Upland municipal employees falsified and hid documentation and data indicating a portion of the site for the Villa Serena project was off limits to development pursuant to a covenant with the State of California, documents obtained by the Sentinel show.
Villa Serena is a proposal by Frontier Homes to construct a 65-residential unit subdivision on 9.2 acres of a now-dormant flood control basin lying between 15th Street and 16th Street, roughly a quarter of a mile east of Campus Avenue in the northeastern quadrant of Upland, a neighborhood often referred to as Foothill Knolls.
Discrepancies between the city’s arrangement with a local developer and its agreement with the California Department of Fish & Wildlife raise the possibility, indeed the likelihood, that the project approval given by the city council in April 2020 will be rendered null and void.
Events extending back more than two decades resulted in 7.1 acres in the city’s northeastern quadrant upon which a portion of the Villa Serena Project is now proposed to be located being set aside as wetlands at the insistence of the California Department of Fish & Wildlife, formerly known as the Department of Fish & Game, in accordance with a 25-point “streambed alteration agreement” the City of Upland entered into with the state. The property in question is intended to serve as habitat for a multitude of species indigenous to the area.
The passage of time and the changeover in city personnel resulted in the restrictions contained in the city’s pact with the state being forgotten or ignored at several crucial points when the city took action relating to the basin property. It is now becoming clear how the city’s contradictory actions and decisions have created complications that will require extraordinary patience and resourcefulness to resolve.
On April 13, 2020, during a teleconferenced meeting in which the public participated remotely and electronically rather than in a physical forum, the Upland City Council voted 4-to-1 to give Frontier Homes an entitlement to construct 65 single family detached residential units on 9.2-acres owned by the Colonies Partners within the footprint of the defunct flood control detention basin north of 15th Street.
During the course of that meeting, Development Services Director Robert Dalquest withheld from the city council that the property was encumbered by 21-year-old agreement with the California Department of Fish & Wildlife preserving as wetlands a significant portion of the acreage Frontier Homes proposed developing. Not having been told that the land was preserved as habitat for wildlife, four of the council members approved the project.
Subsequently, a group of residents within the Foothill Knolls area and others intent on keeping the wetlands preserved intact sued the city to overturn the approval of the controversial project.
In the area north of 15th Street and south of 16th Street, well east of Campus Avenue, four parcels had been converted in 1939 into a 32-acre percolation basin as an augmentation to a then-existing stormwater control system. In addition to allowing for the settling of water at that spot into the water table, the 15th Street basin was also intended to intercept storm water runoff from 583 acres of surrounding land. It was capable of holding more than 50.4 million gallons of water.
In 1969, the dyke/embankment creating the basin, which had been compromised by the burrowing of gophers and squirrels, nearly failed during an intensive set of deluges, and the Foothill Knolls neighborhood was evacuated.
In 1991, Upland obtained title to the basin.
In the 1950s, what had once been a gravel pit east of Campus and above 14th Street, west and south of the basin, was converted into a landfill. In the early 1980s, that landfill was shuttered. Contaminants at the site festered below the surface, including pockets of methane gas, which was burned off at various venting spots scattered about the site.
Because water seeping through the landfill below ground migrated into the water in the basin, and because the basin was a source of water into the aquifer below Upland, the Santa Ana Regional Water Quality Control Board ordered Upland to stop impounding and percolating water into the water table near the landfill to prevent the migration of contaminants into water wells drawing from the water table. This order required the City of Upland to reduce the size of the basin between 15th Street and 16th Street by filling in its westernmost 12 acres.
The California Department of Fish and Game, exercising its authority, called upon the city to protect the fish and wildlife that could be adversely impacted by the regrading of the earthen-bottomed basin. Ultimately, in 1999, the Department of Fish and Game entered into a streambed alteration agreement with the City of Upland in accordance with Fish and Game Code section 1600, et sequitur. Contained within that pact was language stating, “There shall be no loss of wetland habitat and function. Impacts to wetland habitat shall be mitigated at a 1.5 to 1 ratio by management of the basin to allow for retention of wetland habitat at the eastern sector, which grows as a result of flow and [percolation] in the basin.” The agreement mandated that Upland provide annual reports until 2006 on the maintenance of the replacement wetlands. Upland had reestablished the wetlands, with the goal of preserving wildlife habitat, in December 2000.
