Click on the blue portal below to download a PDF of the February 27 edition of the San Bernardino County Sentinel.
By Mark Gutglueck
Long ongoing attempts by San Bernardino Mayor John Valdivia and a more recent effort by San Bernardino Deputy City Attorney Sonia Carvalho to muzzle City Councilwoman Sandra Ibarra fell short this week, with Ibarra descending from the council dais during this week’s city council meeting to utilize the public microphone to engage in open statements Valdivia has consistently endeavored to curtail.
This week was the second time Ibarra took recourse in utilizing the pulpit normally reserved for members of the public addressing the council during city council meetings. On a relatively consistent basis, Valdivia has slighted Ibarra in the past, refusing to recognize her to allow her to speak during council proceedings, and on two occasions adjourning the meetings and himself walking away from dais as she attempted to summon the council’s attention to an issue. This week, Ibarra’s move carried with it a certain poignancy and gravitas, as Valdivia is under heavy scrutiny and attack based upon legal claims lodged against him and the city by two of his former staff members who resigned last month. Those claims accuse Valdivia of subjecting the two women to sexual harassment and engaging in a wide manner of improprieties, and further allege that the city’s senior management and the city attorney’s office failed to act to curtail his behavior after the women made internal complaints while they were yet employed. Moreover, the claims his two former staffers, Mirna Cisneros and Karen Cervantes, filed on February 13 state that Valdivia sought to involve them in or otherwise disclosed to them that he has misused public funds or received donations of money or gifts he has not disclosed.
Ibarra was elected to represent the city’s Second Ward in 2018, the same year that Valdivia, who at that time was serving as Third Ward Councilman, was elected mayor. After then-incumbent Second Ward councilman and one-time Valdivia ally, Benito Barrios, had finished third in the June 2018 primary to set up a November runoff between Ibarra and Cecilia Miranda-Dolan, Valdivia and Ibarra supported each other once that year’s election season was on in earnest. Upon taking office, Ibarra settled in as a key member of Valdivia’s ruling coalition on the council, joining initially with her colleagues Henry Nickel, Bessine Richard and Ted Sanchez to provide the mayor with sway over the city. Two factors, however, matured over time to manifest in Ibarra’s eventual break with Valdivia.
The first of these was the roiling controversy that had developed over the city’s animal control division, housed in and functioning out of an aging and dilapidating animal shelter building under the management of the police department, which was chaffing at being saddled with that thankless and frustrating assignment. Valdivia’s strategy for dealing with the issue consisted of a plan, which had some degree of city council support, of outsourcing the animal control division to the County of Riverside. A sizable contingent of the city’s residents, however, were opposed to the city offloading the care of the city’s stray, unlicensed and lost domestic animals to a facility in the City of Riverside a good ways distant across the county line. When Ibarra took on the active role of advocating for those resisting Riverside’s takeover, this threatened to untrack what Valdivia considered to be a relatively easy solution to a problem he had hoped to sidestep while he dealt with other pressing challenges facing the city. The second element that fully sundered the Valdvia/Ibarra alliance came in May 2019, when the vacant Third Ward council position that Valdivia had resigned from to become mayor was filled with another Valdivia ally, Juan Figueroa, whom Valdivia had heavily backed and whose campaign was fueled in large measure by funds Valdivia had transferred to Figueroa out of his own political war chest. When Figueroa took his place on the council dais, Ibarra’s support, which was once needed to hold Valdivia’s coalition together, was no longer indispensable.
In a relatively short span, it was clear that Ibarra was migrating away from the Valdivia fold as her votes diverged from those of Richard, Sanchez, Nickel and Figueroa supporting Valdivia’s strategy of governance in the county seat. In time the rift intensified, and Valdivia, confident in his preeminence at City Hall, on occasion rubbed salt into Ibarra’s wounds, using his possession of the mayor’s gavel and his control over the ebb and flow of council discussion to ignore the councilwoman’s efforts to weigh in on numerous items and topics that the council was considering as action items, resolutions, ordinances, ordinance adjustments or during hearings, by failing to recognize her when she would attempt to speak. In a particularly pointed way, Valdivia on occasion would simply bypass her during that portion of the meeting devoted to council members asking their colleagues to consent to the discussion of or action on items or issues at future meetings. On those occasions when issues Ibarra championed made their way into the council’s deliberations, Valdivia often worked to give those matters short shrift.
By the end of Summer 2019, Valdivia was angling with some purpose to render Ibarra into a political irrelevancy and in no small measure succeeding. Casting about for some means of asserting herself, Ibarra at last hit upon going beyond her capacity as a council member, which Valdivia was managing to thwart, by exercising her First Amendment rights as a citizen by filling out a speaker card and then making a statement during that portion of the council meeting reserved for public comment.
Unbeknownst to the public, during most of last year, a scandal was brewing at City Hall relating to the mayor’s comportment. Relatively early in Valdivia’s tenure as mayor, Mirna Cisneros, then 29, had been transferred from her at large position as a resident service representative to the mayor’s staff. Perhaps feeling his political oats, Valdivia was forward with her, engaging in a sexually-tinged innuendo, as when he offered her his credit card and kept telling her to buy whatever she wanted, specifically requesting that she add more high heels to her wardrobe, while telling her that his wife did not need to know about the purchases. He continuously commented on Cisneros’s appearance, made lewd comments about other women, and hinted that he would promote Cisneros to the position of his chief of staff so they could replicate a sexual relationship like that between a member of the California legislature and his chief of staff. Valdivia further insisted that Cisneros accompany him on junkets that were not a part of her job duties, on one occasion telling her as they were boarding a plane that nothing was off limits. In September, Valdivia hired onto his staff 24-year-old Karen Cervantes as constituent representative. Valdivia, as he had done with Cisneros, inveigled Cervantes into accompanying him to after-hours events that were not a required element of her work assignment. At one of these, Valdivia attempted to ply her with gin and tonics, at one point whispering in her ear that “This is not like at work and we can have fun,” that at such events he is “not so strict,” and that he is “cool.” Valdivia further pressured Cervantes to carpool with him, and at one point told Cervantes it was her fault that “we don’t have a friendship.” Valdivia told her she should ‘‘try to have a relationship” with him and that Cervantes “should stay in the office after hours to have friendly conversations” with him, so that they could get to know one another better. Valdivia delved into her personal finances and asked about Cervantes’ mortgage and bills, implying that keeping her job was important, which she took as his effort to get her to “consent to his degrading and unwelcome sexual advances and harassment.”
Cisneros and Cervantes reported Valdivia’s behavior to the city administration but, according to their attorney, Tristan Pelayes, this had no salutary effect. Neither the city manager, the city attorney’s office, nor the city’s personnel department were willing to clash with Valdivia over the issue Cisneros and Cervantes were raising, and the city was not amenable to transferring either of the women to other assignments where they would not need to interact with Valdivia. On January 29, both resigned from the city. Thereafter, with Pelayes representing them, they went public with their stories and on February 13 filed claims with the city, considered to be precursors to lawsuits, in which they laid out a multitude of the lurid details in their experiences with Valdivia.
In Cisneros’s claim, she said, “Each time claimant refused Valdivia’s advances or rejected his behavior, he would put her on the ‘misery program,’ which involved, among other things, humiliating her, forcing her to engage in activities outside of her job description and requirements, and threatening her job.” According to Cervantes, “Because claimant refused Valdivia’s advances and despicable behavior, Valdivia began to belittle, bully, degrade, and embarrass claimant in front of her coworkers during staff meetings and other gatherings. This retaliatory behavior continued and escalated throughout the next few months.”
