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By Mark Gutglueck
Upland city officials have yet to satisfy many city residents that the draft general plan now under review which is intended to fully update the comprehensive blueprint for the city’s development does not represent too radical of a departure from the city’s current character.
The general plan was last fully rewritten in 1992 and the document that will soon go before the council envisions a substantive change in terms of land use and crowding, both in Uplands residential neighborhoods and in its commercial zones.
At the center of the still-swirling controversy is Upland’s development services director, Jeff Zwack, who abruptly ushered the proposed updated planning document before the city council in March after the redrafting effort had been languishing on his desk for more than seven years. In 2008 the update effort began. It proceeded in fits and starts but has been marked by very little public exposure until recently.
From 2008 until April of this year there were only three actual public events held outside City Hall where the city actively sought to get citizen input. Those venues – the Scary-A-Fair, Craft Fair and the Christmas Parade, all in 2008 – were related to topics unlikely to attract people particularly concerned about land use issues. Over the next six years the planning department held four workshops and one open house where the public was invited to offer input on the city’s long term planning approach.
A utility bill mailing to Upland residents in April heralded the general plan update and a planning commission hearing on the subject was held on April 22. Zwack and other officials anticipated that another public review of the document would be staged in May and that it would then go to the city council for its review and approval in June.
At over 2,000 pages, the updated general plan presages changes in the nature of the city’s residential zones, with an upticking in housing density that will put as many as 55 units on a single acre while most of the city’s existing neighborhoods have fewer than eight homes per acre and the vast majority of those built more than three decades ago have fewer than six units per acre. In addition, the plan as drafted calls for what is referred to as mixed-uses, which include placing residential units atop commercial and office buildings.
After crawling along at a snail’s pace for more than six years, shrouded for the most part, in the backrooms of City Hall, the update suddenly appeared to be progressing at near light speed toward approval, with the public being shoehorned into a very limited set of open hearings at which its input was to be obtained. This created alarm among many residents, including the few who had merely begun to thumb through the voluminous general plan rewrite and even more of those who had no chance to examine it but had been told about it.
Some suggested that city staff members, members of the planning commission and even members of the city council had been paid off by developmental interests to do a rush job on the update before the public had an opportunity to thoroughly review it, let alone make objections to it or suggest changes.
City officials, however, downplayed such suggestions, dismissively characterizing the objections to the proposed plan as the belly-aching of just a handful of malcontents. At the last council meeting in May, however, there was a general outpouring of opposition to the plan, bordering on an insurrection. Reluctantly, the council extended the public review period on the document beyond the original 45 day period which had begun on March 8 and ended on April 22.
This week, the planning commission held a hearing to gather further public input on the matter. While some elements of the community signaled their readiness to see the new plan implemented, others evinced a continuing distrust of the council’s motives as well as the motives, wisdom and honesty of city staff still plugging the changes.
What was revealed at the meeting is that at least some of the city’s residents, primarily those opposed to it, had far greater knowledge of its contents than most of or even all of the planning commission members claimed or acknowledged. On more than one occasion, planning commission chairman Gary Schwary evinced complete ignorance or mystification as to certain provisions contained in the document when those provisions were referenced by speakers. Further revealed was that staff has begun work on a substitute draft plan that is in some or even many respects different from the plan that has been released to the public. This revelation came as a severe blow to the credibility of city officials, who allowed the public input on the environmental impact report for the general plan change to elapse on the day of the hearing. In this way the environmental report the city is paying to have processed will not pertain to the document that is eventually to be adopted by the city council.
Several Upland residents expressed concerns about political and social dictates being insinuated into the new general plan document. Todd Mills said the proposed general plan update states “We should redesign our city around ‘smart growth and social equality.”
Diane Fedele, furthered that theme, making pointed references to the overweening nature of the new general plan
“I know we are currently in a drought and have had two other serious droughts in the past 30 years or so, but we won’t always be in a drought,” Fedele said. “Yet these rules and restrictions are written with no end in sight. I and many other Upland residents have landscaped their yards during both the good and bad times and what we have accomplished is part of what makes Upland the City of Gracious Living. Why are you requiring us to comply with your vision of what you want Upland to become and not allow us, as individual homeowners, to spend our own money on what we want and hw we want it to be? In redoing my landscaping, I must provide a landscape and irrigation plan for approval. This plan may be self prepared or done by a licensed landscape architect or landscape professional. If it is approved, then I will be issued a construction permit. All the detail required on these plans is beyond significant: For instance a lengthy listing of the botanical and common names of plants, the total quantities by container size and species, and the spacing in which they will be planted, along with a description of existing plant material to be retained or removed is required. A minimum of turf area is not to exceed the annual water allowance. Calculations are required for parking and site landscape areas in square feet and per lot. Also a plan cannot have the turf portion exceed 25 percent of the landscaped area.”
Directly addressing Zwack, Fedele continued, “I asked what would happen if I decided to redo my backyard and not get a permit, how would you know? You said that my neighbors would report me or you would notice it through my activity. I am pleased with my lawn, yet you asked what my neighbors said about it. You are asking that any of my neighbors concerned about my lawn or backyard report me. Really? I thought this was America.”
Dean Mills offered to the planning commission evidence that city staff had failed to make full disclosure of what is in the proposed new plan and had further created alternate versions of it without providing them to the city’s residents. In the first instance, Mills displayed a computer flash drive which he said contained the digital file containing the proposed updated general plan downloaded from the city’s old website and the version originally loaded on the city’s recently updated website. Both, he said, were missing, between the document’s table of contents and its land use section, the introduction in which the section designated “vision and key values” was contained. It was only within the last week, after he informed the city that the vision and values element was missing that city staff posted a version of the document with that portion intact, he said. Likewise, Mills said, the document offered for public review at the Upland Library lacked the vision and values passage as well.
Suggesting but not directly stating that the expurgated version had been substituted for the unredacted document to hide critical facts from the city’s residents, Mills said the posting of an incomplete document “doesn’t meet the requirement for full public disclosure and review.” He asked for “the period for public review to be extended.”
Mills went on to state that city staff had created a “red lined” document, i.e., one containing staff’s emendations to the originally generated new general plan, which staff was refusing to release publicly. In this way, Mills said, the general plan document as is proposed is constantly evolving and at any given time the public discussion about it is inexact and in some measure uniformed. “There appears to be some irregularities in terms of missing documents” Mills said, characterizing staff’s alterations of the plan as action going on in “closed session. Will you provide access to the red lined document?” he asked.
Zwack said that the red lined document represented a work product that was not finalized, calling it a “midstream document. It is not appropriate to release it midstream,” he said.
Deputy city attorney Yolanda Summerhill said that the public comment period for the environmental impact report relating to the revised general plan had been closed out. Summerhill did not address at all the possibility or likelihood that the general plan document submitted in March will undergo significant changes before it is presented to the city council for approval, as was indicated in Zwack’s acknowledgement that there currently exists a red lined, midstream version of it. Her comments did not touch on whether there would be a need to provide another environmental impact report based upon the more recent form of the new general plan and whether another public comment period for that environmental impact review will be provided.
Two days after the meeting, city attorney Richard Adams said, “If there is a decision by anybody that would reduce the impacts there would be no need to conduct another environmental analysis but if there was a decision that would increase the impacts, that would spiral into having to do further study.”
Dean Mills’ son, Todd, said the document put forth by the city was not only flawed, it represented a developmental agenda promulgated by certain staff members rather than the residents of the city and that the approval process should be tabled indefinitely so the plan could be rewritten in a manner involving resident participation.