Beginning in 1999, a consortium of investors and developers known as the Colonies Partners, led by managing principals Dan Richards and Jeff Burum, began in earnest an effort to develop the Colonies at San Antonio residential and the Colonies Crossroads commercial subdivisions on property in northeastern Upland previously owned by the San Antonio Water Company that had long been deemed undevelopable. Those projects were rendered achievable by the California Department of Transportation’s extension of the 210 Freeway across the northern portion of the city, which further involved the San Bernardino County Flood Control District and the Army Corps of Engineers completing elements of regional flood control projects that were augmented with the Colonies Partners’ construction of storm drain and sewer facilities. Some of the infrastructure the Colonies Partners was to complete for its residential and commercial subdivisions was ultimately dedicated to the city and those improvements increased the capacities of streets, storm water drainage facilities and sewers in some areas within the Upland City Limits outside the specific plan area for the Colonies Partners’ undertaking. Accordingly, on September 24, 2002, the city council approved a development agreement with the Colonies Partners allowing the development of the Colonies at San Antonio Project to proceed. A section of that agreement entailed the city paying the Colonies Partners $5 million as the city’s fair share cost toward the infrastructure the Colonies Partners was undertaking to build in conjunction with its projects. Included in that section of the agreement was that 20.3 acres near 15th Street would be utilized as a flood water basin. The cash-strapped city was not in a position to pay the Colonies Partners a full five million dollars at that time. On December 22, 2003, the city council voted to modify the city’s agreement with the Colonies Partners by paying Richards’ and Burum’s company $1.5 million, and granting Burum and Richards a ten-year first right of refusal to explore possible uses for a portion of the reduced basin footprint, and agreeing that upon such a mutually satisfactory project being identified, the city would transfer title to that portion to the Colonies Partners for one dollar, the Colonies Partners would forgive the city’s remaining $3.5 million debt, and processing of the Colonies Partners’ project proposal would be expedited, and the remainder of the basin property/wetlands preserve would be dedicated to public use.
In 2013, the Colonies Partners had not yet exercised its right toward developing the basin property, which in any event was complicated by the requirement that a good part of it be maintained as wetlands wildlife habitat. The city council detailed then-Assistant City Attorney Kimberly Hall-Barlow to write a letter to the Colonies Partners to note the lack of progress with regard to the development of the property and gently prod it toward action by the January 21, 2014 expiration date of decade-long term in which the Colonies Partners had to make use of the property. Hall-Barlow, however, defied the city council’s instructions on the letter’s tenor, instead penning a much more aggressive missive to the Colonies Partners that might serve as the groundwork for triggering the reversionary clause in the December 2003 revamping of the September 2003 agreement, such that the city would retain the 9.2 acres in question. The council, however, unwilling to confront the Colonies Partners, conveyed to then-City Attorney Richard Adams its displeasure with Hall-Barlow’s effort. Adams conferred with other members of his firm, Jones & Mayer. Hall-Barlow was thereafter eased out of her position as assistant city attorney by Jones & Mayer and moved into the position of city attorney with the City of West Covina, where Jones & Mayer also had a contract to provide legal services.
Though the 10-year term in which the the Colonies Partners was to develop the property expired on January 21, 2014, more than a year later, on February 9, 2015, the Upland City Council voted to approve a second amendment to the agreement allowing an additional three years for the Colonies Partners to identify and initiate a project on a portion of the basin.
In June 2017, Rosemary Hoerning, then Upland’s city engineer, accepted a drainage study relating to the basin that the Colonies Partners had the engineering firm Madole & Associates prepare. Madole & Associates concluded that only 11.1 acres of the basin’s 20.3 acres were needed for future flood control purposes, based on the assumption that previous construction of an additional stormwater retention basin upstream and the Army Corps of Engineers’ construction of a concrete drainage channel along the eastern edge of the Colonies at San Antonio project would adequately handle stormwater flows. That document, however, did not deal with the issue of having to maintain a significant portion of the basin footprint as wetlands. Based on the Madole & Associates study, the City of Upland, by a quitclaim deed, transferred 9.2 acres of the western portion of the basin to the Colonies Partners.
Subsequently, the Colonies Partners made an arrangement with Frontier Homes, headed by a personal friend of Jeff Burum, James Previti, to undertake the development of the 9.2 acres. It is not clear whether the Colonies Partners understood the limitations imposed on the development of the property as a consequence of the City of Upland’s pact with the Department of Fish and Wildlife with regard to maintaining the property as wetlands. Nor is it known whether Burum and the Colonies Partners informed Previti and Frontier Homes about the limitations on development at the site.
In 2018 Frontier Homes learned through its consultant, Q3, that reconfiguring the remaining eastern portion of the basin would alter the facility in such way that unless the capacity of the basin was reduced from its current 50.428 million gallons of water to below 16.29 million gallons, it would be subject to the jurisdiction of California’s State Division of Safety of Dams. Without that reduction in holding capacity, that state agency would not sign off on the project without significant upgrades to the remaining basin, including doing excavation so the foundation of the basin embankment could be established on bedrock and its spillway enlarged, a technically challenging and prohibitively costly undertaking. There ensued a manipulation of paperwork to indicate the holding capacity of the basin had dropped to below 16.29 million gallons, which Hoerning, as city engineer, knew to be untrue as to physical fact.
