City of San Bernardino’s officials are coalescing behind City Manager Terry Ledoux’s game plan to allow a county welfare building to progress to completion, occupation and operation at the periphery of the Muscupiabe residential district over a cacophony of protest.
Calculating that the anger of residents in the Muscupiabe District have over the unwanted project in their midst will not translate into a willingness to expend enough money to wage an extended legal battle contesting the project’s approval, city officials have resolved to support the well-heeled developer of the project and his prospective tenant, the County of San Bernardino, in seeing the project through to completion.
City officials believe they can weather the concerted opposition to the project and stand by the much maligned secretive approval given to the project last year, while sidestepping escalating calls that the county first be required to obtain a conditional use permit before the building can be occupied by its transitional assistance department.
Simultaneously, Ledoux is angling to use a threat of legal action by the building’s developer, Scott Beard, as a pretext to prevent opponents of the project from obtaining internal communications among various city officials and Beard that demonstrate the degree to which the city violated its own protocols in arranging to have the project application analyzed and considered not by the city’s planning commission but rather by a more obscure collection of city officials.
In December 2017, the San Bernardino County Board of Supervisors approved a recommendation from the county’s director of real estate services, Terry Thompson, and the director of the county’s transitional services department, Gilbert Ramos, that the county enter into a $14,036,184 lease agreement with 27th Street TAD, LLC, for approximately 38,150 square feet of office space to be located at the northwest corner of 27th Street and Little Mountain Drive site for occupancy by the transitional assistance department for the ten-year period beginning August 1, 2019 and running through July 31, 2029.
The county’s commitment to that arrangement, however, came prior to the City of San Bernardino, the jurisdiction in which the building was to be constructed, signing off on the project. That cart had been placed before that particular horse in large measure because 27th Street TAD, LLC is a company owned and controlled by Scott Beard. Scott Beard is the scion of Gerald Beard, a politically well-connected real estate mogul who made his first fortune with the manufacturing of Doughboy Pools before enlarging his wealth as a land speculator and developer. Gerald Beard’s son is no less less politically well-connected than his father and is indeed even more so. For the generation he has been involved in the development and the stewardship of properties he has developed or acquired and leased to deep-pocketed occupants, including governmental entities, Beard has cultivated connections among public officialdom by generous political donations to elected officials.
Beard was particularly well wired in with then-San Bernardino Mayor Carey Davis, and it was assumed by county officials that Beard would have no difficulty getting an entitlement to build the 38,150-square foot facility.
The historic and quaint Muscupiabe neighborhood on the city’s northwest side is among some of San Bernardino’s strongest and most impressive residential sections. Its entryway features large pepper trees and medium size homes, some of impressive architectural character.
The transitional assistance department, which is sometimes referred to by its acronym TAD, provides a wide array of federal and state-mandated social services and income assistance programs to the residents of San Bernardino County, particularly those whose loss of jobs or income has put them at risk of becoming, or has rendered them, homeless. In common parlance, what was being planned at the northwest corner of 27th Street and Little Mountain Drive was a welfare office.    Such a use of the property, it was understood at City Hall, was very likely out of keeping with the expectations of a significant portion of those living in the Muscupiabe district. Recognizing that this put Beard on a collision course with that neighborhood sentiment which would create a firestorm of controversy and severe protest when the project came up for public review in the venue typically used for just such project approvals – the open forum of a planning commission hearing – city staff rerouted consideration away from the planning commission and instead placed it before the city’s development and environmental review committee, consisting of various members of city staff, primarily department heads and those from the community and economic development department.
Though the lion’s share of city committee and commission meetings, just as city council meetings, are videotaped and televised, the timing of the meetings is a crucial consideration. Whereas planning commission meetings are typically held on Tuesdays at 6 p.m., development and environmental review committee meetings are held on Wednesday mornings at 10 a.m., a time when employed adults are generally unable to attend because of their work commitments. Thus, the consideration of the TAD building at 27th Street and Little Mountain Drive was undertaken in a relatively obscure forum.