The upshot of Todd Mills’ assertions was that the plan envisions much higher density in future development than is desired by the vast majority of the city’s residents. He suggested that a relative handful of business interests whom he mentioned by name have an interest in keeping protests against the high density embodied in the general plan from manifesting. “The general plan needs to be rewritten. No average John Q. Public was involved in forming what he visualizes in creating the stakeholders’ document. The general plan as written does not represent what he wants. This document grew out of the vision of those who have a financial interest in higher density. Randall Lewis of Lewis Homes, Frank Williams of the Building Industry Association, Bob Cable of Cable Airport and planning commission member Bill Velto of Tarbell Realty are the people who will benefit from the denser vision. The design principle is to move people into compact high density developments.”
Todd Mills said the city was employing the concept of “smart growth” into the plan, which he defined as “an insidious national political movement based on environmental extremism, social equity, and economic fairness designed to change the behavior of residents. They want people to live, work, play and die all in the same neighborhood, in the same building if possible. You have not even asked the residents if they want smart growth.”
Todd Mills was critical of the portion of the plan relating to high rise buildings, in particular its allowance of structures of six and seven stories.
He said city staff and Jeff Zwack in particular had misrepresented the nature of the new plan and its call for higher density in future and in-fill development. In direct reference to Jeff Zwack, Todd Mills said, “When they asked if this is encouraging high density, you told them no.” Todd Mills then went on to quote directly from the language contained in the new general plan draft, citing such phrases as “encourage high density multi-family housing” and “support the development of high density mixed use projects.” Todd Mills continued, “The housing element mentions high density residential development downtown. Old town – 35 units per acre. 55 units per acre downtown. There will be high density near the Montclair Transit Center.” He then addressed Zwck directly “Since you told everyone there is no high density, you will have no problem removing high density from the plan.”
Zwack acknowledged that the historic downtown specific plan, which was developed in and voted upon in 2011, specifies a maximum density of 55 units per acre.
“That is no secret,” Zwack expostulated in seeking to ward off Mills’ charge that he had been economical with the truth. “That was vetted through public workshops. The downtown specific plan is identified as a region in our general plan. Our comment is that the densities throughout the city except downtown are 20 units per acre.”
Zwack’s statement, which carried with it the presumption that 20 units per acre did not constitute high density, elicited gasps and groans from the audience.
With regard to “six or seven story buildings,” Zwack said the city was considering “layers” of options in 2008, shortly after the general plan update effort had begun. Staff was attempting to “get a variety of the community’s input,” Zwack said, when the concept of “six or seven stories” came up. He said vestiges of that consideration remain in the Colonies Specific Plan.
Planning commission Gary Schwary, speaking, apparently, for his colleagues, though they did not comment one way or the other, stated, “We want to make sure we are not allowing six or seven story anything.”
Zwack responded that in the “draft” of the general plan “mixed use zone commercial office [buildings] have a structural height of 70 feet. We are proposing to reduce that if individuals or groups have recommended changes.”
Virginia Shannon questioned the level of growth anticipated in the new general plan, which is roughly set at 8,000 residents, while the city is under a mandate to reduce water usage.
“How do you intend to meet the water needs when you want to bring in more people and businesses?” Shannon asked.
Marilyn Mills, Dean Mills’ wife and Todd’s mother, said that city officials had earlier ignored protests about the general plan update, dismissing as insignificant the questions and objections raised by residents earlier this year. She taunted the commission with a letter signed by 542 Upland residents who are opposed to the plan. “I am one of them,” she said. She charged that the general plan update had a political bent, which she called “unconstitutional. Political philosophies have no place in the general plan,” she said.
Two residents of the city, both coincidentally bearing the first names of Eric, expressed support for the general plan makeover.
One, Eric Gavin, enunciated the belief that higher density and more intensive city regulation of the minutiae of residents’ lives is a positive step rather than a negative one. He said he wanted to express “support for the general plan.” He said he appreciated the controversy it had generated because it made planning commission meetings “dramatically more exciting.” He said the long and short of it was that a Big Brother approach by government was needed, given the realities, exigencies and resource limitations of modern life. He took at swipe at Todd Mills for rejecting the principles of smart growth and social equality promoted by the general plan and inherent in it, sarcastically remarking that “dumb growth and social inequality” should be the guideposts for a new city planning blueprint.
Gavin said, speaking for the opponents of the plan, that they had taken the position “The plan is basically intended to make me do something I don’t want to do.” Gavin said those opponents were correct in that perception but he went on to say that people being told what to do is now a necessity because “We live on a planet with seven billion people on it.” Because there are “too many people,” Gavin said, “restrictions and conditions” are rightly imposed on people. He cited the example of what had occurred in “London during the 1950s. People burnt so much coal it created smoke so thick you could not see two feet in front of your face. The government said, ‘You cannot burn coal anymore.’” Londoners protested, Gavin said, complaining that the government was intruding on their rights to burn coal as they saw fit. But, Gavin said, “12,000 people died from respiratory conditions from that fog.” He then applied the analogy locally. “There’s more people in Upland now,” he said, asserting he could freely do “what I want to do in my own house or my own lawn only if it doesn’t affect everyone in the city or in the nation. We have to work together and play together so we can get along.”
Eric Hanson said the plan essentially embodied a good direction for the city and that continuously seeking to tweak it into something better was a futile undertaking.
“This document, no matter how much we try, will never be perfect,” Hanson said. “We can beat this into the ground, but it will not be perfect.”
Sweating the details will just result in unnecessary delay and doing so ignores the reality that it will be those who come forward to invest in the city and take some form of entrepreneurial risk who will drive what is developed rather than the plan itself, Hanson said.
“It will allow development to a certain density,” Hanson said. “It doesn’t mean a developer will find it profitable. Those people beating the drum to [reconsider the plan, alter it drastically or throw it out altogether], Hanson said, should take stock of the fact that those putting it together, including Zwack, other city staff members and members of the planning commission “are rational people who have a long-term interest in the betterment of the city. The city is not run by developers. There is no big conspiracy. We have to move this thing forward.”
Hanson said concern about the city’s direction was more properly vectored to “the planning counter” where staff resistant to the forward-looking plans of already existing business operators to expand their businesses or prospective business owners looking to obtain permits to operate were being thwarted by bureaucracy and red tape and unreasonable application processing delays.
A group of Chino and Chino Hills residents are contemplating a recall effort against two of the members of the Chino Valley Unified School District Board of Trustees, the Sentinel has learned.
The talk of a recall comes more than eight months after the Freedom From Religion Foundation of Madison, Wisconsin filed suit in Federal Court in Riverside against the district on behalf of two named plaintiffs, Larry Maldonado and Mike Anderson, and 21 unnamed plaintiffs who asserted they were alienated or intimidated at school board meetings because of overt and constant references to Christianity, including “prayers, Bible readings and proselytizing.”
As that case is wending its way toward trial, one of the school board members accused of openly espousing his religious beliefs during school district functions, Andrew Cruz, courted further controversy with internet postings that some consider to be laden with messages of religious bigotry and intolerance of homosexuals.
In its suit against the district, the Freedom From Religion Foundation has cited Cruz and his fellow board member, James Na, for their recurrent efforts at secularizing the public hearings. Both Cruz and Na are members of the Chino Hills Calvary Chapel, a church led by the Reverend Jack Hibbs, who had successfully lobbied the board previously to include Bible study classes as part of the district’s high school curriculum. Hibbs evinces a denominationalist attitude, which holds that Christians have a duty to take over public office and promote their religious beliefs. Both Na and Cruz were able to convince the remainder of the board that the district would not sustain any costs or liability as a consequence of defending against the suit and in January the board voted 3-2 against hiring the law firm which normally represents the district to respond to the suit. Instead, the district engaged the Sacramento-based Pacific Justice Institute for $1 to defend the district in the civil lawsuit.
