Judge In Colonies Criminal Prosecution Case Sets February 1 Trial Date

SAN BERNARDINO—Superior Court Judge Michael A. Smith this week committed all parties to a February trial commencement date in the Colonies Partners Lawsuit Settlement Public Corruption Prosecution, which will come more than four-and-one-half years after the four current defendants were indicted.
The case involves the prosecution’s contention that Jeff Burum, one of two managing principals in the Colonies Partners, conspired with former San Bernardino County sheriff’s deputies union president Jim Erwin to extort and then bribe former county supervisors Bill Postmus and Paul Biane to induce them to vote in November 2006 in favor of conferring a $102 million settlement upon the Colonies Partners to bring to a close a lawsuit that company brought against the county over flood control issues at its Colonies at San Antonio residential and Colonies Crossroads commercial subdivisions in northeast Upland.
Also charged in the indictment is Mark Kirk, the one-time chief of staff to former supervisor Gary Ovitt, who voted in favor of the $102 million settlement. Kirk is accused of having taken bribes in return for influencing his boss to support the $102 million payout. Postmus, who was previously charged with acceding to the extortion and then accepting bribes from Burum, has pleaded guilty to all 14 charges lodged against him in this matter and another relating to his corruption in office when he later served as county assessor. He is set to serve as a central witness against Burum, Erwin, Biane and Kirk. The prosecution alleges the bribes were delivered to those involved – Postmus, Erwin, Biane and Kirk – by means of contributions Burum and his business partner, Dan Richards, made to political action committees they controlled.
The prosecution contends the case is one of the most elaborate and egregious cases of the corruption of public officials in California history. The defense, which has previously challenged the case on technical legal grounds and succeeded in having the trial court and appellate court dismiss many but not all of the counts contained in the May 2011 indictment, maintains the prosecution’s case is flawed both legally and factually.
The four-year-long delay is partially a product of those legal challenges by the defense in the form of demurrers and motions, some of which have been granted after time consuming deliberation by the trial court, and more time-consuming challenges of those rulings to the appellate court by the prosecution. At present, the prosecution is awaiting a decision by the Fourth Appellate Court of its appeal challenging Judge Smith’s dismissal of a single conspiracy count lodged against the four defendants.
Another complication exists in the form of the departure, earlier this year, of the counsel representing Biane and Kirk. While the attorneys representing Burum and Erwin – former federal judge Stephen Larson and Raj Maline, respectively – have been with their clients from the outset and remain in place, Biane recently took on Mark McDonald as his lawyer and Kirk is now represented by Peter Scalasi. McDonald and Scalisi need to come up to speed on the issues and details of the case.
Neither Burum nor Erwin are waiving time and a legal theory is making the rounds that their trial cannot be delayed for them beyond October. Thus, Smith’s ruling this week keeping them in abeyance until January could result in a motion to have the case against Burum and Erwin dismissed in its entirety by this fall.
Meanwhile, there have been suggestions that two trials should be held, one for Burum and Erwin and another for Biane and Kirk at a later date. Smith has resisted that and instead signaled his intention to have proceedings against all four defendants underway as of February 1, with a pretrial hearing on January 8. There is a suggestion that the case may involve separate juries for the defendants, but no decision in that regard has been made, though Smith appears to be leaning against that option. Complicating matters is the nature of the prosecution’s case, which involves statements obtained by investigators from Burum and Erwin. Those statements may not be admissible in a case prosecuted against them in common. For that reason, the prosecution may wish to have the case tried against them by separate juries so that during certain stages of the testimony one or the other jury will not be present in the courtroom. For a multitude of reasons, Smith may not want to indulge the prosecution in such an approach.
Maline has expressed doubt that the trial will commence on February 1 as Smith has suggested. He said he anticipates further motions for delays from McDonald and Scalisi as the trial date nears.
Smith imposed on prosecutors a drop dead date of December 4 by which they will have to provide defense attorneys with a list of the witnesses they plan to call at trial. Because the defense might then call witnesses to rebut the prosecution’s witnesses, Smith said he will wait until January 8 before determining a date by which the defense must specify to the prosecution the witnesses it intends to call at trial.

