SBVMWD Purchase Near Santa Ana River Headwaters Secures SBC’s H2O Destiny

By Mark Gutglueck
Earlier this month, the Orange County Board of Supervisors accepted the San Bernardino Valley Municipal Water District’s offer of $31.8 million for 1,657-acres surrounding the headwaters of the Santa Ana River at the base of the San Bernardino Mountains in Highland.
That purchase will very likely end a century-long effort by Orange County interests to appropriate rights to water within or originating in San Bernardino County.
The land in question was acquired by the Orange County Flood Control District in 1997 as a site for excavation of soil needed for construction of the Seven Oaks Dam as part of the Santa Ana River Project. Construction of the Seven Oaks Dam took place between 1993 and 1999, with further touch-ups to the facility being completed in 2000.
After the dam was in place, the Orange County Flood Control District, which is a creature of Orange County government, began casting about for purposes to which the adjoining property it had purchased could be put. On January 12, 2010, the Orange County Board of Supervisors approved the selection of Lewis Investment Company, LLC, also known as the Lewis Group of Companies, as the primary developer to assist with the conversion/development of the property into a master-planned community. That agreement called for the Lewis Group of Companies to construct on the property, which lies within the City of Highland at the east end of Greenspot Road, the Harmony residential subdivision, consisting of what was originally proposed as 3,632 homes and what was later uprated to 3,662 homes that were to confine themselves to 658 acres within the total project area, along with a neighborhood commercial center to be contained on another six acres, with an additional 16 acres set aside for neighborhood commercial uses and community public facilities including the construction of a single elementary school and a fire station on a 1.5-acre site. Other infrastructure to accommodate the development would consist of water reservoirs, a water treatment facility, a sewage treatment plant, and a pump station. The vast majority of the remaining 997 acres owned by the Orange County Flood Control District was to remain undeveloped as open space, wetlands, habitat for rare species and and crucial wildlife connectivity corridors for numerous endangered species, the project proponents said.
A draft environmental impact report was circulated among nearby property owners between March 21, 2014 and May 5, 2014, after which a final environmental impact report was completed, including public comments, and made available for public review. On August 11, 2016 the Highland City Council held a meeting that was entirely devoted to considering the Harmony project. Ultimately, the council adopted a statement of overriding considerations, adopted the environmental impact report, amendments to the general plan relating to the project, approved the zone change, adopted the specific plan, approved the development agreement, and approved the subdivision of the property.
Thereafter, a multitude of environmental groups, including the Center for Biological Diversity, the San Bernardino Valley Audubon Society, the Sierra Club, the Crafton Hills Open Space Conservancy, the Tri-County Conservation League and Friends of Riverside Hills, along with the Greenspot Residents Association filed two lawsuits challenging the project approval, alleging the Lewis Operating Company’s environmental impact report for the project accepted by the City of Highland was “inadequate,” and the report’s authors had engaged in faulty analysis of both certain elements and the totality of the project.
The suits were combined and the matter was heard by San Bernardino County Superior Court Judge Don Alvarez as a bench trial, in which he served, with the consent of all parties, as both the judge and the jury.
Judge Alvarez ruled in favor of the plaintiffs in the Center for Biological Diversity/Greenspot Residents Association/Audubon Society suit by determining the city and developer improperly defined the project, and that the environmental impact report was flawed in that it failed to properly analyze or mitigate downstream flooding impacts as well as the potentially deleterious impacts to regional water resources and wildlife habitat. Judge Alvarez found the environmental impact report was flawed by virtue of having left out of the equation the volume of fill required to elevate that portion of the project in a flood zone to a level high enough that the foundations of the structures to be built would be at least one foot above the level of maximum flooding statistically likely to occur every 100 years, together with having failed to reckon the impacts downstream of the grading at the south end of the project.
Judge Alvarez upheld the Sierra Club/Crafton Hills Open Space Conservancy/Tri-County Conservation League/Friends of Riverside Hills in their contention that the project’s environmental review violated the California Environmental Quality Act by not adequately analyzing water resources, wastewater and energy impacts from the development. Judge Alvarez did reject the plaintiffs’ contention that the project was out of compliance with state emission regulations relating to greenhouse gasses. His ruling in total overturned the approval of the project.
Ultimately, the Lewis Group of Companies elected not to persist with a revamped project proposal, and other companies contemplating development of the property, having witnessed the Lewis Group’s failure to obtain project approval, opted out of pursuing acquisition of the land.
Earlier this year, the Orange County Flood Control District solicited bids on the 1,657 acres, specifying an asking price of $25 million. Written sealed bids were due by 2 p.m. on August 30. The invitation elicited an incomplete bid from the Richland Real Estate Fund of $16 million and bids of $25 million each from the Redlands Parks Conservancy and Shopoff Advisors, and a bid of $31,815,000. from the San Bernardino Valley Municipal Water District.