In the aftermath of the claims being filed, more than a dozen news and media outlets throughout Southern California picked up on the scandal, including the San Bernardino Sun, CBS, NBC, ABC, the Inland Valley Daily Bulletin, and the Press-Enterprise, as well as elements of the national media.
Cisneros and Cervantes along with Ibarra were forced to endure not only Valdivia’s genderist behavior but dismissive treatment by top city officials and the city’s contract city attorney firm, Best Best & Krieger.
Before and even after Cisneros and Cervantes reached out to Pelayes, they had been told by senior city officials that nothing could be done about Valdivia because he was an elected official. When Valdivia had used his authority as mayor to preempt Ibarra’s participation in the governance of the city, no one was willing to intervene, as Valdivia’s status as mayor and political power exceeded that of Ibarra, whose authority as Second Ward councilman made her the direct representative of a constituency one-seventh the size of Valdivia’s. In the case of City Manager Teri Ledoux, Valdivia’s position as mayor put her at the mercy of his decision to sway the four votes he was presumed to control on the council that could fire her. Ledoux had never spoken up to assist Ibarra in gaining her footing in the face of Valdivia cutting her off. Best Best & Krieger is an establishment law firm, one that militates on behalf of city officials who have, by virtue of their elected status, become part of the establishment Best Best & Krieger has for generations successfully aspired to represent. Whenever rivalries among those elected officials break out, Best Best & Krieger hews to the side which the firm and its attorney’s calculate holds the political upper hand. Until quite recently in San Bernardino that was the side of the political divide John Valdvia was on. Though Deputy City Attorney and Best Best & Krieger Partner Sonia Carvalho had been witness to John Valdivia’s shabby treatment of Sandra Ibarra no fewer than a dozen times over the last six to eight months, times when the mayor precluded the councilwoman from fully participating as a member of the city council to which she was duly elected, Carvalho had not once stepped in to challenge the fashion in which Valdivia was marginalizing Ibarra.
Wednesday night, during the February 19 San Bernardino City Council meeting held in the Bing Wong Auditorium at the Norman F. Feldheym Library, there was heavy turnout that included dozens of residents bearing placards calling for Valdivia to resign as mayor. Pelayes was there, looking on and sizing up how the mayor was going to carry on in what had to be the most challenging night he has spent functioning as the city council’s presiding officer. No fewer than three television film crews were present to capture the contretemps. Not far from the forefronts of the minds of many of those in attendance was the failure of Ledoux and Carvalho, two women who had risen to or very near the apex of municipal governance and function in San Bernardino, to uphold the city’s standards of decency, fair play and propriety in the face of the caddish and domineering behavior of a man who was abusing his power as mayor. Indeed, for many, a central element of what had befallen Cisneros, Cervantes and Ibarra was the cowardice Ledoux and Carvalho had evinced by their unwillingness to stand up in the face of the bullying their sister employees/officials had been subject to.
Anticipating that things might get ugly during the course of the meeting, Carvalho had arranged that her colleague at Best Best & Krieger, Thomas A. Rice, who is also San Bernardino’s assistant city attorney, be on hand. As the deputy city attorney, Carvalho is the workhorse who reports to the mayor, city council and city manager on a constant basis, and since Best Best & Krieger was brought in as the city’s contract law firm in 2018 she has attended virtually all of the city’s council meetings.
Rice, who speaks in a clipped British accent, is the city’s legal showhorse. He is rarely present at city offices or functions, but is trotted out when city officials are seeking to put an urbane foot forward to make a superficial impression on those it is dealing with. Such was the case Wednesday night, when Carvalho, Ledoux and Valdivia were hoping that Rice might finesse the crowd and take some of the fire out of those who were present to give Valdivia a piece of their collective mind. Carvalho had Rice address the issue of what the city council had addressed in closed session, which not surprisingly related to Cisneros’s and Cervantes’ progress toward suing the city.
Rice said, “In the closed session, we discussed two claims the city has received from members of staff in the mayor’s office relating to sexual harassment allegations. The city has strictly complied with its harassment policies, has engaged a special independent investigator who will conduct an investigation. The investigator has asked to be expeditious. Following the investigation, a neutral report will be provided to the city to review, and information will be shared with the public.”
That report is due within 45 days. Notably, Rice’s statement did not disclose which of the council members had voted to disclose the investigator’s findings and which members had voted against doing so.
Any hopes Carvalho, Ledoux and Valdivia harbored that Rice’s statement would quell the crowd were dashed when public comments were heard.
Esmeralda Negrete accused the city council and the city of “looking out for the interest of one person and one person only.”
Sandra Salazar said, “The lawsuits are going to cost the city a lot of money. It is mind boggling. We can’t afford this litigation. It’s ridiculous. Do the city a favor and please resign, John, please. We cannot afford all of your mistakes.”
Barbara Babcock said, “Mr. Valdivia, I think you love this city. And the best thing you could do for this city is step down and resign.”
Tim Prince said, “Mayor, you are an embarrassment.”
Bill Rainbolt told Valdivia, “I want you to think when you look at your little daughter, when your daughter grows up, you wouldn’t want anyone to do that to your daughter. Do the right thing as a man and resign.”
Thomas Fleming said, “Mr. Mayor, I understand. You know, sometimes we go out and drink. I’m guessing you had a little too much to drink.”
Hilda Wendtland said, “Mr. Mayor, I’m speaking to you now because I love San Bernardino. I have 500 people who I’ve asked to put their signatures on mortgages. And I told you this, every time I sell a house in San Bernardino, somebody signs their mortgage to $300,000. I cannot sell a house in a city that is going bankrupt. I love this city. I really do. I am going to speak to you now in a manner you understand, since I understand you were a theologian. When the women argued in front of Solomon in First Kings 3:23, it says ‘The woman said, ‘Please, don’t kill the baby. Let her have it.”’ Are you listening, because this is for you: ‘Solomon said, “That’s the real mother.”’ When you love something, you let it go. Please resign.”
Treasure Ortiz said “How about these two ladies, Karen and Mirna, who have been sexually harassed? All the receipts are out there. And we have to wait 45 days for what? To do what? To figure it out? To cost the taxpayers more money? To be bigger puppets to the mayor than you have been for the last year? When do you start thinking for yourselves? When do you start representing the City of San Bernardino? When do you protect the employees that work so hard to cover your mistakes? Why is it that you are so easily swayed and bought and sold by a nobody mayor? That’s the guy that you guys listen to? That’s the guy that you guys do things for? Why? Do you love San Bernardino? Do you want us to be better? Do you have any idea what an amazing city you have been chosen to represent? And yet, you fail us. You may not be responsible for the past. But damn it! You own the present and you will live this legacy in your future. When they Google your names, you will be just like John: front page, sexual harassment in San Bernardino. San Bernardino Council retaliates. San Bernardino mayor calls former city manager corrupt. That’s what you guys want to attach your names to? Doing the right thing doesn’t require an elected official’s job. It doesn’t require you to make a lot of money. It doesn’t even require you to get out of bed. You’ve just got to make a phone call, and say, ‘You know what guys? We watched it happen, right in front of us. The employees begged for our help, and nothing happened. We did it to the city manager’s office. We’ve done it to other employees.’ That’s all you have to do, is stand up and be people, individuals. What is happening cannot happen anymore. Karen and Mirna lost their jobs because they couldn’t take the mayor’s sexual harassment. If that was your family member, what would you be doing? Sitting there supporting him, or doing the right thing?”