The Pacific Justice Institute, founded and led by Brad Dacus, touts itself as a public interest law firm that “handles cases addressing religious freedom, including church and private school rights issues, curtailments to evangelism by the government, harassment because of religious faith, employers attacked for their religious-based policies, [and] students and teachers’ rights to share their faith at public schools.” Critics of the Pacific Justice Institute characterize it as a “Radical Right extremist Christian law firm.”
While the Freedom From Religion Foundation originally was seeking relief in the form of the district simply discontinuing the overt Christian references at its various functions, taking the matter to trial may result in considerable costs to the district if it loses the case, as many impartial legal observers believe likely.
Many of those pursuing the recall have come to the conclusion that neither Na nor Cruz can be reasoned with and that they misunderstand the concept of freedom of religion, construing that principle to mean they are free to use the bully pulpit of their public office to proselytize others with their personal brand of Christianity and enunciate their rejection of other religious or social beliefs which clash with their own.
Many of Cruz and Na’s supporters, however, are not alarmed by the incipient political action against the duo, trusting in Divine Providence and comfortable in the belief that the Chino Valley is a God-fearing Christian community where those carrying out the Lord’s Will abide in the protection of His Holy Hand.
SAN BERNARDINO—The San Bernardino County Sheriff’s Department has moved to protect one of its officers after he was involved in a traffic collision in which he ran a red light while rushing to assist another officer, witnesses and an individual with ties to the department have told the Sentinel.
The department has declined to identify the officer in question, while propounding a description of the accident which witnesses say glosses over the deputy’s violation of not only traffic law but department policy relating to how department vehicles should be deployed during emergency procedures.
Of crucial importance are witness accounts which hold that the sheriff’s deputy had not engaged his unit’s lights and siren and that it was the sheriff’s patrol car which broadsided the civilian vehicle in the collision. According to two official accounts provided by the department, the sheriff’s vehicle was traveling with its lights and siren on and it was the civilian vehicle that ran into the car driven by the deputy.
This much is known to have happened: A gold Buick four door sedan driven by Thomas Brannan, a 51-year-old resident of Victorville, and a marked sheriff’s patrol unit, driven by an as-yet publicly unidentified sheriff’s deputy, collided in the intersection of Del Rosa and Highland Avenues at approximately 8:52 a.m. on Sunday July 19.
The precise details are less than clear.
The sheriff’s department put out a press release concerning the incident, the summary from which reads as follows: “On Sunday, July 19th, at about 0852 hours, an on-duty Deputy Sheriff was responding to an emergency call with (code 3) lights and siren activated. The deputy was driving south on Del Rosa Avenue and came to the intersection of Highland Avenue, in the city of San Bernardino. At the same time, Brannan was driving east on Highland approaching the same intersection. The front of the Buick collided into the passenger’s side front of the patrol unit in a broadside manner. After impact, the vehicles were diverted to their point of rest on the southeast corner of the intersection. The front of the patrol unit collided with a signal pole and the Buick collided with a water main. Both parties suffered minor injuries and were transported to local hospitals.”
Later that day, sheriff’s corporal Mark Addy, who heads a traffic accident investigative unit based in Rancho Cucamonga, made this statement, which was captured on video:
“Today we responded to an officer-involved collision at the intersection of Highland and Del Rosa in the city of San Bernardino. Our deputy sheriff was rolling code three with lights and sirens to an emergency call He was headed southbound on Del Rosa. As he came through the intersection with his lights and siren still activated he was broadsided by this vehicle. Both vehicles came to rest on the southeast corner of the roadway. Each party suffered minor injuries, nothing fatal, nothing too serious. The were both transported to local hospitals where they are still being treated.”
But the nearly indistinguishable versions of events in the department’s press release and Addy’s statement were contradicted by three others, including two witnesses at the Del Rosa and Highland intersection when the crash occurred.
“I was standing on the corner near Walgreens,” one witness told the Sentinel. “The sheriff’s car did not have its lights and siren on. He hit the guy.”
According to the witness, “The sheriff’s car ran the red light. He had the red light as he was coming up. There was another car coming toward Del Rosa at the same time. There was a lady in the crosswalk and she had to jump back about three steps to deep from being hit. The guy who was hit got out of his car because it looked like his car was going to catch on fire because the smoke was really bad. We tried to help the officer out of the car but he didn’t want to get out and he stayed there, He wouldn’t really look at us. You would think he was dead. I dialed 911 and couldn’t get an answer. I hung up and tried again. I still could not get them to answer. I finally dialed again and let it just keep ringing. It rang about 20 times before they finally answered. I told him there was a serious accident. After that there was a firetruck there and then the helicopter and whole bunch of police cars. When the ambulance came, the officer did get out of his car and he laid down in the stretcher.”
On Tuesday, July 21, the San Bernardino Sun ran an article, authored by Doug Sanders in which Addy was first paraphrased as having said, “the deputy… was driving south on Del Rosa Avenue with his overhead lights and siren on when he slowed to cross Highland Avenue” and then quoted as having said, “As he came through the intersection with his lights and sirens still activated he was broadsided by the other vehicle.”
The witness told the Sentinel she read that article and “It was written just the opposite of the way it was. The officer’s car ran into the other car. And it did not have its lights or siren going,”
She provided a statement to the first set of investigating officers to arrive on the scene, the witness said, as did another woman who was standing nearby. “After we gave them our story, that lady said, ‘I bet they are going to change around what we just told them. She was right. The story that came out is the exact opposite of what really happened.”
One well-placed source told the Sentinel, “The article states that the deputy was driving with lights and sirens, and that another man ran the red light. I happen to know that this is wrong,” stating that there is “suspicion and fear that the department would cover it up and try to blame the other driver.”
As of Thursday, the Sentinel has learned, one of the witnesses and another individual, concerned that Brannan will be determined to be at fault, are attempting to track him down so that the witness’s statement can be provided to his insurance company.
According to the department, the sheriff’s department’s regional major accident investigation team, in which Addy is a lead officer, is investigating the incident.
Reached at his Rancho Cucamonga office, Addy told the Sentinel that his videotaped statement in which he claimed the unidentified deputy had engaged his patrol unit’s lights and siren and was broadsided in the intersection was based on “information I got from my investigating officers, the department press release and witnesses.”
Addy doubled down on the claim that the witnesses supported the claim the lights and siren on the patrol car were on and that it was Brannan who ran into the patrol car and not the other way around. “We have several witnesses the investigating officers talked with,” he said.
Asked if there were contradictory statements given by the witnesses, Addy said, “I am not going to disclose that, but we do have witnesses that back up what the press release stated.
Addy said there was not a red light camera at the intersection to show which car had the green light and which had the red light when the collision occurred. He did acknowledge, however, that the patrol unit did have a black box which will allow investigators to determine if the lights and siren were activated just before and at the time of the collision. Asked if data from the black box had been downloaded and evaluated at this point, Addy said, “This is a complicated investigation. It may be several months before it is completed.”
Any discrepancies between witness statements will be resolved, Addy said. “Traffic investigations are very black and white,” he said. There is no grey.”
Pressed as to whether there were any contradictions in the evidence or witness statements examined so far and whether statements which contradicted his and the department’s version of events were being downplayed, ignored or changed to achieve a prearranged outcome to protect the unidentified officer involved in the collision, Addy said, “This is a very fair investigation. I have faith in my investigators. They are very thorough. Everything will be examined and nothing will be overlooked.”
If it turns out that the description of what occurred that he gave on the video and the department’s press release are shown to be inaccurate when the investigation is concluded, Addy said, the record will be corrected. “If the investigation shows we missed something or misspoke or it did not occur as we said, our press division can always recant and put out another press release,” he said.
