have to spend these funds on seismic studies and legal fees, the reality is that in order to ensure the safety of our schools and the ability to plan and prepare school sites for the 21st Century, we need as much flexibility as possible.  Having subway tunnels running directly under classroom spaces, when the MTA cannot guarantee our safety and those tunnels will have a direct impact on the costs and our ability to fully develop the site in the future is just not what a good steward of our schools would allow to happen without a fight.  This fight costs money.



We share the common goal of providing the best possible education for our children.
Brian David Goldberg, PhD
Beverly Hills Unified School District Governing Board Member