Robert Porter said “Mr. Valdivia, please, you made us look real bad in the newspapers. You made me look real bad for supporting you, a paid supporter of you. I can’t take that. I can’t feel that way. I love San Bernardino more than I love you. The way you made us look, it hurt me. The people in the city are scared of you. We don’t need a bully in there. We need one to check their ego. Maybe alcohol messed you up a little bit. Well, get some help with that. Stop drinking alcohol. I now you’re not going to resign, even though a lot of people would like you to. I think you should do what’s best for San Bernardino and do that, but if you can keep San Bernardino moving forward in good way while you’re still there – but I don’t think it’s going to happen with another election, man. That wasn’t cool what you did, and these girls don’t deserve sexual harassment. They don’t want to be dragged through the mud like that. They’re Republicans, man. You helped pick ’em. How could it be political? I’m just super-disappointed in you, dude.”
When Councilwoman Ibarra left the dais to go toward the public speaking podium, with Valdivia’s leave, Deputy City Attorney Carvalho took a stab at trying to dissuade her by suggesting that what she was doing was unnecessary and lacked professionalism.
“Each of you as council members have a right to speak under the First Amendment and speak and share your opinions,” Carvalho started, then continued, “I find it highly unusual that you would have an elected member of the council come down to the speaker area. All comments can be made from where you sit, at the appropriate time. It is of course up to you as a council. But I do need to bring it to your attention that we do try to run a professional meeting, and that it is highly unusual.”
Carvalho’s verbal sally at Ibarra did not have the desired effect, as the councilwoman did not turn away from the lectern. From somewhere in the crowd, someone could be heard half-yelling at Carvalho, “Then tell the mayor to quit shutting her down and let her speak.”
As it would turn out, Ibarra was seeking to use the public forum to address an element of the issue – the operation of the city’s animal shelter – which had originally poisoned her relationship with Valdivia. When she got to that subject, she dealt in some detail about the city’s euthanizing of dogs without a hearing, which she said was a violation of the city’s code and was occurring with frequency. She cited the recent putting down of a dog name Bader in illustrating her point. Prior to that, however, she took up the subject of the scandal permeating the city.
In reference to Carvalho’s attempt to shame her into silence, Ibarra said, “I came up here because I believe last time we were told we couldn’t speak from the dais.”
Looking straight at Valdivia, Ibarra said, “As a constituent who in November 2018 voted for change in our city, positive change for our city, I was really looking forward to that positive change, Mayor. I’m here to ask you – if those allegations are true and only you know whether or not they are true, but if they are true, please [for] the taxpayers and the 19,000-plus voters who put their faith in your hands to move our city forward – step down.”
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.”
Judge Charles Umeda yesterday ruled that Alex Opmanis will face a jury of his peers on charges he murdered Sammy Davis in a confrontation in the parking lot of Goodwin’s Market in Crestline last July.
Yesterday, February 20, was the fourth day of the now-28-year-old Opmanis’s preliminary hearing, a legal proceeding which had been spread out over a three-week duration, and which resumed and concluded six days after the third and last day of testimony and presentation of evidence on February 14.
The then-27-year-old Opmanis shot and killed Davis, 29, a motorcyclist who was in the company of two other bikers, Shane Codman, then 29, and Robert Shuey, also 29, when the incident occurred. Opmanis did not previously know Davis. He did, however, have a previous relationship with both Codman and Shuey, which included a previous incident during which Shuey had beaten Opmanis severely, resulting in Opmanis having to be hospitalized, undergoing facial surgery, and losing a portion of his vision in his left eye. Evidence and testimony presented previously in the preliminary hearing indicated Davis had initiated an assault on Opmanis in the seconds prior to Opmanis fatally wounding him. Both Davis and Shuey had extensive criminal records. Initially, the agency that investigated the shooting, the San Bernardino County Sheriff’s Department, which had access to a full unedited and unaltered video of the shooting, made a determination that Opmanis had acted in self-defense. It was not until one month after the shooting that Opmanis was arrested and then charged with murder in the killing.
Because Opmanis’s attorney, Deputy Public Defender David Striker, was previously engaged in a trial on another matter, Opmanis’s preliminary hearing had proceeded in fits and starts over the course of three weeks. On Friday, January 31 the proceedings had gotten under way with the testimony of detectives Gerardo Moreno and Kevin McCurdy, as well as Deputy Victor Ruiz. On February 7, Detective Michael Cleary of the sheriff’s department’s homicide division testified, followed by Detective Eric Ogaz, who led the investigation into the shooting under the supervision of Sergeant Angelo Gibilterra and Sergeant Joseph Steers after the initial examination of the matter by Detective McCurdy had concluded the day after the shooting with a finding that there were plausible grounds to demonstrate Opmanis had acted in self-defense. Ogaz interviewed Codman on July 25 and Shuey on July 29, both in the presence of their attorneys. Thereafter, largely on the strength of Codman’s and Shuey’s statements, the sheriff’s department had obtained an arrest warrant for Opmanis on August 9, but did not arrest him immediately. Rather, Ogaz invited Opmanis to a follow-up interview on August 13, and after questioning him, arrested him at the conclusion of the interview. Ogaz testified about his investigation and his interviews of the witnesses and Opmanis. Because Striker’s cross examination of Ogaz had not concluded on February 7, Ogaz again testified when the preliminary hearing resumed on February 14.
Over the last week, Judge Umeda had reviewed that testimony and had viewed a version of the video of the shooting provided to him by the district attorney’s office. That video had originated as one recorded as part of the security system at Goodwin’s Market, located at 24089 Lake Gregory Drive in Crestline. The security system employed several video cameras, including at least two externally mounted ones aimed at the store’s parking lot where the shooting took place at 9:14 pm on Thursday July 11, 2019. One of those video cameras was positioned virtually straight in front of where Opmanis’s Mercedes Benz SUV was parked. The shooting took place just next to the driver’s side of the Mercedes Benz as Opmanis and Davis were involved in a physical confrontation.
While Judge Umeda indicated he had viewed the moving images of the video, he did not say he had listened to its audio contents beyond the loud report of the gunshot that had felled Davis, and from the judge’s remarks in court yesterday, indications were he had not considered the video’s sound element, which contains substance directly related to the testimony provided during, and the gravamen of, the hearing. The utterances of Opmanis and Davis, which are audible on the video tape, are relevant, as well, to several of the issues dealt with in the judge’s ruling. The video was altered from its original form either by the someone in the sheriff’s department or within the district attorney’s office, and was presented in fragmented form to the defense, with several of the fragments missing, including a crucial 12 to 13 second gap that starts roughly 15 seconds before the shooting takes place, such that the passage showing the shooting starts just two seconds or so before a shot from Opmanis’s gun can be heard.
Upon the resumption of the proceedings yesterday, all testimony and the presentation of evidence having been concluded last Friday, Judge Umeda was awaiting concluding arguments from Deputy District Attorney David Starr Rabb and Striker before making his determination.