The Falossi-Koenig civil trial testing basic land use issues in the rustic desert community of Yucca Valley moved into its second week on Monday, continuing until Thursday, at which point the proceedings were suspended because of the judge’s anticipated absence until August 3.
Testifying from the stand this week were plaintiff David Falossi, the sculptor of oversized stone, metal and glass art pieces whose industrial activities in the midst of a residential zone coupled with his claim to “unfettered access and use” of dirt roads on his neighbors’ properties led to the legal contretemps, neighbor Fritz Koenig, whose objections to the scale of Falossi’s operation and its intrusion onto his own property to carry it out lies at the basis of the dispute, and another neighbor, Nora Fraser, over whose property the dirt road Mr. Falossi likewise claims he is entitled to “unfettered” use runs.
In much of his time on the stand, Falossi described his use and function of the road, Hoot Owl Trail, which runs across land belonging to Koenig and Fraser. Falossi explained he and his family have used his neighbors’ land since moving to Yucca Valley in 1989 for regular residential purposes as well as in conjunction with his art studio operations. Last week, Falossi’s daughter, Marissa Corson a realtor operating in La Quinta, testified under cross examination by Koenig that her father uses a flatbed diesel truck loaded with large blocks of rock and stone. Falossi’s website indicates he additionally uses metal and glass used in constructing his oversized three-dimensional artwork which is most commonly used for outdoors decorative purposes. Loaded with his larger products, Falossi’s trucks weigh in excess of 20,000 pounds as they cross the land of Koenig and Fraser in a town which sets 10,000 pounds as the limit for commercial traffic on residential streets.
Also testifying about the use of the road was another resident of the area, Dennis Pask, who has stated he favors Falossi in his dispute with Koenig and has “walked the neighborhood” to gather signatures for petitions to the Yucca Valley Town Council in support Falossi’s artist studio operation.
Falossi’s case against Koenig and another of their neighbors, Nora Fraser, filed in January 2013, and Koenig’s case against Falossi, filed subsequently, were earlier consolidated by Judge John Pacheco into a single case and both are now assigned to Judge David Cohn.
Falossi and Koenig live on Hoot Owl Trail in a rustic area in Yucca Valley, on adjoining parcels. Hoot Owl Trail is a dirt road that winds through the area, which appears to be a typical expanse of desert throughout the Mojave, featuring chaparral, creosote, mesquite and scrub brush and yucca, juniper, and Joshua trees, as well as cacti. Besides the one large home complex on Falossi’s property and a home and separate cabin on Koenig’s parcels, there are four other residential properties along Hoot Owl Trail, all of which are two-and-a-half acres or more. Ingress and egress over Hoot Owl Trail is in dispute where it passes over Koenig’s and Fraser’s properties. They maintain that their neighbors can use it to access their properties, but only in accordance with an intensity of use consistent with residences. Koenig and Fraser have granted such passage as “a neighborly accommodation.” and not by absolute right.
Falossi works from his home studio located on Hoot Owl Trail. Falossi initiated legal action against Koenig in June 2005, seeking a civil restraining order, but withdrew it within a week. In January 2009, Falossi filed another lawsuit against Koenig, asserting that Koenig had harassed him, his wife and his seven children. The outcome of that suit included an order from Judge J. David Mazurek enjoining Koenig from blocking Falossi from coming across Koenig’s property. Mazurek’s order expired in May of 2012. In January 2013, Falossi filed one of the suits Cohn is now hearing, this time against Koenig and Nora Fraser, further seeking to obtain the permanent right to transit over the portions of Hoot Owl Trail which stretch across Koenig’s and Fraser’s properties. In particular, Falossi wants to prevent both Koenig and Fraser from keeping his forklift or loaded or unloaded ten-ton transport truck from traversing their land.
Upon investigation, Koenig filed a separate lawsuit against Falossi for unlawful business practices related to Falossi’s home business of large sculpture production. Koenig maintains that what he characterizes as the industrial nature of Falossi’s fabricating operation that is central to his sculpturing and artwork goes well beyond the scope and intensity of activity that is normally and legally permitted in home-based businesses, both in Yucca Valley and elsewhere. Additionally, Koenig alleges Falossi operated without require permits from 1989 to 2005, often fails to renew his permit, and recently operated without a permit for over 3 years.
Koenig has asserted that the activity ongoing on Falossi’s property, which involves welding, stone grinding and glass grinding, is incompatible with a rural residential neighborhood and out of compliance with the town’s codes that were in effect since shortly after the town’s incorporation. Moreover, Koenig has objected to Falossi utilizing the dirt road across his property to support that operation, saying Falossi’s use of a forklift and a large truck to transport to and from his home studio both the raw material Falossi uses in his fabrication process as well as the finished artwork, which in some cases weighs in excess of ten thousand pounds, goes well beyond the spirit of neighborly accommodation of allowing the Falossi family to simply drive or walk to and from their home.
Last week, Falossi testified that trash trucks transit the road regularly and that he had also seen hay trucks, dump trucks and delivery trucks on Hoot Owl Trail. This week he gave further testimony relating to the road, his use of it, efforts to maintain it and his earlier cooperation with Koenig in seeking to limit the volume and intensity of traffic and passage over it.
Falossi, who has lived in the residence on his property since 1989, acknowledged that shortly after Koenig moved to one of the parcels that adjoin his on Hoot Owl Trail in 2004, he fashioned two identical wooden “private driveway” signs, one of which he installed as a gift to Koenig after he inquired about how to respond to uninvited parties on Koenig’s land. Those signs, Falossi testified, were intended to “discourage people from using Hoot Owl Trail.” Falossi stated that before Koenig and Fraser purchased their property, he placed a large stone monument at the sole entrance to the neighborhood which announces, “Boulder Ridge – A Private Community.” He then testified that the intention of this sign was to “improve the neighborhood.”
Falossi testified that he had used a “drag bar” to maintain, i.e., even the surface of, Hoot Owl Trail and had worked with others living on the road to keep the road passable and had on occasion contributed money, as a member of an informal collection of residents along Hoot Owl Trail, to a fund out of which local heavy equipment operators were occasionally hired to scrape the road.
Falossi in his testimony said that Hoot Owl Trail has been “in the same placement,” i.e., consistently contoured and located, for years. In his testimony, Falossi also noted that Koenig had positioned rocks along one side of the road to prevent it being widened further. He registered his objection to that, but said he had lodged no official objection at the time, but had reported to then-Yucca Valley Town Manager Mark Nuami that Koenig had put them there. Falossi said the placement of the rocks had resulted in “near misses” involving vehicles on the road, including one a tenant on one of his properties had with another motorist. When Koenig asked about the speed of those driving on Hoot Owl Trail and what the speed limit there is, Falossi said a ten mile an hour speed limit applied to his family and himself, suggesting without directly stating that while he drove at safe speeds others using the road do not.
Falossi testified conditions on the road have change since 2013 in that there are more bumps on the road and the drought has impaired the ability to maintain the road because it does not get wet enough to be packed down.
Dennis Pask, whose house is located roughly 1,300 feet from Hoot Owl Trail, said that traditionally the residents along Hoot Owl Trail had banded together as a loosely-knit collective to maintain the road, using shovels and wheelbarrows. He further explained that around 2004 or 2005 they had informally created a “road committee” and had “passed the hat” to hire someone to grade the road. Pask, who said he was better acquainted with and friendlier toward Falossi than Koenig, said that by November 2007, Hoot Owl Trial was in a state of disrepair, was deteriorated and unsafe. He said he twice graded the road, which resulted in Koenig suing him over a January 2008 alteration of the road across Koenig’s property. At that point in his testimony, Pask claimed there was an “easement,” i.e., right of others to pass unhindered over Koenig’s property in the federal land patent pertaining to Koenig’s property. Koenig objected to the use of the term easement, citing that no such language is contained in the patent and Pask’s use of the term in that context required a legal definition that Pask had not correctly made. Cohn sustained the objection.