Moreover, there were other anomalies about how the project was presented and vetted, which lowered its profile and reduced the likelihood that those in the Muscupiabe neighborhood would take stock of what was coming their way.
One of those was the mislabeling of the project. While at the county no bones were made about what the project was – a building to house an office of the transitional assistance department, a division of the county’s human services department – at the city level, an architect’s inaccurate description line on a rendering for the building in which “resources” was substituted for “services” in the heading human services was adopted as a general description of the building along with the use of the acronym for transitional assistance department – TAD. For virtually everyone who was unfamiliar with the acronym, this changed the implication to suggest that the building was intended to house the county’s human resources or personnel department.
A second misnomer was applied to the project. In internal memos to the city council relating to Beard’s proposal as well as in the disclosure notifications to the residents living in proximity to the project, the structure to be built was referred to in planning profession jargon as one which would feature “office professional” uses, or as a “professional office” building. Those terms carry a different connotation than the designation “commercial office,” which more accurately fits the actual 27th Street TAD, LLC project. A professional office refers to a workplace where employees of a company work in a clerical and corporate environment, functioning separately in cubicles or at desks or interacting with one another or both but essentially with little or no contact with the company’s clients and customers on site. This use generally involves a less substantial flow of traffic into and out from the site. In a commercial office, in addition to housing the employees of the businesses located at that location, those venues involve a daily or constant influx of customers to those businesses, entailing a much more substantial number of people and vehicles into, on and departing from the site on a constant basis during normal business hours. It thus appears that the city’s representation of the 27th Street TAD, LLC project obscured not only that the building upon completion would be a welfare office but that there would be a substantial amount of traffic into and through the area around the project in terms of people and cars coming onto and leaving the site.
2018 was an election year. Prior to the election being held, in October, the move toward having the development and environmental review committee pass judgment on the project at 27th Street and Little Mountain Drive was set. On November 6, incumbent Mayor Carey Davis was defeated by challenger John Valdivia, who since 2012 had been the city’s Third Ward Councilman. The election had an implication for the project proposal, as Beard was not only one of Davis’s primary backers in terms of political contributions, but his de facto campaign manager.
Thus, Beard, it turned out, had bet on the wrong political horse. Though the election was over November 6 and the outcome in the race clear by the morning of November 7, there was yet a six-week lag until those victorious in the November 6 race would be sworn in and installed in office on December 19. For that duration, Carey Davis would remain as mayor, a lame duck, but nevertheless yet the mayor and capable of exercising the full measure of political power in that capacity.
There ensued a mad rush to have Beard’s project fully approved, while City Hall was yet under the sway of Carey Davis. Thus it was that just eight days after the election, on November 14, 2018, the project at 27th Street and Little Mountain Drive was taken up by the environmental and design review committee during a hearing in which the project was identified on the agenda as “an office building” and the zoning on the site as “commercial office.” The agenda further minimized the impression that the project would have a substantive impact on the area by saying it was “categorically exempt” from the requirement that an environmental impact report relating to the project be provided.
With no residents present to inveigh against the project, Beard’s request that he be given entitlement to build it came off without a hitch.
It was not until after Beard’s contractors fenced off the site and began grading there earlier this summer that the residents of the neighborhood took notice of f what was happening. A few made inquiries, learning that a welfare office was going to go into the neighborhood.
27th Street and Little Mountain Drive lies at the confluence of the city’s 2nd, 5th and 7th Wards, represented by council members Sandra Ibarra, Henry Nickel and Bessine Richard, respectively.
By early August, the Muscupiabe neighborhood was awakened and up in arms. Ibarra, in whose Second District the project is located, and Nickel, whose Fifth District borders the project site, took up the cause for the area’s residents, vectoring attention to what had occurred in November, and advocating that the city apply some remedy to the situation. At the August 7 city council meeting, after they insisted that the burgeoning crisis come up for discussion, former City Attorney James Penman advised the city “preserve the status quo and freeze the situation …  by issuing a stop work order.” Penman told the council it should “stop and freeze everything in order that you can do a proper investigation to determine what happened. If you don’t issue the stop work order, the developer continues to build and acquires vested rights. Later [when] the residents get a writ of mandate and make him stop, he is going to sue the city for allowing him to continue to build and spend money.”