On July 26, 2018, Frontier Homes applied for a general plan amendment and zone change, site plan and design review and tentative tract map for the 65-dwelling unit Villa Serena project on the 9.2 acres the Colonies Partners had obtained from the city. In an effort to facilitate the project and reduce the developer’s costs, city staff set about processing the applications, opting to approach the project in such a way that Frontier Homes would not need to carry out a comprehensive environmental impact report on the project and that a less exacting means of environmental certification would take place, that being a declaration by the city council that there would be no untoward environmental impacts from the project, known as a mitigated negative declaration.
In May 2019, Hoerning was installed as the city’s acting city manager following the forced departure of her predecessor, City Manager Jeannette Vagnozzi.
In October 2019, the city released for public review the initial study/mitigated negative declaration for the project that had been prepared by its environmental consultant, LSA Associates. Curiously, even though LSA had previously conducted for the city a biological assessment of the basin that was forwarded to the California Department of Fish & Wildlife and which implicitly recognized that a portion of the basin was off limits to development as a protected habitat for several species such that “a total of 7.1 acres of wetlands over the remaining 20-acres of [the] basin” was to be preserved, the initial study/mitigated negative declaration’s biological resources section concluded the project would have “no impact” on “any riparian habitat” or “protected wetlands.”
Among 15 comments the city received on the initial study/mitigated negative declaration was one from Bill Rodstrom, a former U.S. Fish and Wildlife Service biologist well acquainted with the project site, which noted his sighting or knowledge of threatened species on the property in question. The city staff’s processing of the project documents was delayed as a result of the public comments, an indication city staff was fully aware of the situation. There was further evidence that Q3 recognized the project was slated to take place on property deemed undevelopable.
On December 11, 2019, the Upland Planning Commission considered the Villa Serena project and extended those hearings until January 22, 2020 because of the volume of citizen input, which included 17 residents expressing opposition to the project. At the January 22, 2020 meeting, another 27 residents weighed in against the project. A commission vote to recommend that the city council approve the initial study/mitigated negative declaration failed on a 2-to-3 vote. A motion to recommend that the city council reject the initial study/mitigated negative declaration was thereafter adopted on a 3-to-2 vote.
After the city council’s consideration of the Villa Serena project was postponed from March 23, 2020, it was rescheduled to take place on April 13, 2020.
On April 12, 2020, the day before the meeting, Councilwoman Janice Elliott sent an email to Hoerning, who by that point had been elevated to the position of full-fledged city manager, and Development Services Director, Robert Dalquest. Elliott asked both, “What, if any, correspondence was written to or received from California Department of Fish & Wildlife pursuant to the California Environmental Quality Act guidelines regarding the mitigated negative declaration?” and “If the California Department of Fish & Wildlife was not notified, why weren’t they notified?”
The day of the meeting, at 11:43 a.m., Dalquest responded to Elliott’s email, stating that the city’s decision not to notify the California Department of Fish & Wildlife about the project was based on the 2018 Biological Resources Assessment that Frontier Homes submitted to the city as part of its project application.
“As part of the California Environmental Quality Act process in preparing the initial study, a biological assessment was prepared, and the biological consultant, RCA Associates, reviewed and evaluated the data sources from the California Department of Fish and Wildlife and U.S. Fish and Wildlife Service (National Diversity Data Base),” Dalquest wrote with regard to Elliot’s first question regarding correspondence with the California Department of Fish & Game. “Based on RCA’s assessment, no sensitive biological resources (sensitive species and critical habitat) have been documented in the immediate area according to the data resources by these agencies. Also, on-site biological surveys were performed and in the surrounding areas for the presence of native habitats which may support populations of sensitive wildlife species. The property and adjoining area were also evaluated for the presence of sensitive habitats associated with wetlands, vernal pools, riparian habitats, and jurisdictional areas. The conclusion was that the site presently contains primarily buckwheat shrubland community, and that only common wildlife to urban areas was observed. The surveys also included the presence of the burrowing owl and suitable habitat to support the burrowing owl. Both were not present. Only the standard mitigation for the burrowing owl and nesting birds was necessary.”
To Elliott’s second question, Dalquest responded, “Based on the biological assessment detailed above, it was not necessary for the California Environmental Quality Act analysis of this project to notify CA Department of Fish & Wildlife and US Department of Fish & Wildlife.”
At 2:08 p.m., on April 13, 2020, a little less than five hours before the meeting was set to get under way at 7 p.m., Hoerning, somewhat belatedly, emailed a copy of the city’s 1999 streambed alteration agreement with California Department of Fish & Wildlife as well as LSA’s 2006 report for the city on status of the reestablished wetlands on the basin footprint to Dalquest. Twenty-five minutes later, at 2:33 p.m., Dalquest forwarded the same documents to the city’s associate planner, Joshua Winter, requesting that he forward them “to LSA and ask them if this has any bearing on the biological assessment that was done for the project. Should we have contacted the California Department of Fish & Wildlife?”
