(November 26)  The criminal prosecution of Fernand Bogman, which has already generated considerable negative publicity for the city of Upland, has been scheduled to go to trial by Judge Jon Ferguson on January 12, 2015.
The city of Upland, which has used a provision of its administrative citation ordinance to charge Bogman criminally for his refusal to water his lawn, failed to send its prosecutor to court on Monday, November 24. Bogman’s trial had previously been scheduled to start in earnest on November 17, but a courtroom was not available at that time. Ferguson had directed that Bogman return on November 24. He did so, but Upland prosecutor Dan Peelman was a no-show.
Peelman’s absence seemingly angered Ferguson, whose patience with the city of Upland appears to be wearing thin. With budgetary restrictions on the court system having resulted in a court realignment that has consolidated the court’s function into a few centralized courthouses in a way that puts courtrooms and court facilities at a premium, many are questioning why Upland is pursuing a criminal action against Bogman when such matters have traditionally been handled in a civil venue.
Moreover, the city’s entire action against Bogman has been subject to criticism in that the city has shown a lack of clarity, indeed some contradiction, with regard to its own standards, protocols, processes and comportment.
Topping that, the administrative citation ordinance, the very cudgel the city is using against Bogman, in the opinion of at least some legal professionals, is unconstitutional in that it violates the due process rights of those against whom it is employed.
At the basis of the city’s action against Bogman is a citation issued to him relating to his residence, located in the 1000 block of West 14th Street, in August 2013. In it, Bogman was cited for having allowed his lawn to turn brown. Bogman, who does not have official title to the property in question, informed the city he was not the owner of record. The city proceeded with its action against him anyway. Under the authority the city assumed as a consequence of the administrative citation ordinance the city had put in place following a controversial 3-2 vote of the city council the month prior to the issuance of the Bogman’s citation, a summary finding against him was made and collection of the fine was handed over to a collection agency.
Bogman protested the city’s action, only to be told the five-day deadline for making an appeal had elapsed. Citing principle, Bogman stood his ground and now the city is attempting to get a misdemeanor conviction against him for refusing to water his lawn.
Bogman acknowledges that he did in fact cease watering his lawn, having done so because of the continuing drought. Responsible public officials were calling for water conservation throughout the state, he claims, and he said he was personally convinced that “pouring buckets and buckets of water on grass, while water is growing ever more scarce, is immoral.”
Bogman contacted councilman Gino Filippi, who voted for the administrative citation ordinance, and councilman Glenn Bozar, who had voted against giving the city the power of administrative citation. He signaled his willingness to come to some accommodation with the city that would allow him to limit the use of water. Bogman was put in contact with then-acting city manager Martin Lomeli. Lomeli handed the matter off to lower ranking employees in the community development division.
Bogman currently has five trees on his property as well as shrubbery, which he continues to irrigate. He has installed a drip irrigation system, which delivers a precise amount of water to the base of the plants he has, providing an adequate amount of water to maintain the plants without wasting water. It was the water-intensive expanse of grass that cannot be maintained through drip irrigation that he was seeking to eliminate. He sought guidance from the city as to what would be considered acceptable drought-resistant landscaping alternatives. The city responded by telling him that he would need to come up with a plan and they would decide if it met with city officials’ approval. Unable to resolve the issue at the staff level, he again took it up with Lomeli. On August 28, 2014, Lomeli, making no reference to the nuance in his interchange with staff, told Bogman he had to try to preserve the remaining vegetation and comply with code enforcement and that otherwise the city prosecutor would continue legal action to resolve the issue.
On September 8, Bogman addressed the entire city council about his situation at that evening’s meeting. The following day he appeared for arraignment before Judge Ferguson, pleaded not guilty and was assigned a public defender. Later that day, Bogman went to Upland City Hall, where he met with community development director Jeff Zwack and discussed his situation. Zwack said he would consult his colleagues and check how to resolve the situation.
On September 29 he had a follow up meeting with Zwack in which there was an unproductive discussion about the definition of a drought tolerant scheme.
On October 7, Bogman’s pre-trial hearing was held before Judge Ferguson in which jury selection was set for November 14, with trial to being on November 17. On October 13 Bogman attended the Upland City Council meeting, at which he made a presentation showing several examples of where the city is in violation of its own code with regard to maintaining landscaping. On October 14. Bogman had a meeting with Upland’s new city manager, Rod Butler, in which Butler admitted the city had no definition of a drought tolerant scheme.
Because of a lack of courtroom availability, the case did not get under way as expected on November 17. The following week Peelman failed to show up in court.
The case against Bogman barely survived that faux pas. Judge Ferguson is looking at the city coming to court, ready to go, on January 12.
