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Judge clears way for CMSD to proceed with new school on Cudell park

Yellow caution tape is tied around the trunk of each of three trees on a lawn beside a fenced-in, asphalt athletic court.
Conor Morris
Ideastream Public Media
These trees, with yellow caution tape around them, at Cudell Commons Park on Cleveland's West Side will likely be removed to make way for the new Marion C. Seltzer school building.

Cleveland Metropolitan School District’s plans to replace Marion C. Seltzer Elementary School on the city’s West Side can now continue after a Cuyahoga County judge’s ruling Friday.

Concerned residents who live nearby had filed a request for an injunction to halt the district from removing mature trees and green space at Cudell Commons Park, which County Common Pleas Court Judge Ashley Kilbane denied in her decision. She also vacated a temporary restraining order which had halted the district from moving forward with the construction since September 2023.

Susan Zimmerman, a spokesperson for the group of nearby residents, Friends of Cudell Commons Park, said they were “very disappointed” in the judge’s ruling. They said they could possibly file an appeal and were hoping to speak with the school district and city’s leaders about their concerns.

CMSD spokesperson Phillip Morris said in a statement that the district is open to hearing those concerns but did not state when construction could start.

“We have learned that the temporary restraining order has been lifted, allowing us to proceed with the Marion Seltzer construction project," Morris wrote Wednesday. "The District's goal is to provide an optimal 21st-century learning environment for our scholars to ensure an unparalleled learning experience, and we are currently seeking to understand and hear feedback from the Marion Seltzer community as this matter continues forward."

Residents had alleged the district was removing green space and mature trees and was violating the original deed of donor Frank Cudell, who had asked that the property remain a park “forever.” The judge ruled the defendants had failed to prove they would actually be harmed by the plan for the new school, which calls for rebuilding the park in partnership with the city and planting new trees.

Kilbane also found that the way in which the deed of the park was transferred meant Cudell’s original will did not apply.

“While Mr. Cudell’s Will directed that the remaining land at issue become part of the Cudell Park Group ‘forever for park purposes,’ it specified only ‘after the death of my wife, Emma Mueller Cudell...,’” she wrote. “It is undisputed that the remaining land at issue was transferred to the City by Emma Cudell before her death in 1935, and it was conveyed without any language of restrictive covenants.”

Meanwhile, the school district and city have said they will work together to rebuild park lands that will be needed for the construction of the new Marion Seltzer school. CMSD’s architect had said last year that 34 trees at the park will be removed to make way for the new school facility. The design will rework the park to be sandwiched between the school and the nearby recreation center. The city also plans to build several new recreational amenities like a new basketball court, ballfield and a multi-purpose field.

Friends of Cudell Commons Park group members protested at a school board meeting in August 2023, raising the alarm about loss of green recreational space along with the loss of shade and other environmental benefits from the mature trees at the park. Some residents have also said their property value could be harmed by the changes to the park.

"Plaintiffs claims of harm only discuss the removal of trees, and mature trees; but they do not address how they would still be irreparably harmed after new trees are planted and grow into mature trees," Judge Kilbane wrote. "When complete, the Project will result in only a half-acre (or roughly 5 percent) loss of greenspace from the existing approximately nine to eleven-acre area of Cudell Commons. Defendants have sufficiently established in the record a plan to provide park, green space, activity space, and trees to the Project."

Plaintiff Brent Eysenbach argued the park is losing more green space than the defendants and Judge Kilbane are acknowledging, pointing to design documents for the project from last fall that were provided by CMSD during the legal proceedings. Those documents, shared with Ideastream Public Media by Eysenbach, show a 22% increase in "impervious area" - referring to artificial surfaces like pavement and concrete where water doesn't drain. He added that the city's work on the park likely won't be complete for several years; meanwhile, new trees planted will take decades to grow.

"The Friends of Cudell Commons call on our climate mayor, Mayor Justin Bibb, to intervene in this project and call a halt to CMSDs development plans," he said in a statement Wednesday. "Engage with the community in a transparent way and let's find a compromise solution that provides a much needed new school for the children while preserving Cudell Commons as a park and greenspace. After all, the school and the park have coexisted for decades... why does it have to be any different now?"

Ward 15 Councilmember Jenny Spencer also spoke up during the board meeting last year, noting that the city’s tree preservation ordinance fell short in this situation.

“The city forester did not review plans for Seltzer until designs were final, providing little chance to preserve trees that the designers themselves did not seek to preserve,” she said. “I'm a member of the city of Cleveland's Urban Forestry Commission, and we will be seeking to rectify this failure in our city's code.”

The school district began working in 2014 on plans to replace the current Marion C. Seltzer School with a new building. The school district and city approved a land swap in 2021 so the school district could gain access to land at the park, just to the north of the current site of the school.

Judge Kilbane was assigned to the case in December 2023 after County Common Pleas Court Judge Nancy Russo recused herself from the case "based upon a conflict, and to avoid the appearance of impropriety." It's not clear what the conflict was.

Updated: March 6, 2024 at 2:57 PM EST
This story has been updated to add statements from the school district and one of the plaintiffs in the case.
Conor Morris is the education reporter for Ideastream Public Media.