Rabb, tersely, asked Umeda, based upon the evidence and testimony presented during the preliminary hearing, to hold Opmanis to answer on all the counts he has been charged with, which include PC 187, murder; PC 12022.53(B), unlawful use of a firearm; PC 12022.53(C), unlawful discharge of a firearm; and PC 12022.53(D), unlawful discharge of a firearm causing death.
Striker asked that all of the exhibits used during the preliminary hearing be moved into evidence, a request Judge Umeda granted. Thereafter, Striker was more expansive in his remarks to the court than had been Rabb.
Striker said he was asking the court to dismiss the case on the grounds that Opmanis’s action had been taken in lawful self-defense. The defense attorney said that statements made by prosecution witnesses elicited both by himself on cross examination and by Rabb on direct examination had “articulated a lawful self defense shooting of Mr. Davis.” The testimony of the detectives who had investigated the matter, Striker said, established that Opmanis had “no idea” that Shuey, Davis and Codman would be at Goodwin’s Market that evening, thus eliminating any possibility that Opmanis had plotted the shooting with malice aforethought. The video demonstrated that Opmanis was at the store for the legitimate purpose of shopping in so far that it shows the defendant putting the groceries he had purchased into his car. The video shows, Striker said, the motorcycles driving through the parking lot, and after they have initiated leaving the parking lot and then returned, Davis dismounting from his motorcycle, taking off his helmet, jacket and backpack and walking toward Opmanis. The video further demonstrates that Shuey, Davis and Codman were surrounding the defendant on public property, Striker asserted, and he said the evidence demonstrated that Shuey had previously assaulted his client. The prosecution had not disputed those facts, Striker said, nor had it controverted that Opmanis had suffered a serious beating at the hands of Davis’s companion, Shuey, some six months prior to the fatal confrontation in July. All of that information had come from the deputies investigating the case, Striker said. Furthermore, it was established that Opmanis had suffered serious head injuries, and that just prior to the shooting he was surrounded by Shuey, Codman and Davis, three motorcyclists, two of whom – Davis and Shuey – had dismounted and were near him. The video showed, Striker said, that Davis had approached Opmanis aggressively in what Codman had called a “power walk.” The evidence and testimony was that Opmanis had no previous animus toward Davis, did not know him, did not threaten him, did not level a gun toward him and did not engage in fighting words with Davis prior to the shooting, Striker propounded. The missing 13 seconds of the video omitted the action which occurred just prior to the shooting, but what is visible before the video gap, Striker said, showing what looks to be the initiation of a physical struggle toward the back of Opmanis’s vehicle, taken together with what is visible after the video resumes nearly 13 seconds later with Opmanis and Davis having moved to the driver’s side door, is “consistent” with Opmanis’s statements to detectives that he was being administered a “beating” by Davis and that he had reached into his car to retrieve his gun at that point. The video shows Opmanis “shooting from the driver’s side of the vehicle,” Striker said, which further matched Opmanis’s statements to the investigating detectives.
Striker reminded Judge Umeda that he had rightfully discounted suggestions by the prosecution and had not allowed into evidence Detective Ogaz’s speculation based upon Shuey and Codman’s statements that Opmanis had a gun hidden in his sweatshirt, which shored up Opmanis’s version of events that held he had shot from the driver’s side of the car after he managed to obtain his gun from inside it, and only after he was being viciously assaulted by Davis.
The sole contradiction of Opmanis’s claim to being assaulted consists of Codman’s statement to that effect, Striker said, but he noted that Codman and Davis were “childhood friends.” Striker said that Shuey was more equivocal as to whether Davis was assaulting Opmanis in that he told investigators that upon his having circled back into the parking, Codman and Davis were in a confrontation or verbal altercation with Opmanis, and Shuey “was not sure” Opmanis had been hit by Davis.
Striker emphasized that Shuey said he did not see Opmanis with a gun. The defense attorney suggested that Shuey and Codman fleeing the scene to avoid law enforcement officers summoned by Opmanis in the aftermath of the shooting, and their not showing up for their interviews with the sheriff’s department investigators until more than two weeks after the incident, and then doing so in the company of lawyers, was significant when contrasted with Opmanis having remained at the scene of the shooting and fully cooperating with authorities. When asked by Ogaz to explain why he had fled the scene, Codman had declined to do so upon the advice of his attorney, Striker pointed out, and he said Codman and Shuey contradicted each other as to whether there was an altercation. While Codman downplayed the suggestion of any fight or struggle between Opmanis and Davis, Striker said Shuey told investigators he saw and heard a heated exchange between Davis and Opmanis.
Opmanis’s honking of his horn, which the prosecution had suggested during the preliminary hearing was intended to inveigle Shuey and his cohorts into a confrontation so that Opmanis could exact revenge upon Shuey for the previous assault Shuey had inflicted on him, was inconsequential, Striker asserted, in that both Shuey and Codman had claimed they had not heard the horn blares and they had not drawn their attention to Opmanis.
Striker took issue with the prosecution’s suggestion through the selective presentation of evidence and the statements of Shuey and Codman that the three motorcyclists were not aware of Opmanis’s presence in the parking lot before they circled back to come up to Opmanis’s vehicle, at which point they recognized him. Such a contention was suspect, Striker said, and contradicted by what is depicted on the video, which shows Opmanis and Shuey engaging in a set of vulgar hand gesture exchanges, i.e., flipping each other off, as Shuey is riding out of the parking lot. Striker said Shuey and Codman’s statements that they had not seen Opmanis in the parking lot prior to their having mounted their bikes to leave was dubious, given that they knew Opmanis and were familiar with the vehicle he drove and that the video shows them passing within twenty to thirty feet in front of where Opmanis was parked in front of the market as they emerged therefrom and were walking toward their motorcycles.
“My first request is to have this case dismissed and a finding that Mr. Opmanis acted in self defense,” Striker said to Judge Umeda. He said that Codman, Shuey and Opmanis all said that Davis was coming toward Opmanis in an aggressive manner prior to the shooting, and that interpreting all of the known facts in the case in as negative of a light toward Opmanis as is reasonable, the best case the prosecution could present in any event “would amount to voluntary manslaughter and not murder.”
Striker said, “The fact that there is no assault on the video means absolutely nothing because that assault occurred in the missing 13 seconds.”
Striker reiterated that the case against Opmanis at most added up to manslaughter, based upon what could be interpreted as a matter of “imperfect self-defense,” and he asserted that the case, as it is presently charged, should be dismissed.
Rabb, who continued to be terse and measured in his response, said that “the People have shown enough probable cause” to justify the charges. Rabb noted Codman and Shuey attempted to speak with deputies the day after the shooting. Rabb brought up Opmanis’s honking of his horn, and he said Shuey, Codman and Davis were leaving the parking lot and were drawn back to the parking lot by Opmanis drawing their attention to him. Opmanis, Rabb said, “made no effort to leave” and “called these individuals over to the location” where the shooting took place. Rabb said that Striker’s concession that a case for an “imperfect self-defense” meant that the degree of Opmanis’s guilt “is an issue for a jury to decide.”
Rabb did make a notable misstatement to the court, evincing a less than comprehensive command of the facts that make up the case, when, in seeking to deflect Striker’s assertion that Codman’s and Shuey’s claim that they had not noticed Opmanis in the parking lot prior to their having started to ride away was not credible, Rabb conflated Codman with Shuey. The prosecutor asserted that Codman had undergone LASIK surgery to improve his vision some time shortly after the incident. In fact, it was Shuey who underwent the LASIK procedure.
