The repeated refusal of multiple employees within the City of Upland’s planning division to allow one of the city’s residents to file an appeal of the planning commission’s approval of the Amazon Distribution Center project has intensified the distrust with which a contingent of city residents have come to regard City Hall.
Despite the refusal of the top echelon of the city’s administrators and community development staff to allow Steve Bierbaum to make a formal presentation of the grounds for his protest of the planning commission’s action to persuade the city council to rescind or otherwise deny the project approval, after he approached those ranked a bit lower within the city’s executive suite, personnel there consented to accept and file the document.
Though Bierbaum through persistence and by deviating from the protocol dictated by the city as to the proper channel through which to make a request for a rehearing succeeded in slipping his objections to the project into the record, the manner by which city officials initially blocked the filing has served to convince many that the city is engaged in an effort to game its own system.
On February 12, the Upland Planning Commission, with Commissioner Alexander Novikov absent, considered Amazon’s proposed 201,096-square-foot distribution center to be located north of Foothill and south of Cable Airport. In the course of the hearing, the commission, joined by Airport Land Use Committee members Ronald Campbell and Howard Bunte, voted unanimously to enter a finding that the project as proposed constitutes a use compatible with the city’s zoning codes and general plan. The commission voted 4-to-1, with Commissioner Yvette Walker dissenting, to accept the project’s environmental certification, which included the designation of a mitigated negative declaration, essentially a finding that any untoward environmental impacts would be offset by the conditions of approval imposed on the project. The panel voted 3-to-2, with Gary Schwary and Walker in opposition, to recommend approval of the development agreement. It voted 4-to-1 to approve a lot line adjustment for the project, with Walker dissenting. With regard to the project’s site plan, the commission voted 3-to-2, to approve a tortuously worded motion, one which called not for the acceptance of the site plan but rather the rejection of it. Commissioner Schwary, who for a decade previously was the commission’s chairman, endeavored to make clear before the vote that a “yes” vote meant voting down the site plan and that a “no” vote was one cast to approve the site plan. When the votes were registered, the tally was 3-to-2 in favor of the motion, with Walker, Schwary and Linden Brouse prevailing and Chairwoman Robin Aspinall and Carolyn Anderson dissenting. In this way, the commission’s proceedings were recorded as having denied the site plan. Subsequent to the meeting, however, Brouse claimed he had misunderstood the motion, believing that by voting “yes” he was voting to approve the site plan, and he is now seeking to rescind his vote.
The project proponent is not Amazon but rather a company, El Segundo-based Bridge Development Partners, which is seeking entitlement to proceed with the project on the 50-acre site owned by the Bongiovanni Family Trust.
A considerable number of Upland residents are opposed to the project on the grounds that it will generate a significant degree of traffic, negatively impact the city’s roads and other infrastructure, involves diesel trucks and vans of multiple sorts that will generate a significant degree of air pollution, entails internet-based sales which will generate for the city no sales tax revenue, and will monopolize as a logistics-based operation property along the Foothill Corridor better utilized for commercial and service-provision businesses.
As a so-called deal sweetener, Bridge Development had originally offered the city $10 million in one-time payments or other fees which were to include $5.7 million dedicated to road maintenance needs throughout the city at a rate of $370,000 annually; $400,000 to beautify, maintain and enhance four nearby parks, with $100,000 going to Cabrillo Park, $100,000 going to Citrus Park, $100,00 going to Baldy View Park and $100,000 going to Greenbelt Park; $100,000 to each of Upland’s 14 public schools, for a total of $1.4 million; $400,000 to the Upland Police Department to address homelessness; and $50,000 to support local businesses through the Upland Chamber of Commerce’s Shop Upland initiative. That money was to be paid in addition to the $2.25 million Bridge Development is shelling out in development fees.
When opponents of the project pointed out that the money Bridge Development was offering was tantamount to bribes to the city and the city’s institutions, and that over the 50-year life of the lease on the property upon which the project is to be built and the possible 50-year lease extension thereafter that the damage to the city’s streets and infrastructure would exceed a cost of $500 million, Bridge Development increased the $10 million offer to $16 million.
Project opponents noted that the monetary inducements had seemingly compromised the judgment of city officials, including City Manager Rosemary Hoerning, Community Development Director Robert Dalquest and the city’s contract planner, Mike Poland, who were unwilling to look the $16 million gift horse in the mouth. Opponents say city officials have allowed Upland’s municipal regulatory function and land use authority to be compromised, which they say includes the consideration that the city allowed Bridge Development Partners to undertake a much less rigorous negative mitigated declaration on the project rather than doing a full-blown environmental impact report for the project to obtain environmental certification.
Among the project opposition is Steve Bierbaum. On Thursday, he gave the Sentinel  a rundown of what he experienced this week when he sought to ensure that a protest of the planning commission’s endorsement of the project, as far as it goes, was officially registered to make sure the city council considers all of the issues of concern with regard to the project, and to preserve the rights of the city’s residents to challenge the project in the courts if it is given ultimate go-ahead.