The concept of easement and whether or not one exists on Koenig’s and Fraser’s properties is crucial to the case. The law of easements is complex conflicting and confounding. A land easement is a right held by a party to make use of another’s land for a limited purpose, such as a right of passage across a neighbor’s property. An easement may be established on a property owner’s property by his or her permission, or, against his or her wishes after certain conditions have been met.
Creation of an easement by prescription (without permission) requires at least that the beneficiary party openly use the property of another party continuously, for a statutorily prescribed number of years in a manner adverse to title held by the owner without the owner raising a formal objection and by claim of right. Koenig maintains he has raised objections to Falossi’s manner of use of his property going beyond the spirit and expressed intent of the “neighborly accommodation” with both the town of Yucca Valley and courts well within the statutorily described time limits since shortly after he purchased the property in 2004.
Koenig’s argument, essentially, is that no precriptive easement has been established and that his neighborly accommodations extends only so far as permitting transit across his property that is compatible with his neighborhood existing as a residential zone and not an industrial zone. Falossi’s use of his own residentially zoned property that is out of keeping with the residential zoning of the neighborhood is not something, Koenig maintains, he is obliged to accept, condone and facilitate. He therefore wants to draw the line on allowing Falossi to use the large vehicles and forklifts or any other means of conveyance to carry materials utlizied in the industrial scale operations.
Of note is that, seemingly in response to Koenig’s challenge of Falossi’s operation, the town has thrice acted to liberalized its codes, once in pertaining to the size and weight of vehicles that can make deliveries to or pick up items from residential properties located in residential zones, once with respect to the standards contained in the licensing granted to home-based businesses and, more recently, a proposed blanket exemption, with a final vote scheduled August 3, 2015, for “art studios” from the standards applied to home-based businesses. Despite those liberalizations, Koenig claims Falossi is still yet out of compliance with several elements of the town of Yucca Valley’s land use policy and zoning codes.
In this way, among the issues to be decided by Cohn are whether Koenig in fact has complete discretion over the degree of neighborly accommodation he extends to his neighbors, including Falossi; whether the neighborly accommodation Koenig has agreed to has ripened into an easement; what limitations apply to that easement if it in fact exists; whether Falossi has overburdened that easement if it indeed it exists; whether Falossi’s overburdening of the easement, if it does exist, should result in either the reduction of the easement or its extinguising altogether or whether Koenig can be and should be compelled to accommodate Falossi’s business operation and its impacts on Koenig’s property and the neighborhood in general.
When Koenig made his objection to Pask’s citation of the federal patent relating to the land along Hoot Owl Trail, Cohn signaled the potential direction of his rulings, saying that he was uncertain how the federal patents are relevant to the case.
Pask testified that Koenig was not present when some of what he called improvements to Hoot Owl Trail were carried out. Pask acknowledged that Koenig’s lawsuit against him was dismissed after he desisted in altering the portion of Hoot Owl Trail crossing Koenig’s property. Pask also testified that Koenig;s placement of rocks and boulders along the periphery of one section of Hoot Owl Trail changed it from a two lane road to a single lane road.
There did emerge one point of contradiction between Falossi’s testimony and that of Pask. Falossi had testified that Hoot Own Trail had never washed out or proven impassible, but that a road that led off Hoot Owl Trail, Tish Lane, had been impassible from 1989 until 2005. Pask testified that he had always been able to transit Tish Lane. The passibility of Tish Lane is of importance in that it links Hoot Owl Trail with another street, Grand Avenue, which parallels Hoot Owl Trail. The combination of Grand Avenue Tish Trail offer a variant route to the Falossi property that would obviate Falossi’s need to use Hoot Owl Trail.
Pask further testified that he had received a letter from Fraser informing him she no longer wanted him to maintain that portion of the road running over her property.
Offering testimony was Edward J. Bonadiman, a licensed surveyor based across the street from the Courthouse in downtown San Bernardino who had been hired by Falossi. Bonadamin offered into evidence a map of the properties around Hoot Owl Trail. That map was conditionally accepted by Cohn after Koenig’s objections to the scope of its meaning. Falossi’s legal team, led by Catherine Gayer, sought to elicit testimony from Bonadiman to the effect that the Hoot Owl Trail was properly laid out and placed and in fact could not have been diverted from where it was or have logically followed a different path. Koenig succeeded in challenging Bonadiman’s credentials, getting him to acknowledge he was not a licensed civil engineer or urban planner, although he had worked with such licensed professionals. Cohn agreed to hear Bondadiman’s testimony but accord it weight based upon his lack of expertise and licensure in the areas of engineering and road placement.
In accordance with Judge Cohn’s suggestions during open court, Koenig via his attorney reached a settlement with the Falossi legal team over the latter’s earlier submission of a motion calling for contempt of court sanctions which could ultimately expose Koenig to time in jail for what was alleged to be Koenig’s defiance of a protective order issued by Cohn restricting the distribution of discovery material from the case. Koenig was alleged to have provided that material to the Yucca Valley Town Council prior to its deliberations relating to a vote to liberalize those sections of the town code relating to licensing home-based businesses and art studios. Cohn’s protective order did contain an exception for distribution to governmental and regulatory agencies. Cohn gave indication he would not hold Koenig in contempt. Koenig’s attorney stated that Koenig would release the Town of Yucca Valley from liability should they destroy certain documents in their possession.
Falossi finished presenting his case. Fraser’s attorney made, and Koenig joined several written motions for judgment to dismiss all the parts of the case with a claim that Falossi had not proved his case. After lengthy reading, Judge Cohn denied the motion, offering explanations of his reasoning. Koenig made an oral motion based upon Hornbook law of interpretation of language seeking to have Cohn render a judgment that no express easement arose out of the federal land patent pertaining to the properties along Hoot Owl Trail and Koenig’s property specifically, in that the word easement is not used in the patent. The patent does state that a portion of the land “is reserved” for canals and ditches by the federal government, however in another the paragraph most pertinent to the dispute the patent uses the different language that the land is “subject to” a right of way. Koenig maintains the term “subject to” is vague. Koenig also cited the case of Murphy vs Burch in asserting that a federal patent does not establish an implied easement. Cohn has yet to render a decision about Koenig’s motion but instead called all defendants to present their defense.
Nora Fraser took the stand and started with a quivering voice to detail her experience of the conflict and her dread and fear of a public easement across her property, saying she was “terrified” by the thought that she would be subjected to anyone and everyone coming onto her property and would not be able to control people from entering onto her boulder field.
Fraser, the producer of Richard Simmons television broadcasts, owns a parcel along Hoot Owl Trail upon which is located a pristine rock formation at the top of a ridge. “People think my property is a public park,” she said. She believed “my private property would be opened to the public” if Falossi were to successfully prosecute his lawsuit and that passers-by on the road would take the opportunity to stop and hike or climb into or onto the rock formations.
Fraser said she had done everything she could to “passively” deal with people in the neighborhood she considered to be “aggressors.” She said she considered Falossi to be an aggressor but did not want to upset him to the point that he would harm her any more.
Towards the end of the day, Fritz Koenig began to testify in his defense. The trial resumes August 3, 2015.
This and next week, the U.S. Army will be staging military training exercises out of the Barstow-Daggett Airport.
The exercises to be carried out will involve ground troops as well as members of the Army’s Air Cavalry. The Army has traditionally held such maneuvers in the Dog Days of summer, as the desert heat is a key condition to the exercises.
