Suit Testing Extent Industrial Uses Can Fit Into Desert Neighborhoods Goes To Trial

(July 17) The case of Falossi vs. Koenig went to trial in San Bernardino Superior Court this week. Involving a dispute between two property owners in a residentially zoned neighborhood in Yucca Valley, the case turns on what intensity of use should be tolerated in areas reserved for residential living and whether a residential property owner opposed to his neighbor’s industrial operation can be forced to allow the neighbor to transit vehicles, equipment and materials used in that industrial operation across his land.
Both David Falossi and Fritz Koenig live on Hoot Owl Trail in a rustic area in Yucca Valley, on adjoining parcels. Hoot Owl Trail is a dirt road that winds through the area, which appears to be a typical expanse of desert throughout the Mojave, featuring chaparral, creosote, mesquite and scrub brush and yucca, juniper, and Joshua trees, as well as cacti. Besides the one large home complex on Falossi’s property and a home and separate cabin on Koenig’s parcels, there are four other residential properties along Hoot Owl Trail, all of which are two-and-a-half acres or more. Ingress and egress over Hoot Owl Trail is in dispute where it passes over Koenig’s property, although Koenig lets his neighbors use it as “a neighborly accommodation.”
David Falossi is an accomplished artist and sculptor who works in many media, including stone, metal and other large heavy objects intended as outdoor venue decorations and art pieces. He works from his home studio located on Hoot Owl Trail. Falossi initiated legal action against Koenig in June 2005, seeking a civil restraining order, but withdrew it within a week. In January 2009, Falossi filed another lawsuit against Koenig, asserting that Koenig had harassed him, his wife and his seven children. The outcome of that suit included an order from Judge J. David Mazurek enjoining Koenig from blocking Falossi from coming across Koenig’s property. In January 2013, Falossi again filed suit, this time against Koenig and another Hoot Owl Trail resident, Nora Fraser, further seeking to obtain the permanent right to transit over the portions of Hoot Owl Trail which stretch across Koenig’s and Fraser’s properties. In particular, Falossi wants to prevent both Koenig and Fraser from keeping his forklift or loaded or unloaded ten-ton transport truck from traversing their land.
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.
Koenig has taken issue with 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 in excess of ten thousand pounds, to and from his home studio.
The contretemps between Falossi and Koenig has emanated beyond Hoot Owl Trail into other neighborhoods in Yucca Valley, and the eventual outcome of the trial carries with it the possibility of impacting the tenor and quality of life in not just one but all of Yucca Valley’s residential districts.
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 one former Yucca Valley mayor/former state assemblyman, Congressman Paul Cook; another former Yucca Valley mayor, Assemblyman Chad Mayes; as well as recently departed planning commission chairman Tim Humpreville.
Last year, the planning commission and town council moved to liberalize the town’s 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 previously out of compliance with the town code to one that was deemed by the town permissible under the new standards, at least by some interpretations. 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.
Falossi’s case against Koenig and Koenig’s case against Falossi is being heard by Judge David Cohn. Cohn is conducting both cases as a bench trial in which no jury has been impaneled. Instead of a jury, it is Cohn who will render the verdict in the matter.
After opening statements, it was the legal team for Falossi which first began to put on its case. The progress of the case has been somewhat disjointed, as Cohn has summoned all three parties and their attorneys into his chambers for exchanges that are not open to the public.
One of the first witnesses called was Marissa Corson, Falossi’s eldest daughter who works in the real estate industry in Palm Springs. She testified that she had called Koenig’s real estate agent about another property Koenig had purchased in a Palm Springs neighborhood which is proximate to a residential property occupied by an artist who works, like Falossi, in creating large objects of art and has placed industrial sculptures in his backyard. The intended upshot of her testimony, while not entirely clear, seemed to suggest that Koenig was either a) inconsistent in that he had not objected to living near an industrial sculptor in Palms Springs but had done so in Yucca Valley, or b) is at some level enamored of, perhaps even obsessed with, industrial sculpturing operations.