“According to the planning commission appeal process on the agenda you need to file an appeal of any planning commission action within ten days,” Bierbaum said. “An appeal is the major remedy. The only other way you can document an objection to what occurred is basically an objection or challenge. After last week’s public hearing on the environmental determination for the Amazon project, I wanted to make an objection and the only way I could do that was to file paperwork with the city. My purpose was to get something on the record should this go to litigation subsequent to the council meeting where this item will be taken up by the city council on the hypothetical chance the city votes yes to approve the project.”
Bierbaum pointed out that the ability to challenge the council’s decision once it has entered its findings and determination is limited, and must take up what was submitted to the council and considered prior to the decision being rendered, such that raising an issue in a legal action after such an approval that is not based on issues considered by the decision-making body’s deliberations would be dismissed on technical legal grounds. “Once the council has reached its decision, any challenge of that action based on something that has not been considered by the council beforehand will be considered null and void and cannot be placed into the court documentation,” Bierbaum said. “By submitting the documents I did today [Thursday, February 20], those issues have to be addressed. I took up certain issues that were sidestepped during the course of the planning commission meeting and in the city’s acceptance of the mitigated negative declaration for the project. Now, what the city can do is just put what I gave them into the round file [trash can], but for the purposes of any litigation that may ensue, toward that end we will be able to bring into our briefs all of those issues, and there will be no way for the city to get around that because we have now put the issues on the books.”
Bierbaum explained what had occurred at City Hall before he was able to get the document filed. “I understood that based upon what it says in the agenda under the public noticing section, if you want to apply for an appeal to the planning commission’s decision you have to contact the planning department, so I showed up for that procedure yesterday [Wednesday, February 19] morning. I attempted to reach out to [Upland Contract Planner] Mike Poland and [Upland City Manager] Rosemary Hoerning to determine what I needed to do specifically to file an appeal. I did not hear back, and based on what I knew, you have ten calendar days to make an appeal. Today [Thursday, February 20] would have been the last day [since the tenth day following the February 12 meeting falls on Sunday, February 22, at which point City Hall is closed]. So, I went to City Hall yesterday [February 19] and after a half hour of hemming and hawing around at the planning counter, [Assistant City Planner] Joshua [Winter] came to the front desk and he said he would not allow me to file what I had. I asked him why, and he said, ‘Here is a document,’ which was highlighted, and if you can visualize this, it was something from an email why this [the planning commission’s February 12 vote] was not a category where it would be appropriate to have an appeal process because the planning commission was not making a decision but was rather making a recommendation, and that the city was therefore not accepting any appeals on the subject despite what it says on the agenda.”
Bierbaum continued. “With Joshua was a young woman from the department,” he said. “So, I asked, ‘I want to know if I show up with an appeal whether that appeal will be filed. It sounds like you are telling me that you won’t accept my appeal. Is that correct?’ He told me, ‘That is correct.’”
That option foreclosed, Bierbaum recognized he would need to maneuver around the city’s planning division.
“I went to the city clerk’s office and spoke with the executive assistant,” Bierbaum said. “I told her that in the planning department they would not accept the appeal I was trying to submit, despite what it said on the planning commission agenda about the ten day deadline. l asked her if I submitted the objection relating to the planning commission’s decision would she accept that document She said they would accept it in the city clerk’s office.”
Bierbaum said that what went to the city clerk’s office thus was “not an appeal in the sense of using the process to overturn the decision. The only thing I was attempting to do was to get information in place that had not previously been provided as part of the record before the city council meets, to make sure they will have that as part of what should be part of the deliberative process.”
Bierbaum said that he did not perceive anything hostile in Winter’s demeanor, but that “When he first came to the counter he let me know ‘This is the position of the planning department. We are not going to take it [the appeal application] from you because this is the position of the city manager.’ But then he said, ‘Let me check to make sure I understand correctly.’ When he came back I asked if I showed up the next day [Thursday], that he was telling me the planning division would not accept what I wanted to file. He told me that was correct.”
Bierbaum said there was some indication that it was “going to cost thousands of dollars to go through the appeals process,” and that Winter and other staff were, perhaps, in some benevolent fashion warding him off as some form of warning that he would be expending his money in vain, as the planning commission’s findings and votes were not binding and only advisory to the city council, and that the council ultimately would take up the issue, anyway. While Bierbaum said the warning was well taken – “I haven’t had very good luck at the planning department because I don’t necessarily see eye to eye with its members,” he said – that missed the point, Bierbaum pointed out, since “It is my understanding that it would be imperative that all items or arguments or response for the case against the passage of the negative mitigated declaration needed to be made. I still believe there is a viable reason in my articulation of why the environmental impact report should be done. The traffic studies, the air impact studies are absolutely ridiculous and inadequate. More than that, the City of Upland purposefully neglected to include significant resident input within the comments on the mitigated negative declaration posted on the city’s website. There were 138 signatures gathered from residents taking issue with the mitigated negative declaration they left out of the packet. When that was brought to the city’s attention, they asked that we give them a couple of days to add it and they didn’t do that. There were engineering professionals who laid out critical numbers that relate to the air quality and health risk issues. Well, guess what? They left that out of the packet, too. The city substituted in its own numbers on the health risk assessment. We wanted that information in there so it will be brought up at the city council meeting. We want all of that included to make sure the city had those documents so they would be eligible for inclusion in civil litigation when the time comes.”