When Ibarra and Nickel sought to usher the council toward doing just as Penman was advising, taking action before Beard proceeded with actual building activity beyond the grading he had done up to that point, they encountered resistance from the remainder of their council colleagues. Deputy City Attorney Sonia Carvalho advised against imposing a stop work order on Beard after the city had given him approval to proceed with the construction of the building, telling the council the city could in the alternative seek to require that Beard’s intended tenant – the county – obtain a conditional use permit to operate a human services office at that location. The council receded from any direct action at that point, instead voting to have City Manager Teri Ledoux and city staff proceed with an  investigation into the situation Ledoux said she had already initiated, and report its findings back to the city council on August 14.
By August 14, however, Beard was threatening to sue the city if it took any action whatsoever – against him, his company, or the county – that would interfere with the completion of the project. In an auger of things to come, Ledoux refused to release the investigation she had undertaken, claiming it involved confidential information that would be improper to release while the prospect of legal action by Beard yet hung over the city. Muscupiabe District residents, who had earlier been led to believe the investigation’s results would be forthcoming and that the answers to the questions they were promised would be provided grew more disconcerted than previously. One of those, Kathy Mallon, who lives in the Blair Park Neighborhood immediately adjacent to the Muscupiabe District, submitted, on August 17, a request made under the California Public Records Act that the city produce information, documents and data that many people previously assumed would have been forthcoming with Ledoux’s so-called investigation.
Referencing “APN 0148-021-66, Northwest corner of Little Mountain Dr and W 27th St.,” Mallon wrote, “Please provide all permit application documents filed by 27th Street TAD and ATC Design Group” and “Please provide all staff reports used in support of the D/ERC [Design and Environmental Review Committee] evaluation” and “All email communications between staff and city administrators either internal or with the applicant/property owner. List below of known city staff and administrators to include but not limited to: R Carey Davis, Benito Barrios, Andrea Miller, Teri Ledoux, Jeff Bloom, Oliver Mujica, Brian Gumpert, Gary Akers, Hernando Cotangco, Robert Sepulveda, Robert Linberg, James Lane, Gracie Johnson, Stephanie Sanchez.”
Benito Barrios was the Second Ward Councilman in 2018. Jeff Bloom was the city’s acting community development director in 2018. Mujica was and is San Bernardino’s planning division manager. Gumport is with the city’s building and safety division. Akers is with the city’s land development division. Sepulveda is with the city’s public works engineering division. Lane is with the city’s environmental control division. Johnson is the city’s integrated waste division representative. Sanchez is the commission’s secretary. Miller was then the city manager.
Mallon sent her public records request via email directly to City Clerk Gigi Hanna, with electronic carbon copies to Ledoux, Nickel, Mayor John Valdivia and Ibarra.
In the four weeks since, the city has utilized a series of stalling and delaying tactics to avoid having to turn over the communications Mallon requested.
This week, city officials indicated Mallon will at last be provided with the materials she requested on September 17, a full month after her request was made. Word now comes, however, that officials will renege on that commitment again. The Sentinel is informed that Ledoux will assert a categorical exemption to having to supply the emails, texts, memos, and instant messages on the basis that doing so would harm the city’s legal position if Beard, as he has threatened, files suit against the city.
According to one well-placed city official, “There are memos and communication about this. The law allows the city to withhold information connected to pending or existing litigation and Beard has publicly stated that he will sue over this and I believe it has been discussed in closed session. In Public Records Act requests like this, it is Best Best & Krieger [the law firm the City of San Bernardino contracts with to serve as its city attorney] that reviews the request and determines what to release.”
