Upland Lawn Watering Prosecution Points Up Contradiction With State Policy

(November 14)  The Book of Matthew says that “No man can serve two masters.” The Book of Mark counsels “Render unto Caesar that which is Caesar’s and unto God that which is God’s.” The lawmakers and the lawgivers say that the law should be obeyed, no matter what. But what is one to do when two different levels of government give two commands which contradict one another, such that only one can be obeyed?  On Monday, at 10:30 a.m. at Rancho Cucamonga’s West Valley Courthouse in Division R-9, Judge Jon Ferguson will oversee an attempt to answer that question.
Coming before Ferguson is Fernand Bogman, who has been charged criminally under the Upland Municipal Code with letting his lawn die.  Bogman will not come to court armed with an argument that he did not do as he is charged. He acknowledges his lawn has turned brown.
Nevertheless, he insists he is, given the totality of the circumstance, innocent and acting out of principle and in compliance with the state of California’s dictates. Moreover, Bogman asserts, when he attempted to comply with the city of Upland’s demands, City Hall evaded and ultimately would not answer his well-intentioned inquiries that would have allowed him to make compliance.
“My yard is well maintained,” Bogman said. “Starting in August of 2012, I stopped watering my lawn. California was in the middle of a drought. I continued to water my trees and plants and shrubs. Upland is located in a desert. Grass is not a native plant in Southern California. Growing grass here is fine if there is sufficient water. But ethically, morally and legally, to pour buckets and buckets of water on grass is wrong.”
In 2013, the city notified Bogman that he was out of compliance with the city code and would need to “abate” the situation. Initially he was told that he needed to resume watering his yard. But Bogman learned on his own that he did not necessarily have to have grass as a component of his yard’s landscaping and he began looking into replacing it with drought-resistant plants and vegetation that are native to California. He approached Jeff Zwack, Upland’s director of community development, to ascertain which plants the city would deem acceptable for domestic landscaping.
“I asked him to give me a definition of drought tolerant landscaping that would be acceptable to them,” Bogman said. “He said I should come up with something and they would let me know if it was acceptable. The city doesn’t know how to define drought tolerant landscaping. If the city doesn’t know what is acceptable to them, how do they expect us to know?”
The city’s failure in this regard and its insistence on a formula of more watering exacerbated the problem, Bogman said. “It is up to the city to come up with the proper code to implement their policy, which they are not doing,” he said. “All of the city’s officials do not accept my present landscaping. Some say they will accept the drought tolerant landscaping but the others will not let me put it in. Drought tolerant landscaping using native California plants requires that they develop a root system. You must give them some water and the root system will grow, but if you give them too much water the root system will not grow properly. The idea is to conserve water and the city people are telling me to use more water.”
Bogman said the city’s failure to understand this principle is on display on several city-owned properties, including at the Civic Center containing City Hall and the Upland Library. “Go to City Hall,” Bogman said. “Look at other city properties . There is bare ground there. There is no landscaping. So the city is in violation of its own rules.”
The city initiated proceedings against Bogman under its administrative citation authority in August 2013. The matter has now proceeded to court. Technically, the city of Upland and its prosecutor, Dan Peelman, have charged Bogman with  a violation of Upland Municipal Code Section  M8.12.020(D), maintaining nuisance landscaping. Peelman has also charged Bogman with a violation of Upland Municipal Code Section  M12.24.130, maintaining a nuisance parkway. In Upland, parkways are owned by the city but the municipal code requires that the most proximate landowner maintain them.
With regard to the second charge, Bogman maintains that he actually watered and attempted to save the tree in question, which is located on city property in front of the sidewalk in front of his house, but that some unknown condition beyond his control such as blight had infested it. He contends it was the city which neglected its own tree that caused it to expire. He said he believes it is the city’s responsibility to remove it and replace it, if replacement is deemed appropriate.
Bogman said, “The governor has declared a state emergency because of the drought, which is in its third year. We are not allowed to waste water, but the city requires us to spray enough water on the ground to maintain a green lawn. There is a contradiction there. What is more important, the welfare of the state as a whole or keeping up appearances? Don’t forget, we live here in a desert area. The Inland Empire is a desert that has been reclaimed. We can have grass here and people obviously do, but only by using massive amounts of water. In a drought, continuing to do that is immoral, in my opinion. I consider myself a good citizen. I consider myself a responsible citizen. The city of Upland is saying I am a bad citizen. I will go to court on Monday and let 12 other citizens of the state of California decide.”
Councilman Glenn Bozar said he questioned “why the city is handling this in this way. Look at what the governor [Jerry Brown]  did with his mansion up in Sacramento. He let his lawn go brown. There were pictures of it in newspapers all over the state. Taking this guy [Bogman] to court seems to me a peculiar way of doing this.”
Mayor Ray Musser told the Sentinel, “The problem is that this has gone on for months and months and there has been no cooperation. Had he [Bogman] just cooperated and been reasonable, there would not have been a problem.”
Musser acknowledged that some of the landscaping at the Upland Civic Center had been neglected.
“The city doesn’t have anything in the budget to improve our landscaping there at this time,” Musser said, in acknowledging the city is not in compliance with its own code. “What we hope to do is get together with a church group who will adopt that and when they come up with something that is acceptable, we will have that relandscaped at no cost to the city.”
With regard to drought resistant landscaping, Musser said, “When I first saw it, I didn’t like it. But now that I’ve seen more of it, it’s okay. It doesn’t look as nice as grass, which I prefer, but drought friendly plants are starting to grow on me, especially with how precious water is.”
Musser said he had personally gone to Bogman’s home with a city staff member to survey it. “The way he is keeping his plants and shrubs green  as best as he can looks nice, but his lawn is completely dead,” Musser said. “If he is putting in some water saving method, let’s finish it out is all we are saying.”

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