The major portion of the case being put on by Falossi’s team this week consisted of Falossi’s testimony on the witness stand, as his attorney, Michael Kruppe elicited from him a description of how he uses Hoot Owl Trail and that he had never been restricted from using it prior to the difficulty he has experienced with Koenig.
Falossi further testified that trash trucks transit the road regularly and that he had also seen hay trucks, dump trucks and delivery trucks on Hoot Owl Trail. In this way, Kruppe appeared to be reiterating the theme of inconsistency in Koenig’s toleration of onerous activities near or on his property, setting up an argument that he was selectively objecting to Falossi’s presence and activities out of personal animus rather than over any inherent nuisance or threat to health, safety or tranquility inherent in Falossi’s activities. Koenig, however, objected to the question and answers on relevancy grounds, essentially establishing that refuse trucks, vehicles and equipment used to maintain the road or properties, and trucks used to deliver household items such as furniture or appliances and hay for animals boarded on equestrian residential properties support activities in keeping with the residential nature of the property and did not support industrial operations. Cohn sustained his objections.
Falossi’s legal team filed a motion seeking sanctions against Koenig for his having provided the Yucca Valley Town Council with discovery materials from the case. Falossi’s attorneys assert Koenig’s action was in defiance of a protective order issued by Cohn last year preventing the discovery materials from being disseminated or disclosed. The language of the protective order, a copy of which was obtained by the Sentinel, spells out an exception, specifically “This protective order shall not apply to material reasonably necessary for presentation to any federal, state, or local governmental or regulatory agencies.” The Falossi legal team’s motion, which appears to have matured into a motion for contempt of court, charges Koenig with “misuse of the discovery process,” implying that the provision of the discovery material to the town council did not qualify as “reasonable.”
The larger strategic purpose for the motion was not immediately apparent, although it asks for the court to “require plaintiff [Koenig] to withdraw his submission of the deposition transcripts to the town. Time is of the essence.” Previously in the motion, its wording referenced the “town council.” Nevertheless, the concern expressed in the motion pertains to the town “counsel,” a homonym council, a different word with a different meaning altogether, which actually refers to the town’s municipal attorney.
It is not established at this point why Falossi and his legal team would not want the Yucca Valley Town Council or the town attorney to review the discovery materials in the Koenig vs. Falossi case. What is known is that two weeks ago the Yucca Valley Town Council voted to repeal a 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. At that meeting, the town council gave what is called “first reading” to the ordinance incorporating the change. For those changes to go into effect, the council must give the ordinance a “second reading,” i.e., vote once more to approve the ordinance.
Contained in the motion for a contempt citation was a call for Koenig to “withdraw” the discovery materials he had presented to the town. The Falossi legal team’s sense of urgency in seeking the contempt citation/sanctions against Koenig, containing as it does the demand for the withdrawal of these documents, might thus be explicated as an effort to keep any information contained in the discovery materials away from the town council out of the perception that it might dissuade the town council from confirming passage of the ordinance exempting home-based art studios from regulations normally applied to home-based businesses operations in Yucca Valley. Moreover, there may be some information in the discovery material that might have some legal implication recognizable to the town’s municipal attorney that would convince her to advise the council to rescind the ordinance. Cohn set a hearing on the contempt/sanction motion for July 23.
It is anticipated that Falossi’s attorneys will call Koenig to the witness stand as early as next week, at which time they will test his contention that Falossi has operated, and continues to operate, an illegal industrial use that is incompatible with the surrounding environs, and further test Koenig’s implied right to refuse to allow his property to be used as a conveyance for the equipment and materials used in such operations.
Ultimately, Judge Cohn’s final ruling in the case will have a potential bearing on the character and nature of all of Yucca Valley’s residential neighborhoods. If he vindicates David Falossi, Yucca Valley may become a Mecca for industrialists and artisans who will be free to establish home-based workshops and foundries. If, rather, he rules in favor of Koenig, he will arm those intent on applying urban zoning standards which are devoted to keeping residential and industrial functions separated a definitive legal basis to apply such standards in the desert town and rescind the liberalized standards relating to home based businesses the town council put into place over the last 12 months.

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