The calculation city management is making is that it has more to fear from Beard than it does from the irate citizenry in the Muscupiabe District. Five-sevenths of the current city council – First District Councilman Ted Sanchez, Third District Councilman Juan Figueroa, Fourth District Councilman Fred Shorett, Sixth District Councilman Jim Mulvihill and Seventh District Councilwoman Bessine Richard do not represent constituents directly impacted by the project and therefore will encounter no untoward consequences for allowing Beard and the project to proceed. As members of a seven-person decision-making panel, Ibarra and Nickel have insufficient political muscle to force any action with regard to the project, such as instituting a requirement that before the county occupies the building with the transitional assistance department that it first obtain a conditional use permit, through which process conditions on that occupancy could be mandated that might mitigate the impacts upon the Muscupiabe neighborhood.
The Sentinel is reliably informed that Ledoux, in addition to withholding the communications Mallon requested from Mallon, is preventing the documents from being released to either Ibarra or Nickel.
Of interest and consequence in all of this is Mayor John Valdivia’s stance with regard to the project. Ostensibly, Valdivia carries no brief, and has no love lost, for Beard, who after all was the single strongest electioneering force on behalf of his opponent in last year’s election. The residents of the Muscupiabe District, those who were shortchanged by his rival, would seem to be his natural constituency, a group for whom he could now go to bat and whose support forever after would then presumably be his. Inexplicably, however, Valdivia has not embraced the Muscupiabe District’s cause. He spurned both the Muscupiabe Neighborhood Association and the nearby Blair Park Neighborhood Association early last month when they invited him to a forum at which their grievances were to be articulated to county officials including Supervisor Josie Gonzales, San Bernardino County Real Estate Department Director Terry Thompson and San Bernardino County Transitional Services Director Gilbert Ramos as well as Ledoux and current San Bernardino Community & Economic Development Director Michael Huntley, along with Beard himself. Valdivia has continued to hold the residents of the Muscupiabe District at arm’s length. Instead, he has sided with Ledoux, whose strategy appears to maintain the rectitude of the city’s action in approving the project in November and simply stonewalling and outlasting the resistance the Muscupiabe District residents are putting up. Ledoux’s calculation is that the members of the Muscupiabe neighborhood will neither collectively nor individually put up the money needed to hire an attorney to challenge the city’s approval process in court. For the residents, this has created a Catch 22-type scenario as applies to the communications Mallon has requested. It is widely assumed among those opposed to the project that somewhere in the communications the city is hiding and refusing to hand over is a smoking gun or perhaps more than one smoking gun, a sentence or paragraph where the desirability of keeping the consideration of the project from taking place in the far more open forum of a planning commission hearing as opposed to the obscure confines of the city’s development and environmental review committee is explicitly stated. Considering the way in which Ledoux is intent on keeping those communications under wraps, several people have come to believe that what she is attempting to keep from surfacing is a direct order from top echelon city official to someone in the city’s community development division to not have the planning commission review the project. Ledoux’s reluctance to allow open access to the communications among Beard, the former mayor, the former city manager and top city planning officials is a strong indication, several people have openly indicated, that some San Bernardino city official or officials in 2018 pulled strings to prevent the proposal for a welfare office now scheduled to be placed into the Muscupiabe residential district from being considered and vetted properly in an an open process commensurate with the serious impact the project will have on its immediate environs.
Were the residents of the Muscupiabe District to obtain such a piece of evidence, any legal challenge of the project approval they pursued would almost certainly succeed.
For that reason, Mallon and other Musciabe District residents find it particularly galling that Ledoux is using a threat of legal action against the city by Beard, whom they suspect of colluding with the city against their interests, to prevent them from obtaining evidence of that collusion so they can marshal proof that they are at the very least owed a chance to have the project reconsidered in an open forum where all of the impacts of the project are given a complete and unvarnished airing before they are consigned to coexist with what they consider to be a development that is incompatible with the present ambiance of their neighborhood.
At this point, the ball is now in the court of the residents of the Muscupiabe District, who face the option of accepting the city-dictated inertia of letting the project run its course through to completion or employing an attorney to legally contest the city’s approval process.
-Mark Gutglueck