Bierbaum said, “It is my personal observation that this project has been in progress toward being implemented for a minimum of the last two years. This can be shown when you consider that the Bongiovani property has been receiving administrative citations for the clean up of that property. This started occurring during the Marty Thovenell administration.”
Thovenell served as the city’s acting/interim city manager from July 2016 until January 1, 2018.
“Mr. Thouvenell dictated, or reached, a settlement agreement in which he said to the Bongiovanni Family Trust and Dineen Trucking [which operated a building materials storage and transport as well as a rock crushing facility on the site], ‘We will dismiss the citations and the fines if you clean up the property, and we are going to provide you with an additional year from July 2019 until July 2020 if a large development comes in.’ Shortly after that the West End Water Company quitclaimed at no consideration four easements it had on the Bongiovanni parcel to Bridge Development. There was no money involved in that transaction with the exception of $1,000 for attorney fees. This is at least two years before there is any public mention of the Bridge project. In short, Development Services Director Dahlquist has not been straightforward. He and the planning division have gone out of their way to ensure that the property is properly set up for making this project go through. I submitted a complaint to the Environmental Protection Agency with regard to the property, that they were importing new materials onto the property without monitoring it properly and they were functioning without a business license. It was absolutely clear the city was going out of its way in allowing them to function without the proper licensing. The license they had at the time was for a business office in Upland that had nothing to do with a rock crushing operation. The city was aware of that and then lied outright about it. Mr. Dalquest said they were properly licensed. They were not. The development services director has discouraged everyone from looking behind this because those problems would interfere with the project proposal and [the city’s] development service [division] is 100 percent in favor of this project.”
With regard to laying out the data related to the project, the city was not acting as an honest broker of information, Bierbaum said. In the preparation of the mitigated negative declaration, Bierbaum said of the city, “They aren’t the ones doing the work. In reviewing the mitigated negative declaration, [the firm of] Kimley-Horn was the one receiving the comments. The city was supposed to receive them. [Contract City Planner] Mike Poland then sent them to Kimley-Horn to respond to the input. Upland Rock at the site was crushing rock all that time. The city did not receive one dollar in fees from that operation. They were unlicensed. During the mitigated negative declaration process Kimley-Horn was putting together for Bridge Development, they relied upon Upland Rock’s data. They were pointing to that to establish a baseline for doing the air quality assessment in the negative mitigated declaration process. You can’t rely on that data. It didn’t exist! It was made up! They lied! The county has no record of equipment being moved on that property over the years. This is Upland at its finest. This is the good ol’ boys’ way of doing things. They have an attitude of ‘By God, we can make this happen, no matter what.’ And this is going through because Bridge is throwing money around to buy its way into a project approval.”
Bierbaum said, “My fear is the city council will in fact cave on this. It is all about getting a 3-to-2 vote. The mayor [Debbie Stone] will support this, and [Councilman Ricky] Felix will go right along with her. Bridge already has two votes there. The question is who is their third vote. I think [Councilwoman] Janice [Elliott] will say no, unless she goes soft and starts to wobble. So then it comes down between [Councilman] Bill [Velto] and [Councilman] Rudy [Zuniga]. My guess is as soon as they start talking about the $16 million in revenue, Velto will vote yes. Who knows? They all might vote yes. My personal opinion is they will in the end say that the planning commission fronted for them on this and they will take the commission’s vote as a recommendation. Then we will have to try to fight Bridge, which is really Amazon, in court. That is a multi-billion dollar company. They will spend millions of dollars to just outlast us in court.”
The Sentinel sought an explanation from Winter as to his rationale for preventing Bierbaum from filing his appeal. That prompted a response that came directly from Hoerning. She wrote in an email, “The short answer is the planning commission’s determinations on this project are only recommendations to the city council. The city council will be reviewing material, conducting a public hearing where public testimony is heard, and undertaking deliberations concerning the project before taking their final action on the project elements.”
At this point, Hoerning acknowledged, “The city manager’s office has received Mr. Bierbaum’s public comment package, which is available in the city clerk’s office and will be made available for the city council. It would be inappropriate of city staff to collect an appeal fee from Mr. Bierbaum for this item, because this item has to be presented to city council and a city council public hearing is to be conducted before a final determination and action is taken by the city council.”
-Mark Gutglueck