Rabb asked Judge Umeda to hold the defendant to answer at trial.
Striker responded to say that his client had honked his horn to get people’s attention because he wanted to bring all eyes to himself in case he was assaulted by the trio.
Striker told Judge Umeda that if his client were to be held over for trial, it should be on the basis of a voluntary manslaughter charge, which was the only plausible guilt scenario the prosecution could reasonably present.
Rabb said the court should hold Opmanis over for trial as he is currently charged, and that a jury should decide the issues and his fate.
Judge Umeda said, “The court did review the video numerous times to see what occurred before the shooting. It is clear from the video that Mr. Codman, Mr. Shuey and Mr. Davis are leaving the parking lot. I looked carefully to see what gestures were being made. When you look at Mr. Opmanis, clearly he is on the guard rail [of his Mercedes Benz SUV, elevating and putting himself in better view of the motorcyclists as they are riding out of the parking lot].”
Judge Umeda said he could see Opmanis gesturing at Shuey as he rode by, somewhat squeamishly departing from his posture of judicial decorum in referencing “using the term ‘flipping him off,’” to convey Opmanis’s action. At the same time, the judge said, he could not make out what the defense and others who have viewed the video believe provoked Opmanis’s disrespectful gesticulation, that is, Shuey having first flipped Opmanis off.
“I do not see any hand motion by Mr. Shuey,” Judge Umeda said. “I looked to see if he made a hand gesture. I did not see that on the video.”
Judge Umeda continued, delineating in some depth how Opmanis’s waving of his arm, his honking of his horn, his having flipped Shuey off and the general drawing of attention to himself which ultimately resulted in the three bikers coming back into the parking lot rather than leaving and thereby leading to the confrontation that resulted in the shooting figured into the court’s ultimate conclusion. “As that motorcycle is going past the vehicle, you can hear the horn honked,” Umeda said. While the judge said Opmanis’s reason for honking the horn is in dispute, with the defense providing a benign interpretation and the prosecution a more sinister one, in combination with other elements of what occurred, a killing resulted, the judge reasoned. “Why [he was honking the horn], when did he take the gun out of the lock box, when did he grab the firearm – the video doesn’t show that,” Umeda said. Umeda then alluded to what was perhaps the most fateful link in the chain of events that led to the fatal outcome: “Mr. Codman circled back behind the back of the defendant’s vehicle,” Umeda said, the implication being that Opmanis’s action had summoned the three motorcyclists to come back to the parking lot after they were set upon leaving. It was Codman’s return to the parking lot to drive up to Opmanis and his vehicle that resulted in Davis and Shuey coming back to the parking lot, as well. The judge then noted that the individual with whom Opmanis had a previous violent history was already gone and would have remained gone if it had not been for Opmanis’s insistence on inviting the attention of the motorcyclists. “Mr Shuey came back to the parking lot after he had left,” the judge said.
Judge Umeda continued with his description of what he could discern on the video, saying that in the closing seconds of 9:14 pm, “Mr. Davis is seen approaching the defendant. The defendant appears to be turning his back.” It is shortly after that point that the 13 second gap ensues. When the video resumes at 9:14:09 pm, Judge Umeda said, “You see movement. You see the person in the black T-shirt still by the car. You hear the shot, one shot. That’s what the court sees. This raises more issues for the court than it answers about what happened before the shot is fired.”
Judge Umeda continued, “Many cases [are about] who did it. This is a case of who[m] do you believe. The credibility of the defendant and the credibility of Mr. Codman and Mr. Shuey [are defining issues in the case].”
Neither Codman, Shuey nor Opmanis were sterling examples of believability, Judge Umeda said. This called for an examination, interpretation and a balancing of their differing versions of events, the judge said. Ultimately, however, Judge Umeda said, he as the judge should not be empowered with that interpretation or ultimate determination, which more properly rests with a jury. He cited decisions in the cases of People vs. Marilyn Zemek and Cooley vs. Superior Court, which held that a magistrate has a limited role in making a credibility determination in a preliminary hearing and that dismissing the case is not called for even if the defense is seen to be slightly more credible than the prosecution’s witnesses. The only justification for dismissing a case against a defendant at the preliminary hearing level, Judge Umeda said, is if the case presented by the prosecution is inherently implausible or the witnesses against the defendant have been impeached to the point that they cannot be deemed credible. Issues in doubt should be determined at trial, Judge Umeda said. He said the court has to rely on the credibility of the witnesses.
“So, as to the question of imperfect self defense,” Judge Umeda said, “for there to be perfect self-defense, the defendant has to actually believe he is in danger of being killed or suffering great bodily injury.” Judge Umeda said the right to self defense cannot be applied to a situation where someone provokes a circumstance to bring about a threat to himself and then uses that as “an excuse to use force.”
Judge Umeda said, “There were credibility problems with regard to all of the witness statements. They [Shuey and Codman] waited to report the crime. After they were requested to give statements, they did so only with attorneys present. The defendant gave numerous inconsistent statements with regard to why he was honking the horn and when he obtained the firearm from his car. And so, at this time, I find that the evidence provided by the prosecution witnesses through [their statements] is not inherently implausible in terms of what happened that night. Mr. Shuey said that after he had circled back to the parking lot he came upon Mr. Codman and Mr. Davis in a verbal altercation with Mr. Opmanis, and Mr. Codman said that Davis had approached the defendant in a hostile manner and was taking his gear off. Then you have the blank in the tape.”
Judge Umeda said that “It is during that blank in the surveillance video that the real facts regarding self-defense [exist], whether it [the act of shooting Davis] was unreasonable. After reviewing the evidence and the witnesses, the court finds there is probable cause to hold the defendant to answer whether murder was committed.”
Judge Umeda set March 3 for Opmanis’s arraignment. He heard Striker’s request that Opmanis be granted a recognizance release from custody or a reduction of his $1 million bail, based on the consideration that in the more than one month period after the shooting and prior to his arrest Opmanis had not fled and had cooperated with the investigators working the case right up to the time he was taken into custody. Rabb opposed that request, citing Opmanis’s previous residency in Utah and continuing connections to that state. Judge Umeda turned down the recognizance release or bail reduction requests based, he said, “on the severity of the offense and that a firearm was used.”
Within less than a month, two lawsuits have been filed against the Federal Aviation Administration, the San Bernardino International Airport and Hillwood Enterprises targeting the Eastgate air logistics facility, which local officials have touted as a major breakthrough for the long-awaited civilian reconversion of Norton Air Force Base.
The first of those suits was filed on January 29, 2019 with the United States Court of Appeals for the Ninth Circuit, in the form of a petition for review of the Federal Aviation Administration’s finding that there were no significant environmental impacts from the project. That action was brought by the Center for Community Action & Environmental Justice, the Sierra Club, Teamsters Local 1932 and two private citizens, Shana Sater and Martha Romero.
Today, California Attorney General Xavier Becerra came to San Bernardino to announce that his office had filed a civil suit against the same three entities – the Federal Aviation Administration, the San Bernardino International Airport Authority and Hillwood Enterprises – contesting the approval of the air cargo logistics center.
