(January 21) UPLAND—The criminal case brought by the city of Upland against Fernand Bogman for not watering his lawn will proceed to trial on January 27.
In that matter, Bogman will be represented by attorney Michael P. Vollandt, who has recently notched a victory over the city of Upland, its police department, its code enforcement division and city prosecutor Dan Peelman for what was widely perceived as an overextension of the city’s authority.
Bogman was previously represented by public defender Gary Austin.
Austin and Bogman battled the city to a standstill thus far, with the city having managed to keep the case against Bogman alive, while subjecting itself to considerable negative publicity in the process that has brought the continuing tenure of the city staff member who oversees the code enforcement into question. Meanwhile city residents and those aware of the matter are beginning to question the wisdom of the city’s policy which requires what at least some consider to be the profligate use of water to maintain aesthetic standards during an ongoing drought.
The city initiated proceedings against Bogman under its administrative citation authority in August 2013. Technically, the city of Upland through Peelman has 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 and caused it to expire.
The city cited Bogman for having allowed the lawn at his residence, located in the 1000 block of West 14th Street, to turn brown. Bogman, who does not have official title to the property in question, informed the city he was not the owner of record. The city proceeded with its action against him anyway. Under the authority the city assumed as a consequence of the administrative citation ordinance the city had put in place following a controversial 3-2 vote of the city council the month prior to the issuance of the Bogman’s citation, a summary finding against him was made and collection of the fine was handed over to a collection agency.
Bogman protested the city’s action, only to be told the five-day deadline for making an appeal had elapsed. Citing principle, Bogman stood his ground and now the city is attempting to get a misdemeanor conviction against him for refusing to water his lawn.
Bogman acknowledges that he did in fact cease watering his lawn, having done so because of the continuing drought. Responsible public officials were calling for water conservation throughout the state, he claims, and he said he was personally convinced that “pouring buckets and buckets of water on grass, while water is growing ever more scarce, is immoral.”
Complicating the issue is that in recent months, Bogman has reseeded his lawn and it is now green. That occurred, however, after a protracted go-round with city officials in which Bogman, who has installed a drip irrigation system which delivers a precise amount of water to the base of the rose plants and shrubbery in his yard, attempted to learn from city officials what drought tolerant plants he could plant that would be acceptable to the city. What Bogman learned from that exchange was that the city did not have a policy in place with regard to drought tolerant landscaping,. He was instead told to preview for city officials what his plan was to see if it was acceptable. Moreover, according to Bogman, the city had blurred the distinction between drought tolerant and California native plants.
In November, Peelman attempted to have Bogman capitulate to the city’s request, offering to drop the prosecution of the criminal case if he would pay a fine and redress the situation with his lawn. Bogman refused, demanding a trial. On the day that the trial was to begin, Peelman failed to show up. This angered Judge Jon Ferguson, who was hearing the case. Ferguson was on the brink of dismissing the city’s case against Bogman at that point, but told Bogman to return to court the following week, and Bogman complied. The case has continued to drag on. In the meantime there has been considerable publicity with regard to the matter, not limited to the local area but extending into the Los Angeles media market and beyond. Some of that publicity has been less than flattering to the city.
Of particular moment in the information being played out publicly is that the city itself has properties where it has allowed its landscaping and vegetation to go unwatered, a point Bogman made repeatedly in his interviews with the news media. In responding to that point, Upland Mayor Ray Musser lamented that the city had been less than fully conscientious about keeping its own landscaping maintained to the same standard its code enforcement officers were imposing on the city’s residents because the city did not have the financial resources appropriated to restore landscaping that had perished during the drought, now more than three years running. The hypocrisy of the city’s action was widely denounced by media pundits.
Also brought out was that Bogman was adhering to a mandate by California Governor Jerry Brown, who had appealed to the residents of the state to cease irresponsible water use and emphasized the mandate by ceasing the watering of the lawn at the governor’s mansion in Sacramento.
Even more than the city’s reputation is riding on the Bogman prosecution. One specter hanging over the matter is the city’s administrative citation ordinance, which was passed just prior to the citation being issued to Bogman. That ordinance gave the city’s code enforcement division sweeping authority that extended from citing individual residents or business owners to creating a process by which the citation would be adjudicated and the guilt of the party cited ascertained or determined by the city. The process then provided for the city to levy fines of up to $1,000 per day on offenders who had not been given the opportunity to plead their case before an independent magistrate or hearing officer. The administrative citation ordinance was a controversial proposal from the outset, and was passed on a 3-2 vote of the council.
One of the administrative citation ordinance’s architects was community development director Jeff Zwack. The use of the ordinance in the city’s enforcement action against Bogman, now playing out under the microscope of media attention and all of the particulars of Bogman’s case entails – in particular an effort to criminalize a resident who asserts as his defense his own crisis of conscience in having to abandon the principle of water conservation buttressed by the state governor’s mandate in order to comply with a city ordinance that gives no consideration to the extenuating circumstances of drought and a state mandate that conflicts with the ordinance – is now being seen as a referendum on Zwack’s performance in his position of trust and authority with the city. The Sentinel has learned that at least two of the city council’s members are contemplating firing Zwack. Thus, Peelman’s ability to extract a pound of flesh from Bogman – and thus acquit the city with regard to the administrative citation authority it has assumed – is seen as a crucial factor in whether Zwack will remain employed in Upland.
City prosecutor Peelman, perhaps seeking to shore up the city’s position vis-à-vis the Bogman prosecution and Zwack’s responsibility in laying the groundwork for it, engaged in an atypically vitriolic personal attack during the round of questioning earlier this week when the media learned that he had again offered Bogamn a plea bargain in the form of a $1,000 fine in exchange for a dismissal of the criminal action against him and that Bogman had turned that offer down.
Peelman stridently accused Bogamn of “blatant” disregard of the city’s landscape standard ordinances and of seeking to manipulate the media by making “disingenuous” statements that Peelman suggested falsely implied Bogman had allowed his lawn to die because of his concern about the drought when in fact, Peelman claimed, Bogman had taken up the issue of water conservation because it was “politically advantageous” to do so.
Meanwhile, Bogman’s attorney, Michael Vollandt, the managing attorney at the Upland-based Law Offices of Marc Grossman, is heading into the case with a determination to demonstrate the city is abusing its code enforcement authority. Vollandt recently concluded a defense of Grossman, who was accused by the city of having failed to display a business license for a second hand store Grossman was running in one of the two buildings he owns in Upland. Peelman had upped the ante in that case, seeking to get a criminal conviction against Grossman. Vollandt had demonstrated, however, that Grossman had indeed paid for the business license but could not display it because the city had failed to forward it to him. Vollandt prevailed in that case by calling Peelman’s bluff, insisting that the case be taken to trial. Faced with the prospect of having to explain to jurors why the city had cited Grossman for not having the business license on display when it was a city official that had failed to give Grossman the license even though he had paid for it, Peelman folded and the case was dismissed short of trial.
Vollandt said he will on Bogman’s behalf put Peelman and the city through their paces.
“The city wants to put its citizens in jail if they conserve water by not watering their lawns,” Vollandt said. “We believe a jury of Mr. Bogman’s peers will feel differently if they are given access to the facts of this case.”