The Orange County Board of Supervisors deemed the offer from the San Bernardino Valley Municipal Water District to be the highest responsive bid and agreed to the sale on October 5, 2021, the same day the San Bernardino Valley Municipal Water District voted to move ahead with the acquisition.
The San Bernardino Valley Municipal Water District taking control of the property is a development of historic import. San Bernardino County has long been considered a rustic backwater by much of the rest of Southern California, in particular wealthy, high-powered, sophisticated and politically connected entities in Los Angeles and Orange counties. Those real estate interests and speculators have engaged in a series of efforts to commandeer San Bernardino County’s water by both legal and illegal means, including the securing of water rights within the heavy watershed and deep aquifer areas at the periphery of the San Bernardino Mountains. Even before the turn of the 19th Century to the 20th Century, efforts were being made by business entities functioning out of Chicago, San Francisco and Los Angeles to divert water originating in San Bernardino County, in particular water flowing into the Mojave and Santa Ana rivers, to use in Los Angeles and Orange counties. The Santa Ana River starts at the south foothills of the San Bernardino Mountains near Highland and then winds generally southwestward through western San Bernardino County into Riverside County and then into Orange County, ultimately to its terminus in a tidal lagoon at the Pacific Ocean between Huntington Beach and Newport Beach. Orange County interests in the early part of the 20th Century sought to prevent upstream use of the water from occurring in quantities that would deprive downstream users of what they claimed was their “fair share” of the river’s water. This was complicated by flooding issues along the river, which ultimately were redressed by the construction of the Prado and Seven Oaks dams.
Escrow on the sale is expected to close by February 2, 2022. San Bernardino Valley Municipal Water District General Manager Heather Dyer and the board for the district are holding off on any further statement to the public until escrow has closed.
While the Orange County Water District property the San Bernardino Valley Municipal Water District just bought had no water rights attached to it, the adjacent Seven Oaks Dam has a 115,000 acre-foot holding capacity in its reservoir. That reservoir is at present authorized to provide “incidental water conservation,” but is not recognized as a source of water for domestic use. The San Bernardino Valley Municipal Water District earlier this year sought $2.5 million in federal funds to cover half of the cost of carrying out a feasibility study to examine if dam operations can be shifted from the current purpose of providing flood control so that at least some of the water in it can be used for aquifer recharge to augment the local water supply. The study would seek to determine if and upon what terms environmental permits could be obtained so the Seven Oaks Dam can provide both flood control and water for eventual human consumption.
“By strategically releasing the water, operations of the dam could augment our local groundwater supply while also protecting water quality, and protecting or even enhancing downstream habitat for several key species,” Dyer told the Highland Community News in April.
In 2000, the California Regional Water Quality Control Board entered a decision, known by the nomenclature 1649, which concluded that up to 198,317 acre feet of water are available for direct diversion, surface storage and groundwater recharge for beneficial use under applications 31165 and 31370 made by the San Bernardino Valley Municipal Water District and the Western Municipal Water District. The granting of those applications has never been acted upon, but the California Regional Water Quality Control Board is now considering a request by the San Bernardino Valley Municipal Water District for a time extension of up to an additional 20 years to construct the facilities to be able to access that water. The district’s possession of the acreage next to the dam makes it possible to construct the facilities and achieve the goal in its request.
The San Bernardino Valley Municipal Water District’s acquisition of the 1,657 acres renders the effort to use the water in the adjoining dam and reservoir more feasible. In turn, the district’s utilization of the water will create an opportunity to make a future claim on water rights, which will assist in preventing outside interests from horning in on San Bernardino County’s indigenous water supply.

SB Council To Seek Bringing Valdivia To Heel By Cutting His Paycheck

The San Bernardino City Council, which has been on increasingly acrimonious terms with Mayor John Valdivia for some time, this week intensified the discordance, scheduling for upcoming discussion and potential action an examination of substantially reducing the salary provided to the mayor.
Valdivia, a resident of the city’s south end, successfully ran for the city council in 2011, and moved into the Third Ward councilman’s position in 2012. In 2018, he successfully vied for mayor against then-incumbent Carey Davis, prevailing with 19,155 votes or 52.51 percent to Davis’s 17,327 votes or 47.49 percent.