On December 23, 2019, the Federal Aviation Administration issued a finding that the construction of the massive-scale project on the northeast portion of what was formerly Norton Air Force Base will have no significant impact on the environment that can not in some fashion be mitigated. Seven days later, on December 30, the San Bernardino International Airport Authority approved a 35-year ground lease with master developer Hillwood Enterprises for roughly 100 acres of land at the aerodrome to move that project toward reality.
According to the environmental impact report on the project, “San Bernardino International Airport Authority proposes to develop the Eastgate Air Cargo Facility to accommodate the demand for air cargo logistics operations” and the project will involve “construction of taxilanes and an aircraft parking apron to accommodate up to 14 aircraft, a 658,500-square-foot distribution center with connecting aircraft ramps, two 25,000-square-foot maintenance buildings, and automobile parking with approximately 2,000 parking stalls.” The upshot of the environmental impact report, which was paid for by Hillwood, was that the environmental review of the project was comprehensive, and measures built into the conditions of approval for the project will ensure mitigation of air and noise pollution and increased truck traffic.
The San Bernardino International Airport Authority was formed as a joint powers authority to oversee the civilian use conversion of Norton Air Force Base after it was shuttered in 1994, involving the County of San Bernardino and the cities of San Bernardino, Colton, Highland and Loma Linda. For more than two decades, despite the diversion of over $350 million in local tax money and federal and state infusions of funds that included $142 million ventured toward the creation of a modern passenger terminal and concourse, and another $210 million invested in airport facilities, the airport languished, with only marginal income generated from the leasing of hangar space. Much of the facility for more than two decades sat fallow and virtually unused, as the airport has yet to host any commercial airlines, although corporate jets and other private pilots did land at the Million Air corporate aviation facility from 2010 until 2012.
Currently, the San Bernardino International Airport Authority’s board consists of San Bernardino Mayor John Valdivia, San Bernardino Councilman Theodore Sanchez, Loma Linda Councilman Ovidiu Popescu, Highland Councilwoman Penny Lilburn, Colton Mayor Frank Navarro and Third District San Bernardino County Supervisor Dawn Rowe. Seeking to overcome their predecessors’ legacy of tolerating a circumstance in which the authority signed off on the expenditure of hundreds of millions of tax dollars redirected from the participating jurisdictional entities to run the airport and make improvements there while very little was accomplished in terms of making the air facility and its accompanying structures and facilities viable operations, the board embraced Hillwood’s Eastgate plan.
The project’s opponents contend the environmental review was less than exhaustive and that the impacts from the undertaking will have a deleterious effect on the environment and quality of life of those in close proximity to the project. Opponents of the project said the impact on the air quality over San Bernardino, Highland, Loma Linda, Redlands, Grand Terrace, Colton and as far away as Yucaipa and Mentone would prove onerous, and efforts to mitigate or offset that impact had not been adequate. Environmentalists said the project would wreak untold havoc on critical habitat for the spotted owl, a near-threatened species.
Those project opponents networked with environmentalists and groups who consider the proliferation of logistics operations, which are infamous for offering employment providing low and modest wages, as being a poor longterm investment for the region.
That led to the suit/petition from the Center for Community Action & Environmental Justice, the Sierra Club, Teamsters Local 1932, Sater and Romero.
The petition states, “Petitioners ask this court to set aside FAA’s orders issued on December 20, 2019 and December 23, 2019 as arbitrary and capricious because they are contrary to federal law and unsupported by a convincing statement of reasons in the record. Petitioners further request this court vacate the December 30, 2019 ground lease agreement by and between SBIAA and Hillwood because it is predicated on those unlawful orders. Finally, petitioners ask this court to require FAA to prepare an environmental impact statement for the proposed project in accordance with applicable federal law.”
“The FAA has chosen to ignore the dirty impacts this new airport terminal will create for us, but by their own assessment it will pump one ton of toxic air pollution into San Bernardino every day,” said Anthony Victoria, communications director at the Center for Community Action & Environmental Justice. “Developers and corporations should be required to meet stringent standards if they’re trying to build in a community suffering from the nation’s worst air quality, not given free rein to deplete our quality of life in San Bernardino.”
“This fight is emblematic of large retailers like Amazon not being held accountable for good jobs and clean air in the communities they’re operating in. People have had enough with the toxic truck pollution and exploitative jobs that rob them of a future,” said Adrian Martinez, staff attorney on Earthjustice’s Right to Zero campaign. “The Inland Empire is the heart of a national struggle for healthy air and jobs with dignity.”
In announcing the attorney general’s office’s civil suit, Becerra said, “This large airport expansion project will have a significant impact on the local community and families who call this area home. These families are already disproportionately burdened by pollution.”
The Sentinel’s efforts to obtain a reaction to the suit by airport officials, the San Bernardino International Airport Authority or any of the county or municipal officials or entities associated with it by press time today were not successful.
Esmeralda Negrete says she is seeking a position on the San Bernardino City Council representing the city’s Seventh Ward because city officials are squandering the enviable opportunity they have to capitalize on the community’s advantages to overcome its challenges.
“San Bernardino has so much potential,” she told the Sentinel. “It’s in a perfect location, an hour from the beach, the mountains and close to many Southern California attractions.”
Municipal officials have allowed the city’s greatness to fall from their grasp, she said. “I have seen the better years and I am confident that we can bring back the luster of our city,” she said.
Negrete said, “I believe that resident services need to come first and I will collaborate to provide those quality services to our families while working within our city budget. To the people of this city who are tired of broken promises or candidates who knock on their door asking them what the problems are, only to cater their response to something they think people would like to hear, I am offering an alternative. They can vote for me, an independent candidate who knows what the current problems are. I am the candidate with no strings attached. I’m running in hopes of giving San Bernardino residents the opportunity to vote for a candidate who is not being guided by campaign contributions.”
The general malaise that has gripped City Hall is what has motivated her to run, Negrete said.
“San Bernardino has been my home for more then twenty years and I am fully aware of the decline of services and the rise of problems in our city,” she explained, noting that the breakdown of government has impacted every quarter of the 61.95-square mile, 217,000-population county seat. “There is a misconception that north San Bernardino is better and gets everything, but that isn’t the case. The problems of decay and crime are everywhere, including the 7th Ward. Potholes and homeless encampments are here too. There are illegal marijuana swapmeets such as the one that was open for months at the closed Alpha Beta Market on Marshall and E Street and which now has been replaced by the drug dealers who park by the laundromat in the same shopping center and deal out of their cars. It’s similar to the situation as what had been happening at the shopping center on Waterman and 40th. Slumlords are also here. Package thieves and mail thieves are abundant. There are needles at children’s bus stops, in the parks, in the SBX parking lot. Adding to all those issues are the decisions of the majority of the current council. Their decisions and votes have made things worse.”
Negrete said cataloging the city’s problems would be an exhaustive task. Her intent, she said, is not to become mired in pessimism for the city’s present and future, but to deal as energetically as she can with each successive challenge as expeditiously as possible.
“The list can go on and on, but since the voters live here, there’s no need to continue describing things they already know,” she said. “Instead, I would like to share some solutions in no specific order.”
She said she would “restore library funding” through reprioritizing spending. “With the support of the council and San Bernardino residents, I propose to submit to the voters the abolishment of the mayor’s position to have a council-city manager form of government, as is the case in Highland,” she said. “The salary savings from the mayor’s position would be used to restore funding to our libraries.”