In a report to the board of supervisors dated July 21, James E. Jenkins, the director of the San Bernardino County Department of Airports wrote, “The Army has requested the use of an unoccupied portion of the Barstow-Daggett Airport to conduct military training exercises through the proposed license agreement. Authorizing this license agreement with the Army aligns with the county’s goal of working with other agencies and maintaining jobs in the county by facilitating the Army’s mission at Fort Irwin. The license agreement will authorize the Army to conduct military training on an unoccupied portion of the Barstow-Daggett Airport for a twenty-four hour period during the agreement term of July 22, 2015 through July 27, 2015, for no fee paid to the county. The specific exercise date will be mutually agreed by the parties with at least three business days advance notice.”
Jenkins told the Sentinel, “Typically the Army holds these exercises in July or August. This year there will be two separate and discrete events. One exercise is to involve an Army Air Fleet unit out of North Carolina entailing rapid refueling for helicopters. The unit will deploy a large fuel bladder. Upon being fueled, the helicopters will fly sorties, come down and then be rapidly refueled on the ground for another rapid take-off.
“The second event will involve troops from Fort Irwin engaging in ground exercises associated vacant housing we have at the airport,” Jenkins continued. “Those exercises will entail the breaching of the grounds’ facilities using coordinated close combat, in a situation and environment replicating an urban setting for the Army’s readiness training purposes.”
According to Jenkins’ report, the exercise was carried out on the county-owned property pursuant to a “license agreement with the U.S. Government that authorizes the U.S. Department of the Army to utilize an unoccupied portion of Barstow-Daggett Airport for military training, for no fee paid to the county, for a twenty-four hour period during the agreement term of July 22, 2015 through July 27, 2015 There is no fee paid to the county for the use of the Barstow-Daggett Airport for the stated purpose but the U.S. Department of the Army will perform clean-up and clearing of the site which is beneficial to the county.”
After 40 years of continuous service to the city of San Bernardino, community residents, job seekers and local businesses, the San Bernardino Employment and Training Agency (SBETA) is being forced to close its doors as of July 31, 2015.
Since the city of San Bernardino filed for bankruptcy, officials there have struggled to meet their financial reporting responsibilities. The city is delinquent on both the 2012-13 and 2013-14 single year audits. Due to the city’s failure to submit its annual audits on time, the Employment Development Department (EDD) has applied sanctions to the city’s local workforce agency. A “cash hold” was placed on SBETA, in October 2014, effectively suspending reimbursement for Workforce Investment Act (WIA) expenditures, pending the city’s completion of the delinquent 2012-13 audit.
As a result of the delayed single year audits, the California State Board and the governor denied SBETA’s application for re-designation as a local workforce investment area. The only chance SBETA has to continue to operate as San Bernardino’s job center is to appeal the decision. However, because of the cash hold, SBETA requires financial assistance from the city to carry it through the appeals process. Despite these actions, SBETA has continued to provide employment services to its customers, hosting job fairs and serving as a resource to job seekers.
At this point, SBETA is requesting all individuals who have benefited from the agency’s services to come tell their story at the city council meeting which begins at 5 p.m. on July 29 and encourage the council members to continue to fund SBETA for the duration of the appeals process. For an agency that has been a great asset to the City, it is imperative that the San Bernardino residents support them now.
“Please come support SBETA on July 29th at 5:00pm in the Council Chambers located at 300 N. “D” Street in San Bernardino,” said J’Quana Dowdy, the career manager with the San Bernardino Employment and Training Agency.
By Count Friedrich von Olsen
The matter of the People vs. Charles Merritt is back in the public consciousness with a vengeance once again, pointing up, as I have pointed out previously, a real problem with the secretiveness of the district attorney’s office. At issue is the incomplete information available to an alarmed and very curious public, information that cuts right to the heart of this case and will establish whether Mr. Merritt is the demon prosecutors allege him to be or whether an innocent man is being unfairly maligned. At stake is the credibility of the prosecutor’s office, whether its attorneys can be trusted. This carries over to cases beyond that one being prosecuted against Mr. Merritt. There are a frightful number of eggs in this basket. This is as high of a profile case as there is likely to be in San Bernardino County for some time to come. The reputation and careers of some very powerful people are staked on the outcome of this trial. Whether other prosecutors in the office like it or not or whether they consider it to be fair or not, they and the quality of their work, their truthfulness, their credibility is at issue here. If it turns out that those prosecuting Mr. Merritt have made misrepresentations or stretched the truth (which appears to be the case), it will come back to reflect on them. If these prosecutors are perceived as lying so they can mount Mr. Merritt’s head in their personal professional prosecutorial trophy case, the district attorney’s office may never recover from this…
At risk are other cases. If a juror who is asked to render a verdict in a case involving someone accused of, say, stealing hubcaps, will he be constantly reminded that the prosecution in the Merritt case loaded the dice to make Mr. Merrit look guilty when he was truly innocent? And will that juror extend the recognition that prosecutors try to shove round pegs into square holes to the case relating to the theft of hubcaps, concluding that reasonable doubt attends every utterance by prosecutors? In our system of justice, merely one juror needs to dissent from the finding of eleven others that there is guilt and the jury hangs and a mistrial is declared. A prosecutor hiding facts is a most serious sin, only slightly less egregious than outright falsification of evidence or outright lying…
Unfortunately in the Merritt case, prosecutors have indisputably hidden facts. It further appears that they have misrepresented facts, i.e., lied to the court and to the public. If in fact they have not lied or made misrepresentations, they have courted the perception of such through statements that are at the very least contradictory, vague and misleading. Is this the behavior of someone you want to lead jurors to a conclusion of moral certainty beyond a reasonable doubt?
The current issue is this: Where was the McStay family killed? In a motion for demurrer that I will here predict will be rejected by the magistrate hearing the case, Judge Michael Smith, Mr. Merritt’s legal team points out that the criminal complaint strongly implies the murders took place in San Bernardino County. Indeed, it is on that basis that the San Bernardino County District Attorney’s Office, as opposed to the San Diego District Attorney’s Office, is prosecuting Mr. Merritt. But at the preliminary hearing held in June, prosecutors presented a case suggesting Merritt murdered all four members of the McStay family at their home in Fallbrook in San Diego County.
According to the demurrer motion, these inconsistencies in the prosecution’s story are “glaring,” entailing “blatant contradictions that cannot be overlooked…”
I anticipate that what the district attorney’s office will say in its defense is that the crimes in San Bernardino County it referenced were not the murders themselves, but the disposal of the bodies. But that will only show that they were, once again misleading us, saying something that suggested one thing when what they were really saying was something else. There’s a word for that and you don’t need a juris doctor degree to know what it is. It’s called lying…
The district attorney’s office’s conduct throughout this ordeal has been enraging. I have no sympathy for lawbreakers. It is possible that Mr. Merritt is indeed the murderer of the entire McStay Family and that he is as coldblooded of a character as you would ever want to encounter, one who used a hammer to bludgeon a three year-old child and then used the money he had stolen from his father, whom he had also killed in addition to that child’s mother and brother, and then spent long days at the gaming tables wagering his ill-gotten lucre away. If, indeed that is the monster that Mr. Merritt is, then establish it for us to know, conclusively. Do not dangle a fact here and a fact there that seems to suggest he is guilty but upon closer examination when other information comes available has no probative value. Do not talk in mysterious tongues of circumstantially incriminating factoids, when a similarly selective showing of so-called “evidence” would implicate anyone, or just about anyone, you, me, the guy down the street, the garbage man, the local drug dealer or maybe even the prosecutor himself.
