Judge Voids San Juan Capistrano School Action

Both sides in a dispute over building part of a Roman Catholic high school campus on an ancient American Indian burial ground claimed victory Friday after a judge voided the San Juan Capistrano City Council’s approval of the plan.

The ruling forces backers of the planned Junipero Serra High School to return with a ballot initiative to change the zoning of the 29-acre parcel at Camino Capistrano and Junipero Serra Road from office and commercial use to public and private institutional use. That would permit a school at the site.

Last year, school supporters filed a petition with the council seeking a special election. In October, council members approved the project without putting the question to voters.

The council, however, made several changes, including capping enrollment at 2,000 and having the school pay up to $200,000 a year in a student “head tax,” a compromise endorsed by a state-recognized representative of the Juaneno tribe, but rejected by other tribe members.

The Native American Sacred Site and Environmental Protection Assn. filed suit, arguing that by altering the terms of the initiative -- even if it never was put before voters -- the city violated the state Elections Code. Superior Court Judge Ronald Bauer agreed, saying the council can either reject or approve initiative petitions, but cannot amend them.

The ruling “puts them [school and city officials] back to square one,” said Damien Shilo of the Juanenos. “It enables us to inform the citizens of what the initiative was really about.”

The tribe contends that the property intended for the school’s athletic complex was most likely the burial ground for a Juaneno village known as Putiidhem and should be protected as a site of historical and religious significance.

Shilo said that school supporters claim that having an athletic field, a performing arts center, a gymnasium and a pool at the site would not have a significant impact on the graves. “It’s hard to put a swimming pool in and not disturb the ground,” Shilo said.

Tim Busch, a leader in the drive to open the school, said the ruling affirms the city’s authority to approve the project. He said he expects council members to approve it again.

Busch said the school will resubmit the original initiative to the city within 30 days.

“Now the City Council has to vote on the initiative alone, or it goes to the voters,” he said. “They have a decision to make, but we believe that the city will support us.”

Shilo believes, however, that once the voters are aware of the impacts a school would have on the area, public opinion will sway in the tribe’s favor.

“The citizens were never made aware of it being a burial ground of the tribe, and they weren’t informed of the traffic impact of a school,” he said.

Busch said the school will open next fall across the street from the burial ground, welcoming an inaugural class of about 300 freshmen and sophomores.

“This is what the democratic process is all about, Mayor John Gelff said of the court ruling. “The opportunity to be able to bring this forward into a forum in an attempt to create a resolution.”