The expenditure rerouting through the abolishment of the glorified mayor’s post would extend beyond enhancement of the library, Negrete said. “We should look toward funding currently unfunded positions that provide revenue and direct services to residents such as code enforcement staff,” she said. “If we have no mayor, we would have no need for a chief of staff. I propose using the savings from the elimination of the chief of staff position to fund some of the many positions that provide direct services to residents which remain in the pages of unfunded positions.”
With regard to a landmark located within the 7th Ward, the Arrowhead Golf Course, Negrete said, “I am proposing a revamp of the municipal code to address future multi-housing/apartments where there are already plenty of existing apartments within a half mile radius. After looking into the criteria for historical designation, I learned that the golf course would probably not meet the requirements. However, the redrafting of the municipal code could address the concerns of residents in the city as a whole given that there are many areas with clusters of apartments.”
Given that more than 80 percent of the city’s budget is monopolized in the provision of public safety in the form of the police department and defraying the cost of the entirety of the city having been annexed into a county fire service zone, Negrete said, “Public safety and fiscal responsibility go hand in hand. The 5-Year San Bernardino Police Department Plan did not include the seven 2019 promotions. To get back on track of being fiscally responsible with public funds, I propose the abolishment of the seven promotions, and since Riverside has been a city used repeatedly for comparison, I would also propose the abolishment of the assistant chief of police position, and using the savings to create incentives to retain and attract officers. Our need for patrol officers remains a priority to address public safety.”
Negrete said she believes the response times of the police department “can be improved once funding is allocated for unfunded police department dispatch positions. I believe the allocation of funds is possible without increasing the police department budget by conducting the audit that has been spoken about but not been done, and creating civilian positions where sworn positions are not required.”
With respect to the tide of homelessness plaguing the city, Negrete said, “There is no need to hire more consultants to tell us what may work. We can adopt the tools that have proven to work such as, the ‘app’ by ESRI that the San Bernardino County sheriff has been using. The sheriff’s Homeless Outreach and Proactive Enforcement Task Force has proven that it has a formula which works, so let’s form that team here.”
Negrete, continued, “We should apply for funding from the $36 million that was allocated for San Bernardino County, so we can work on doing our part to end the homeless cycle. We should apply for and use grant funding to provide housing for our homeless veterans. We can have housing with localized services in the manner available at the Loma Linda Veterans Village. There’s no need to reinvent the wheel when sister cities have led the way with functional services in place.”
With regard to the city’s animal control function and its aged and delapidating animal shelter, Negrete said the formula that would work is one that utilizes both public and private assets.
“We already lost one community member on New Year’s Eve of 2017 when he swerved to avoid hitting two stray dogs, and losing one resident is one too many,” she said. “Using the model of the Friends of the Upland Animal Shelter can be the economical solution to keep the shelter in our city, and would open the opportunity for students and the community to be involved. In the future, I hope that a well-run local animal shelter will attract surrounding cities and they can again contract with San Bernardino.”
Negrete said she was respectfully requesting that the residents of the 7th Ward consider her positions on the issues before making their choice for a council representative on March 3. She invited communication or inquiries from the public through her email address, email@example.com.
Less than a month after an assemblyman whose district straddles Los Angeles and San Bernardino counties drafted legislation to to create a new governmental financing entity to counteract a move by San Bernardino County transportation officials to abandon the extension of Los Angeles County’s light rail Gold Line to Ontario International Airport, the San Bernardino County Transportation Agency moved to reexamine the public mass transit options for access to the aerodrome.
The San Bernardino County Transportation Agency, formerly known as San Bernardino Associated Governments (SANBAG) is, as its name implies, San Bernardino County’s regional transportation agency. With a board composed of representatives from all 24 of the county’s cities as well as its five county supervisors, the agency, known by its acronym SBCTA, is charged with managing the expenditure of Measure I money. Measure I was first passed by San Bernardino County’s voters in 1989, providing for a half-cent sales tax override countywide, with the proceeds dedicated to paying for road improvements.
In 1992, the MetroLink commuter rail system was established between Union Station in Los Angeles and the City of San Bernardino on a long existing track originally designed for heavy engines pulling freight cars. MetroLink utilizes diesel engines to pull its passenger cars and must share its track with at least four freight trains on a daily basis, such that it features departures no more frequently than every half hour.
In 2003, the first link of the light passenger rail Gold Line was established between Union Station and Sierra Madre Villa in Los Angeles County. Over $1 billion has been expended extending the Gold Line, consisting of a light rail train on two separate tracks running generally east west, currently to Azusa. The Gold Line runs with significantly greater frequency than does MetroLink, with departures and arrivals every five to seven minutes during peak commuting hours and every 12 to 15 minutes during off-peak hours.
The Gold Line Construction Authority right now is in the first stages toward a nine-mile, $806 million extension of the light rail line from Azusa to northern Pomona. The track will reach Pomona by late 2025. Thereafter, the line was previously slated to be extended another 3.3 miles from Pomona through Claremont to Montclair at that city’s existing Montclair Transit Center. From there, the future intention was to extend it from Montclair to Ontario Airport. According to the Gold Line Construction Authority, the extension of the line from north Pomona to Claremont will entail a cost of $450 million. Previously, the Gold Line Construction Authority in conjunction with the San Bernardino County Transportation Agency, when it was previously known as San Bernardino Associated Governments (SANBAG), intended to continue the line from Claremont to Montclair, and then from Montclair to Ontario Airport.
Accordingly, the San Bernardino County Transportation Authority dedicated $39 million in Measure I dollars toward the Gold Line project and did a joint application with the Los Angeles Metro Transit Agency for a State of California Transit and Intercity Rail Capital Program grant. That application was successful and it brought in $250 million on the Los Angeles County side, which made a significant but not complete inroad on the $850 funding deficit that jurisdiction had, and provided another $41 million of the then-projected $80 million cost for the San Bernardino County portion of the projected expense on the eastern side of the Los Angeles County/San Bernardino County border in terms of getting the line to Montclair.
Subsequently, however, when the project went out to bid, it turned out the cost of building the line from Claremont to Montclair would not contain itself to an earlier $73 million projection or the later $80 million estimate, but had escalated to $96 million.
In reaction to that projected cost overrun, San Bernardino County Transportation Authority Executive Director Ray Wolfe said toward the close of the September 4, 2019 meeting of the authority’s board, “I’m going to come back to you through committee next month and hopefully to the board in November with a recommendation that we throw in the towel.”
Wolfe made good on that at the October 10, 2019 San Bernardino County Transportation Agency’s transit subcommittee meeting. That subcommittee is composed of representatives from the cities of Big Bear Lake, Chino Hills, Colton, Fontana, Highland, Montclair, Ontario, Rancho Cucamonga, Rialto, Yucaipa and the Third Supervisorial District.
Wolfe’s proposal is to dispense with constructing the new Gold Line Track into San Bernardino County altogether and to instead have Gold Line passengers heading eastward from Los Angeles or the San Gabriel Valley load onto another train at the Claremont Station which will run on the existing MetroLink track. That system will use so-called diesel multiple unit trains in what he said was a “hybrid” plan which he dubbed the “Gold Link.” Wolfe said San Bernardino County would return the $41 million State of California Transit and Intercity Rail Capital Program grant that had been freed up to allow the county to overcome the gap between the $39 million in Measure I money put up to complete the Gold Line extension from Claremont to Montclair and the earlier projected cost of the 1.2-mile extension.