The district attorney’s office is hiding something. I don’t quite know what it is hiding, but it is hiding something or several somethings. What it is hiding just might be that the case against Mr. Merritt is nothing like what its prosecutors are suggesting. Maybe it is hiding the ball from the defense, which by the way, isn’t kosher. If that is the case, that could get Mr. Merritt sprung. And if he is guilty, that is unconscionable…
Call the district attorney’s office and tell whoever answers that prosecutors need to comport themselves professionally. Tell the person that members of the district attorney’s office should stop lying. Tell them to quit hiding their incompetence behind a facade of elliptical misrepresentation. Tell them to put on their case and their evidence and be done with it…
By Mark Gutglueck
M. Penn Phillips is considered by many to be the father of modern Hesperia, and is credited with transforming that community from a sprawling expanse of desert into what is today the second largest municipal entity geographically in San Bernardino County, There were, nonetheless, elements in the way Penn conducted business that have left a less-than-sterling legacy for the City of Progress, ones the community has struggled for years, and continues to struggle, to overcome.
Born Marion Penn Phillips on June 13, 1887 in Parsons, Kansas, he was the founder of the M. Penn Phillips Company, which was later a subsidiary of Holly Development Corporation. He operated in the Western states from the 1920s through the 1970s. Starting in the 1920s, he undertook the development of Clear Lake Highland, and completed Frazier Mountain Park near Bakersfield in 1924, and a development known as the Avocado Farms near Vista in 1926. He developed large tracts in the Las Vegas basin in 1927, the development of 5,800 lots and 18,000 acres of land in the area around Coos Bay, Oregon between 1929 and 1933, and had built, in association with former World Heavyweight Champion Jack Dempsey the famed Hotel Del Pacifico in Ensenada Mexico in 1931. From 1929 to 1932 he bought and sold more than 60,000 acres of undeveloped land in the Colorado River basin.
During the Second World War, Phillips was executive vice-chairman of the U.S. Treasury Department War Finance Committee for Southern California and following the war he developed and sold thousands of acres in Palmdale, Lancaster, Victorville, Apple Valley, Barstow and Newberry Valley.
He was serving as the vice-president and director of Standard Federal Savings and Loan Association of Los Angeles when on April 22, 1954, what was billed as the largest private land sale in Southern California in 35 years was consummated with the Omart Investment Company’s purchase of a 36-square mile tract seven miles south of Victorville, representing roughly 90 percent of the entire township of Hesperia, for $1.25 million from the Appleton Land and Water Company and the Lacey Estate, which had owned the land jointly since 1888. Phillips, as the president of Omart, signed the land transfer documents at Pioneer Title and Insurance Company in San Bernardino.
Phillips simultaneously announced his intention to spend $8.25 million through the Hesperia Land Company, a subsidiary of Omart Investment Company, to prepare the property for development, indicating 1,000 acres of the property was to be allocated to industrial development, 8,000 acres for agriculture and that 5,000 homes would be built along with a two-and-one-half mile-long-and-one-quarter-mile-wide artificial lake, and a resort section.
Involved with Phillips in the Hesperia venture were Jack Dempsey as well as Charles Allen, vice-president of E.F. Hutton and Company of New York City; Fresno-based attorney Milo E. Rowell, Nat Mendelsohn of Riverside; Philip J. Farrar of Fresno; along with Los Angeles investment brokers, Dan Christy and Henry Paul Willis.
Within a week Phillips and Dempsey announce plans to renovate the Hesperia Hotel, which had been dormant since 1926.
He created the Hesperia Land Development and Hesperia Sales Corporation, which worked to promote his concept of the U-Finish Home, mass-produced housing units that were completely finished on the outside, leaving the buyer to complete the interior. He secured water rights to support this community through the newly created Mojave Water Agency, of which he was a founding member.
The formula Phillips applied in Hesperia was much like the one he used with his developments elsewhere: secure land, build homes on it, put in the minimal amount of infrastructure to make the homes habitable, bring in a population that creates the basis for a community that includes momentum for establishing some form of a jurisdictional governmental agency, sell all of the parcels acquired, take a profit and move on to the next development elsewhere.
Phillips built roads for Hesperia that were of a decidedly low standard, consisting of a mixture of desert sand used as aggregate and bitumen to create a road that was no more than one-and-a-half inches thick. The roads, when new, looked good, but under the withering sun and use, began to deteriorate within three to four years. The flash floods the desert is prone to further washed out these roads over the following decades, leaving many of Hesperia’s streets in poor condition, including some that eventually returned to being nothing more than dirt roads.
Phillips was equally irresponsible in the creation of the town’s water system. Though he started with the tremendous advantage of Hesperia being blessed with a world-class water supply, he squandered that asset in his head-long pursuit of a profit. Hesperia lies near the headwaters of the Mojave River, the watershed area north of the San Bernardino Mountains, a pristine and perpetually recharged water supply created by melting snow and overflowing rainwater from the heights southeast of Hesperia. The water system Phillips created for Hesperia consisted in large part of pipes cannibalized from a petroleum conveyance operation from depleted oil fields. Thus, the Hesperia Water Company, capturing water at the foot of the mountain before it rushed forward to become the Mojave River and wend out into the desert, used substandard pipes, which compromised the quality of the product provided to Hesperia for domestic use.
Raymond Pryke, who was later a major land owner in Hesperia and elsewhere in the High Desert, originally came to Hesperia as a salesman working for the Hesperia Sales Corporation. Pryke used some of the proceeds from the commissions he earned to invest in undeveloped Hesperia property, which he intended to, and actually later did, develop or sell. At one point, Pryke recalled in 2005, Phillips chided him, telling him “Your problem, Ray, is that you fall in love with the property. You need to learn that what you do is buy the land, build on it, sell it and get out.” Pryke said he responded by telling Phillips, “I think the Victor Valley has great potential, Mr. Phillips.”
True to form, within three years of his purchase of the Hesperia Township, Phillips was turning his attention elsewhere, in this case to the “Salton Riviera” resort on the west shore of the Salton Sea. For that ambitious undertaking, he hired urban planner Albert Frey, who drew up designs for a business district, schools, churches, parks and civic buildings, an 18-hole golf course, a half million dollar luxury hotel, a marina and a yacht club. He laid out 25,000 residential lots and got builders working with him to pave more than 250 miles of roads, and installed supporting electrical power, water, and sewage infrastructure.
The sheer size of his project in Hesperia, however, meant that it would be years before all of the property he had there would be sold, and he and his companies remained involved there despite the distraction of the Salton Sea.
In May 1960, 71-year old Penn Phillips’ world, and that of those around him, was rocked when Henry Block, a deputy real estate commissioner with the state of California, charged Phillips with fraud and suspended his real estate license while declaring the intention of having it permanently revoked.
The charges against the M. Penn Phillips Company by the state division of real estate covered two broad areas of allegations.
The first was that in 18 specified instances starting around May, 1958, land in Hesperia was sold by fraudulent misrepresentations, deception and dishonest practices. It was further alleged that the sales were part of a scheme and plan fully known to Penn Phillips, the company president, as well as Faraon Jay Moss, second vice president, and Arthur A. Miller, secretary. Block asserted that Phillips, Moss and Miller “had full knowledge of allegedly false promises of certain salesmen and condoned… assisted, aided and abetted them in carrying on said common plan of fraudulent misrepresentation, deceit and dishonest practices.” Among the specific allegations was a charge that salesmen had sold land on the promise that the Phillips organization would build income-producing units on them when, in fact, a restricted covenant prohibited rezoning the land for business use until 1985.
The second charge was that the company had not properly notified the state real estate division that the public utilities commission had claimed that the water system supplying 66 tracts in Hesperia was inadequate and a possible health hazard.