One year after the town of Yucca Valley expended close to $1 million to revise its general plan and municipal code, it this week elected to repeal a major section of the town code relating  to  residence-based business operations. In doing so it categorically exempted  home-based art studios from the having to obtain a permit, sparing such operations from being subject to a host of conditions imposed on other businesses based in residential zones. The town council at the direction of staff, led by deputy city manager Shane Stueckle, instituted what a staff report calls “revisions” of the city code relating to home-based businesses, creating, according to Stueckle, “a new class of home occupation permits. Artist/ Artist studios shall be exempt from the home occupation permit requirement, subject to the following standards: a. A maximum of two customers or two students per week may visit the residence. b. All employees shall be members of the resident family and shall reside on the premises. c. Outdoor storage of material and/or outdoor home occupation activity shall be limited to 10 percent of the lot area and shall be completely screened from public view. d. Artist studios within this class shall be permitted to participate in art studio tours and similar programs as they occur in Yucca Valley and the Morongo Basin.”
Stueckle’s staff report goes on to define art as “An original creation of an aesthetic nature in any variety of media produced by an artist and which may include creating, constructing or assembling sculptures, crafts, mixed media, performing arts, stone, masonry, electronic arts, murals, painting, photography and original works of graphic art, glass, mosaics, or any combination or forms of media, furnishings or fixtures.”
In addition, Stueckle’s report further extends its definition of what type of “art related uses [and] arts and craft uses” are deemed acceptable in home-based art studios, listing “framing, jewelry making, metallurgy, pottery, sculpture, specialty sewing/monogramming, and weaving. Art or art work as defined herein may be permanent, fixed, temporary or portable, may be an integral part of a building, facility, or structure, and may be integrated with the work of other design professionals. Art shail further be defined as the creative application of a specific skill that does not primarily serve a functional use (including but not limited to: vehicles, helicopters, weapons, functioning firearms, cottage foods, fishing and hunting gear, knives) that prevails over the artistic, aesthetic or decorative quality of the end project.”
The new ordinance defines an artist studio as a “property combining working and living space, in which original works of art are created and the primary use of the property is residential.”
Ostensibly, the town council made the exemption based on staff’s finding that to do so would facilitate an earlier council direction “to implement measures within the town’s programs, processes, and codes that support, encourage, and implement the artist industry within the town.”
Yucca Valley for several decades has been a haven for bohemian, beatnik and traditional artisans as well as entrepreneurs working in several type of media. Many of those have their operations located in traditional commercial or industrial zones, though others are located on residential properties. Some of those operations blur the distinction between traditional residential and industrial use, particular those which entail quantity production. The staff report essentially bypassed the subject of the potential conflict between such production intensive uses and traditional residential neighborhoods by reciting several  reasons why the town and town council find it desirable to allow artists to function out of their homes. “[T]he town’s parks and recreation master plan identifies numerous issues that identify the importance of arts within the town and the Morongo Basin,” the staff report states. “Yucca Valley has a rich and diverse cultural environment. There is a significant population of artists and musicians in the Morongo Basin.” The report further referenced “The abundance of local creative talent, a population interested in arts education, a vibrant music and art scene in the region, local leaders with a desire to enhance cultural programming and a diverse number of private sector commercial art establishments” in positing a justification for the change.
Nevertheless, the blanket exemption given to any home-based operation that involves what is represented as “art” or “artistic pursuit,” was not universally supported by town residents. The change has provoked the concern of those advocating strict enforcement of the town code to prevent commercial or manufacturing operations in residential areas. They questioned the need and rationale for any change to the regulations as originally framed, which were intended to prevent the intrusion of activity, noise, chemicals, pollutants or other undesirable by-products from manufacturing processes into the living environment.
Some questioned the timing of the town’s alteration of its code, which came one week before a lawsuit, Falossi vs. Koenig, relating to the obtrusiveness of a home-based operation, which happens to be an art studio, goes to trial.
David Falossi is an accomplished artist and sculptor who works in many media, including large heavy objects intended as outdoor venue decorations and art pieces. He works from his home studio located on Hoot Owl Trail. Falossi has been engaged in a lawsuit against Fritz Koenig since January 2009. Key to the litigation between Koenig and Falossi is a road which traverses Koenig’s property and over which all but one of Koenig’s neighbors transit to reach their residential properties. The road is not subject to an easement, although Koenig lets his neighbors use it as “a neighborly accommodation.”
Koenig has objected to what he characterizes as the industrial nature of Falossi’s fabricating operation that is central to his sculpturing and artwork, which involves welding, stone grinding and glass grinding. Koenig maintains that such activity is incompatible with a rural residential neighborhood and out of compliance with the town’s codes that were in effect since shortly after the town’s incorporation. Moreover, Koenig has objected to Falossi utilizing the dirt road across his property to drive forklifts and a large truck to transport both the raw material Falossi uses in his fabrication process as well as the finished artwork, which in some cases weighs several thousand pounds, to and from his home studio.
Falossi, who lives at his home studio with his wife and four children, has accused Koenig of harassing him and members of his family.
The contretemps between Koenig and Falossi spread from across their adjoining property line into the courts, entailing the granting of restraining orders. Falossi sued Koenig and their neighbor Nora Fraser in order to obtain the right to transit Hoot Owl Trail, including that portion crossing Koenig and Fraser’s property with his forklift and loaded and unloaded transport truck. Upon investigation, Koenig responded, filing his own lawsuit against Falossi for unlawful business practices, maintaining in his suit that Falossi was operating his home-based studio without a home occupation permit for the previous three-and-one-half years and at other times since 1989.
Falossi is well connected politically in Yucca Valley, having been recognized by the town for the quality and nature of his work. He also has warm relations with former Yucca Valley Mayor [and former state assemblyman and now congressman] Paul Cook as well as recently departed planning commission chairman Tim Humpreville. Last year, the planning commission and town council moved to liberalize its land use policy, with the planning commission making a recommendation that the city council alter its development code to allow greater latitude with regard to the type and nature of home-based businesses that can locate in the town’s residential zones. That change transformed Falossi’s operation from one that was technically out of compliance with the town code to one that was deemed by the town permissible under the new standards. Indeed, at that time, the town was accused of having “tweaked” its code specifically to permit Falossi’s operation. During the public hearing process prior to those changes being adopted, some residents objected that permitting such uses in residential zones had the potential of destroying the tranquility of their neighborhoods.
The case of Falossi vs. Koenig is set to begin on July 13 in Judge David Cohn’s courtroom on July 13. It is conceivable the towns action in exempting art studios from the regulations spelled out in the town code relating to home occupancy permits will be entered into evidence before the court. What is unknown is whether the jury or the court will consider the town’s action to vindicate Falossi with regard to the intensity of his art production operation or be interpreted by the judge or jury to be an indication that at the time Koenig launched his countersuit against Falossi that Falossi was indeed out of compliance with the town code as it was then framed.

Regardless of the outcome of Falossi vs. Koenig, the town of Yucca Valley has delcared by this new ordinance that the town will now decide what is and what is not art, and what of that art is “aesthetic.” The town has yet to state what town agent is qualified to make such determinations and the method to do so. The town eliminated its public arts advisory council three years ago.

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