Dismayed at what he perceives to be wrongheaded intransigence to regional cooperation intended to provide the foundation of what is to become the commuting methodology of the future, Assemblymember Chris Holden (D-41st District) last month introduced Assembly Bill 2011, which would create the West San Bernardino County Rail Construction Authority, an entity to be dedicated to designing and building the six-mile span of track linking Montclair to Ontario.
In response, SBCTA’s transit committee recently recommended that the San Bernardino County Transportation Authority commit $3 million to undertake a formal and comprehensive study of transit alternatives to and from Ontario International Airport.
According to county transportation officials, the intent behind the study would be to ascertain the most cost-effective and efficient options for providing transit access to the airport, which is being celebrated by Ontario as a major economic engine for the region. The options the authority said were on the drawing board included the building of a connector from Metrolink’s Rancho Cucamonga station using zero-emission passenger trains; the use of existing freight lines adjacent to the airport property; allowing the extension of the Gold Line from the Los Angeles County line to the airport; and some order of public-private partnership with emerging technology companies.
Including the Gold Line as an option represents a significant change in attitude on the part of SBCTA. In the immediate aftermath of Holden’s introduction of Assembly Bill 2011, San Bernardino County Transportation Agency President Darcy McNaboe exhibited a strong negative reaction, insisting that the authority she heads remained opposed to the Gold Line extension into San Bernardino County as “unnecessary and too costly” and that it was a commuting methodology that would take too much time to complete.
Last week she had toned down her rejection of the Gold Line extension, going on record as saying, “We appreciate the assemblymember’s desire to bring the Gold Line to San Bernardino County, and would welcome connectivity from L.A. County as part of a comprehensive package of enhanced transit opportunities not just to and from Ontario Airport but our county as a whole.”
She nonetheless enunciated her reluctance to have the San Bernardino County Transportation Authority surrender its bureaucratic turf to an upstart entity.
“However, we continue to emphasize that the establishment of another agency to develop and deliver the appropriate transit enhancements in our county is duplicative and unnecessary,” McNaboe said. “Rather, it would be more prudent to coordinate with the existing transportation authority that has a long history of meeting its obligation to its residents and businesses.”
Both dogs at the Oro Grande residence where 5-year-old Sterling Vermeer was mauled to death by one of those dogs on February 10 have been euthanized. No charges are to be filed against the deceased child’s parents nor against two adult relatives, the deceased boy’s uncle and one of his cousins, who were present when the fatal attack took place.
According to information available to the Sentinel, both of Vermeer’s parents were at work that afternoon. Young Vermeer, his female cousin, his uncle and the family’s 12-year-old pit bull named Thor were in the game room in the backyard of the Vermeer residence in the 15100 block of Portland Street in Oro Grande. The uncle and cousin were video-gaming. When Sterling asked to be allowed to participate, his uncle and cousin stepped out of the room and into the house to retrieve a controller compatible with the gaming console to allow the 5-year-old to play. When they returned to the room, Thor had its jaws clamped around the child’s neck, and would not let go.
A call came into the 911 emergency dispatch center at 2:57 p.m. reporting that the family dog was attacking the child and would not desist. Deputies arrived at the Portland Street address, where they found the boy dead from “traumatic injuries” he had sustained, according to a sheriff’s department statement. “The child succumbed to his injuries before law enforcement and fire officials arrived,” the department said.
A second dog, a 4-year-old Labrador and pit bull mix, was also at the residence. Though it was later determined that the younger dog had not been involved in the fatal attack, when San Bernardino County animal control officers arrived at the property, they found both dogs saturated with the child’s blood. Both dogs were confiscated.
An investigation into the matter was carried out by Detective Jeffrey Collins from the San Bernardino County Sheriff’s Department’s Victor Valley station.
The Vermeer family signed over custody of Thor to the San Bernardino County Animal Control Division. Sterling’s parents expressed a desire to have Thor euthanized, and subsequently consented to having the other dog put down as well. Though a determination was made that the Labrador and pit bull mix was not involved in the child’s death, it was felt its exposure to the carnage in which it had gotten a taste of human blood made it advisable for it to be destroyed along with Thor.
The clustered field sedge, known scientifically as carex praegracilis, as well as by the additional common names of field sedge and expressway sedge, is a species of North American sedge. Occurring naturally in the San Bernardino Mountains, carex praegracilis is cultivated in the specialty horticulture trade as a lawn substitute and in meadow-like plantings.
Native to much of North America from Alaska across southern Canada and throughout the continental United States, from Maine to California except for the nation’s southeastern region, Carex praegracilis grows in wet and seasonally wet environments in a number of habitats from low elevations up to 10,000 feet, including meadows and wetlands. It tolerates disturbed habitat such as roadsides and thrives in alkaline substrates. Carex praegracilis produces sharply triangular stems up to three feet in height from a network of thin, coarse rhizomes. The fine textured grass-like blades can reach 12 inches tall to form a thick weed smothering groundcover.
Under natural conditions it has a lush tousled appearance. In domesticated settings it is often trimmed to provide a low turf-like appearance. This plant tolerates drought, inundation, poor soils, salt spray, heat, cold, shade and foot traffic. It will thrive in sun and light shade, requiring some summer moisture but far less than the grasses used in conventional lawns. It will go summer dormant if allowed to get too dry. It is deer resistant.
Leaves are basal and alternate with 2 to 4 leaves all near the base of the stem, 1 to 3 millimeters wide, up to 14 inches long and mostly shorter than the flowering stems. Stem leaf sheaths tightly wrap the stem, the front translucent whitish, straight to slightly concave across the top and the tip not extended above the leaf base. The ligule, which is a membrane where the leaf joins the sheath, is mostly longer than wide. Leaves are hairless but rough along the edges, flat but V-shaped in cross-section when young, and ascending to spreading.
The inflorescence is a dense, somewhat cylindrical array of flower spikes from 1.6 inches to 2 inches long. The plant is very rarely androgynous and rather most often dioecious, meaning its individual plants bear stamens, i.e., male flowers or, alternately, carpels, i.e., female flowers in its inflorescences, but not both.
Its fruit develops in late spring through early summer, the pistillate spikes forming clusters of seeds, called achenes, each wrapped in a casing, called a perigynium, subtended by a scale. Pistillate spikes usually contain 4 to 12 fruits that are erect to ascending and overlapping on the stalk.
Pistallate scales are lance to egg-shaped, straw colored to reddish-brown with whitish edging and a green midrib drying to light brown, tapering to a pointed tip, about as long and wide as the perigynia and mostly concealing it.
The range of this sedge is spreading, especially along roadsides where the application of road salt has apparently encouraged its growth.
The butterflies and moths hosted by Carex praegracilis native to California include the umber skipper, poanes melane; the common ringlet, coenonympha tullia; the dun skipper, the euphyes vestris; the American ear moth, amphipoea Americana; the mountain beauty moth, syngrapha ignea; the American crescent borer, helotropha reniformis; the olive green cutworm moth, dargida procinctus; elachista cucullata; and the lesser wainscot moth, mythimna oxygala.
From www.calfloranursery.com, www.minnesotawildflowers.info, calscape.org/loc-San_Bernardino_National_Forest,CA and Wikipedia