Five minutes later, at 2:38 p.m., Winter forwarded them to LSA saying, “please take a look at the attached documentation. Does this have any bearing on the bio assessment for the project? Should we have sent this to Fish and Game?”
Two minutes later, at 2:40 p.m., LSA’s project manager, Carl Winter, who is no blood relation to Joshua Winter, responded, “I have not seen these documents today and am basing my response on a quick read of what you have provided. From these documents, it appears the basin has previously been reduced in size and mitigation for those impacts established. The current biological resources assessment did not address previous basin activities, identify impacts to jurisdictional areas and did not provide recommendations for jurisdictional impacts. I am not sure if the information you just provided was available to the applicant, the project biologist or the project team. If the basin is subject to a binding streambed alternation agreement, the current biological assessment would have benefited from including this information. The initial study/mitigated negative declaration could have incorporated this information appropriately. It appears, due to this ‘new’ or newly identified information of past activity in the basin and the agreement, there is sufficient cause to have warranted distribution to the California Department of Fish & Wildlife during public review. Having not done so, this is a potential avenue of challenge to any city council decision made tonight.”
Twenty minutes later, Carl Winter informed Joshua Winter that, “If the applicant can provide evidence that the planned basin modifications are outside the limits of the area covered under the earlier streambed alteration agreement, you may be in better shape. I don’t have access to that data.”
At 4:23 p.m., Dalquest emailed Tim Nguyen, Frontier Homes’ representative, asking, “Can you give me a call as soon as possible” and forwarding LSA’s prior email noting that the failure to distribute the initial study/mitigated negative declaration to California Department of Fish and Wildlife was “a potential avenue of challenge to any city council decision made tonight.”
At 5:05 p.m., Dalquest also emailed the California Department of Fish and Wildlife documents to Nguyen.
When the council meeting commenced, Elliot was critical of staff’s failure to notify the California Department of Fish and Wildlife about the project, remarking that she personally observed “an incredible amount of undisturbed native plants” on the project site.
Dalquest, however, made no mention of the documentation that was in staff’s possession nor of Carl Winter’s assessment, made that afternoon, that the streambed alteration agreement with the California Department of Fish & Game had tremendous significance for the project proposal or that the current biological assessment would have benefited from inclusion of the information contained in the 2006 biological assessment done by LSA Associates for the city to show the Department of Fish & Wildlife that it had complied with the 1999 agreement to preserve the basin property as wetlands. Nor did Dalquest mention that the initial study/mitigated negative declaration should have incorporated the information from the 2006 biological assessment and that the plans for the development should have been distributed to the California Department of Fish & Wildlife during the public review of the project. Dalquest further stonewalled Elliott and the city council by not telling her or them that Carl Winter believed that this withholding of information presented fruitful grounds for challenging any approval of the project. Rather, Dalquest told the city council that Frontier Homes’ biological resources assessment validated the city’s decision to not seek California Department of Fish and Wildlife review of the project. A total of 21 people addressed the council telephonically with regard to the Villa Serena proposal, all of whom were in opposition to the project and/or questioned the conclusions of the initial study/mitigated negative declaration, including a speaker who agreed with Councilwoman Elliott “that it was negligent not to notify the Fish & Wildlife Department concerning this.”
After the public had spoken, Frontier Home’s spokesman, Andrew Wennerstrom, stated the basin was “not meant to be habitat” and “needs to function as a basin, not a wildlife habitat” and that “It’s just not true” that the project site qualified as a wetlands. Despite Councilwoman Elliott’s assurance to her colleagues that her own survey of the project site revealed Frontier Homes’ biological resources assessment was “negligent” and that the council should reject it and require an environmental impact report, none of her colleagues seconded her motion to deny the project approval. After her motion failed, a motion to approve the project was made, was seconded and passed 4-to-1 with Elliott dissenting, and Mayor Debbie Stone, and councilmen Bill Velto, Rudy Zuniga and Ricky Felix prevailing.
Thereafter, a band of citizens formed Friends of Upland Wetlands, which sued the city over the project approval, naming Frontier Homes as a real party in interest.
Neither Dalquest nor Hoerning, who has been put on leave from her position as city manager, responded to a request from the Sentinel for comment.
The Sentinel contacted Scott Sommer, the lawyer representing Frontier Homes. Sommer said he did not want to comment on the documents in the Sentinel’s possession, saying a spokesman for Frontier Homes or his law firm would provide a public statement with regard to where the litigation against the city over the project approval stands at present. That statement was not forthcoming by press time.
-Mark Gutglueck