Bogman this week told the Sentinel, “There are allowances for drought tolerant landscaping. I considered my landscaping drought tolerant and in accordance with what the governor is doing and what the city is doing with its own property.”
Bogman’s first reference was to California Governor Jerry Brown, who has declared the state to be in crisis mode because of the drought and has accordingly ceased watering the lawn at the Governor’s Mansion in Sacremento. His second reference was to city properties that have likewise gone without irrigation for some time.
“Look at the lawn at the California Governor’s Mansion,” Bogman said. “He let his lawn die. I believe what I am doing is in accordance with what the city is doing with its property at City Hall and the library and other city properties. There are places where the city has property with no landscaping at all. What is good for the goose is good for the gander. What is good for the governor is good for the citizens of California. What is good for the city is good for its residents. If not there is a double standard.”
Bogman again came before the city council this week. In response, Councilman Glenn Bozar asked the city manager to look into what adjustments or clarifications the city should make with regard to its landscape maintenance regulations.
Bogman said city officials had blurred the distinction between California native plants and drought tolerant vegetation.
“They have leaflets about California native plants they hand out, but California native plants require a lot of water to develop their roots,” Bogman said. “We live here in the Inland Empire, which is a desert area. Native plants do not grow in the desert areas unless given sufficient water. That of course defeats the purpose of conserving water. If you look at a natural wildlife map, you will see the Inland Empire is classified as a desert. What grows in the desert is Joshua Trees and Yucca Trees and some cactus. Grass does not grow in the desert. I have proven that. What the city is asking citizens to do is convert to California native plants that are not viable under the current circumstances. They would like me to put in drought tolerant landscaping but are promoting the use of California native plants that I do not believe will survive if I put them in the ground. They will use a lot of water, which defeats the purpose of conserving water. I think the city should look at the ordinance they have and determine what are the options for this area. We need plants that are drought tolerant. “
A further example of the city proceeding into an area about which it has insufficient information, Bogman said, is that “The house is not in my name. I do not have title to the house. They are forcing me to meet their standards on a house I do not own. After the house is in my name I am willing to improve it with drought tolerant landscaping. So far I am doing exactly what the governor is doing and what the city is doing. I do not consider myself in violation of any code. “
In the meantime, local, regional and state newspapers as well as television and radio stations have picked up on the story. Upland is being portrayed over and over again as a jurisdiction that is engaging in heavy handed tactics to achieve a questionable end and enforce a policy of selfishness and vanity in which appearances take precedent over the state’s efforts to maintain an adequate water supply in the face of a four-year running drought.
Mayor Ray Musser admitted Upland has sustained a black eye so far in the action targeting Bogman.
“I don’t think we quite did our homework,” Musser said. It did not help, Musser said, that after dragging Bogman into court, the city prosecutor on the case did not show up. “That embarrassed us,” Musser said. “I don’t know if it was sloppiness on Mr. Peelman’s part or whether he legitimately had a family emergency that was a higher priority. Whatever it was, it was not good. It shouldn’t have happened. No one gave me a reason for that, so I can’t say for sure why it happened.”
It is also true, Musser said, that the city is “working on refining its definitions” of what is acceptable in terms of alternatives to traditional grass lawns in landscaping in residential zones.
He said that the code enforcement effort against Bogman and others started out as a legitimate outgrowth of government.
“I looked at his yard,” Musser said. “I think that dead grass looks terrible. It is just a piece of dirt. If I lived next door I would be upset. It is one thing to put in a drought tolerant cover, stones or pebbles or whatever, but it is another thing to put something out there that is completely dead and the wind is blowing across and kicking up dust. This is a minus-to-the-neighbors issue. At the same time, we need to give people guidance. The water situation is going to get worse before it gets better. We need to give more guidance about what you should do and can do. We should get people help if that is possible. If he doesn’t want to use water, he should put in artificial turf. Maybe he doesn’t want to spend the money, whatever it is per square foot, to do that. I believe he can get help from the Chino Water Basin to defray the cost, up to thirty percent or forty percent. I think artificial turf looks good. If he doesn’t have the money, then he won’t be able to go down that road at this time. “
With regard to the use of the administrative citation ordinance to essentially bully Bogman and others like him into compliance through an abbreviated adjudication process and by the application of exorbitant fines, Musser said he recognized that the city had not carried out a review of the ordinance one year after it went into effect, as the council had originally directed. “At the time, we had more important priorities,” the mayor said. “We had a changeover in city managers. I didn’t vote for that ordinance. I can’t justify the past We’re in a better position to review it at this point. There needs to be a standard that brings to a resolution those homeowners who are not in compliance and whose properties bring down the value of their neighbors’ properties. We need to deal with this. It is a big problem and it is a matter of timing.”
If convicted, Bogman faces penalties of up to six months in jail and a fine of $4,000.