The state issued a cease and desist order forbidding the company to sell or transfer any of its Hesperia holdings until it was demonstrated that an adequate supply of potable water and an adequate distribution system was available.
Others named with Phillips in the suit were the M. Penn Phillips Co., formerly known as Omart Investment Co. Ltd.; Carlo Peter Giuntini, Phillips son-in-law; Moss; Miller; Katherine Agnes Kelly, Richard Kimball Thayer, Phillip Oliver Washington, Milton Samuel Frankfort, Daniel Keiserman, Edward Eli Singer, David Rudin, Leon Schwartz and Lester Alden McGuire.
Block accused the company of “pretending” to have discontinued the formal employment of one salesman, Milton Frankfort. Frankfort held only a restricted broker’s license, having been convicted in 1951 of criminal conspiracy to cheat and defraud by criminal means and to obtain money by false pretenses and by false promises and to commit grand theft, a felony.
The state’s case against the M. Penn Phillips Company consisted of evidence of misrepresentations by its salespeople, most notably Frankfort. Cited in some detail by Block and real estate commissioner W.A. Savage was the experience of a Hesperia couple who already owned two lots and agreed in June 1958 to contract to purchase another lot for $4,990, putting $490 down and making monthly payments of $55 thereafter, based on promises Frankfort made. Those promises included that the company was going to, according to Savage and Block, “build a series of income units along the airstrip in that tract; that there would be a lot of air traffic and a great demand for rentals; that a recreation area would be developed near the airport; that there would be a club known as the ‘Holiday Club’ and that said purchasers would be given a free membership in said club; that said purchasers would receive 20 percent discount on all activities thereof; that no member of the Phillips companies would develop any of the property in that vicinity in competition thereto; and that the company would construct income rental units on each of the said lots for the purchasers; would finance them; would manage them for a charge of 15 percent of the rentals; and that said purchasers would make between $7,000 and $9,000 per year as a result of income derived from said rental units.”
Savage charged these representations were false “because in truth and in fact the company had not planned to build units for lot purchasers along said airstrip; that respondent Frankfort had no reasonable ground for stating that there would be a lot of air traffic and a great demand for rentals; that no recreation area was planned or was ever thereafter developed near said lot…; that it was never intended that purchasers… be given a free membership in a club known as the Holiday Club or a free membership to any other club or that said purchasers… would receive a 20 percent discount on all activities thereof; that in truth and in fact several months thereafter one Harry Stanford of Phillips Company constructed a 16-unit motel on said airstrip…; that it was then untrue that said Phillips Company or any other affiliated company would build and finance and service rental units on said lot and that said purchasers would make between $7,000 and $9,0000 per year therefrom; that in truth and in fact no multiple income rental units could be built on said lot as the same was zoned for single residences only and that it was subject to a recorded restricted covenant until 1985 to that effect.”
Block further charged that some time before July 1, 1958, the Phillips Company “modified and changed said plan and scheme and sales program by pretending to discontinue the formal employment of respondent Frankfort and to pretend to sell lots to Capital Controls Corporation,” which Block described as Frankfort’s alter ego.
Setting up this purported corporation which, Block claims, was owned, controlled and operated by Frankfort, was done to insulate Phillips and other company executives from responsibility for any further or future fraudulent misrepresentations and false promises to be thereafter made by Frankfort, the state alleged.
In late May 1960, Lorne Pratt, a vice president of M. Penn Phillips Co. and Penn Phillips’ chief spokesman, working with a legal team, convinced a court to lift the sales ban on the Phillips firm. But in June 1960, Deputy California Attorney General Lee Stanton persuaded Superior Court Judge Joseph W. Vickers to reinstate the order as issued by Savage.
Ultimately, Frankfort was banned from the real estate profession altogether and Phillips was hit with a 160-day license suspension that was lifted in 1961. At that point, Phillips ceased being a player in Hesperia and San Bernardino County.
Phillip’s exodus from San Bernardino County corresponded with his departure from the Salton Sea real estate venture, one which sullied his reputation as much or more than the go-round in Hesperia.
After purchasing 19,600 acres on the periphery of the Salton Sea for under $2 per acre, Phillips promoted the community he said he was going to establish there as a “Riviera.” He invited the likes of Guy Lombardo, Jack Dempsey, Graucho Marx, Jerry Lewis and Frank Sinatra to boat races on the sea that were billed as the on-water equivalent to the Indianapolis 500 that attracted a seemingly large crowd. Nearly half those in attendance were real estate salesmen.
On the opening day for sales, May 21, 1958, Phillips, selling the same acre lots he had purchased for under $2 for $3,000 each, made $4.25 million in less than 24 hours. Within three years, Phillips sold all of his remaining interest in the Riviera to another development company. The grand shoreline community with the marina, yacht club, luxury hotel and golf course never materialized. By 1966, some 200 modest residential units would be built. Within another 20 years, all of those but a handful would be abandoned.
Just as he had sold his interest in the Salton Sea and the suspension of his California real estate license ended, Phillips departed California for another venture in Oregon, this one in that state’s Lake County. The Penn Phillips Company purchased over 72,000 acres around the desert area known as Fort Rock/Christmas Lake. Penn constructed a $100,000 A-framed lodge as well as a nine-hole golf course, an airstrip, and a small artificial lake on the land and initiated an aggressive sales campaign, targeting the sale of parcels and lots to retirees in the Los Angeles area, advertising the land as perfect for small farms. Phillips’ salespeople confidently predicted the population of Christmas Lake would zoom to 5,000. That never materialized and by 1966 he was embroiled in a dispute with the state of Oregon over property tax valuations. Christmas Lake’s population topped out at 150 by the time construction there ended.
As in California, Phillips would eventually be charged with misrepresentation by the state of Oregon. He was sued by discontented purchasers, The M. Penn Phillips Co. ended corporate operations in 1970. On May 24, 1979, Penn Phillips died at the age of 91, in great wealth and comfort, in Sierra Madre, California.
Langloisia setosissima is a flowering plant, the sole species in the genus Langloisia in the family Polemoniaceae.
Known as bristly langloisia, bristly-calico, Great Basin langloisia or the lilac sunbonnet, it is native to the western United States, where it is found in desert washes and on rocky slopes and plains from eastern Oregon and Idaho south to eastern California and Arizona. It is common in the Mojave Desert.
An annual plant, it grows one and a half inches to eight inches tall. The leaves are alternate, spirally arranged, simple linear or oblanceolate, 2-3 cm long, densely bristly with a toothed margin, each tooth having one bristle. The basal teeth of upper leaves reduce to a cluster of two to three bristles.
The flowers are white to light blue or pale purple in color, 1.5-2 cm diameter, with a deeply five-lobed corolla. The inflorescence is clustered, terminal and head-like, with leaf-like bracts and pedicel that are nonexistent or short. The flowers are equally sized calyx lobes that are bristle-tipped. The corolla is funnel-shaped and stamens are attached at or below sinuses, and are uniform in length, exserted and produce pollen that is white to blue. The petals are usually a solid color but can have purple marks.
The stem is erect and generally naked below but leafy above.
The lilac sunbonnet flowers from February to June.
The fruit is oblong-lanceolate, triangular in X –section with the outer wall of the valve flat.
The Langloisia’s seeds are gelatinous when wet.
Its most common habitat is in desert washes, flats, and slopes, in gravelly to sandy soils generally below 5,600 feet in elevation.
There are two subspecies. Langloisia setosissima subsp. setosissima have flowers with a uniformly colored corolla, possibly showing faint patterns of dots and stripes. The Langloisia setosissima subsp. punctata (syn. Langloisia lanata, Langloisia punctata) sports flowers with a corolla spotted with darker purple and yellow.