The Valdivia mayoralty started out auspiciously enough, as the newly-elected mayor had the backing of then-incumbent Sixth District Councilwoman Bessine Richard and Fifth District Councilman Henry Nickel, as well as that of the two newly elected members of the council, First District Councilman Ted Sanchez and Second District Councilwoman Sandra Ibarra. When Valdivia’s close political associate Juan Figueroa was elected in a special election held in May 2019 to fill the vacancy created by Valdivia’s December 208 resignation as the council representative in the Third District so he could move up into the mayoral post, Valdivia appeared to be in a position of absolute political dominance in San Bernardino, as he had only two foes on the council at that point, Fourth District Councilman Fred Shorett and then-Seventh District Councilman Jim Mulvihill.
In 2016, two years before Valdivia’s elevation to mayor, San Bernardino’s voters had voted to rewrite in its entirety the San Bernardino municipal charter that had been in place since 1905. Unrecognized or at least underappreciated by many was that the new charter greatly attenuated the mayor’s power. The 1905 Charter had limited the mayor’s political reach. Though the mayor the chief presiding officer at council meetings and able to control the ebb and flow of the council’s public debate, the 1905 charter granted the mayor no vote on the council when it was considering action items other than to break a tie and veto authority on 4-to-3 or 3-to-2 votes. The 1905 Charter nevertheless entrusted to the mayor tremendous administrative power, such that he shared with the city manager the authority to hire and fire department heads or other city employees. The revamping of the charter in 2016 converted the city into a council-city manager form of governance. It stripped the mayor of his or her administrative authority, taking from him or her the authority to hire city employees, personally monitor their performance and terminate them as he or she saw fit. The city manager, who was answerable to the city council, in the 2016 Charter was entrusted with the entirety of the city’s administrative responsibility. The new charter, while ending the mayor’s status as the co-regent of San Bernardino in conjunction with the city manager, did nothing to enhance his previously limited political authority. Under the 2016 Charter, the mayor remained as the presiding officer over city council meetings and he retained his figurehead status as the spokesman for the city and City Hall, yet was ineligible to vote on the matters considered by the city council unless a first vote ended in a tie. He did keep his veto power, which could be employed in those cases where the majority prevailed by a single vote.
Thus, upon his election as mayor, Valdivia’s actual power or authority consisted in large measure of the perception of him as the city’s leading citizen and as the leader of the city council. Indeed, as mayor Valdivia could rightfully claim to being the primary elected official in the city, since he had been put into office through the will of all of the city’s voters while the council members were limited to asserting a hold on their positions on the basis of the votes of just one-seventh of the city’s electorate. Still, Valdivia had virtually no say in the decisions of the city council unless their votes ended in a tie or a narrow one-vote difference. To have any influence on civic affairs, any mayor in San Bernardino after the passage of the 2016 charter needed, needs and will need to be able to assemble a coalition on the council and keep that coalition together.
As the spring of 2019 turned to summer, Valdivia appeared to be the master of San Bernardino. Early in June, he effectuated the removal of Andrea Travis-Miller, the city manager he had inherited from his mayoral predecessor Davis’s administration, and saw to it that Assistant City Manager Teri Ledoux was promoted to succeed her. It thus seemed that Valdivia had established an understanding with Ledoux by which she was given a professional boost she most likely otherwise never would have achieved in exchange for Valdivia’s agenda being facilitated at the staff level. He was also able, at that point, to count upon the votes of Sanchez, Ibarra, Figueroa, Nickel and Richard to overcome the committed opposition of Shorett and Mulvihill, and thus control the directives officially given to Ledoux.
San Bernardino was Valdivia’s oyster, Nevertheless, within the span of a relatively few months, Valdivia’s control over the city eluded his grasp.
Even before Valdivia was elected mayor, there were indications that he was involved in pay-to-play politics in which he was provided with donations to his political campaign fund in exchange for his vote as a council member supporting those donors’ applications for city franchises or project approval with the community development department or contracts to deliver services and/or goods to the city. After his election as mayor, there were further indications that Valdivia was heavily involved in trading his votes for campaign donations as well as evidence suggesting he was on the take, receiving bribes from entities dong business with the city or seeking project approvals, such as many of the applicants for permits and licenses to operate commercial marijuana/cannabis-related businesses in the city. Those revelations included accounts of Valdivia being provided with cash that never was reported as campaign donations and which he simply pocketed or payments made to him through his consulting business, AAdvantage Comm LLC, which served as a laundering mechanism for the payoffs he received.
Over the last six months of 2019, Valdivia’s political fortunes took a decided turn for the worse. His chief of staff, Bilal Essayli, perhaps seeing the oncoming train wreck, resigned his position in July. Before the end of the summer, Valdivia alienated first Ibarra and Nickel. In October 2019, Valdivia was on the outs with Sanchez, such that by the end of 2019, he could no longer count on a majority of the council’s votes in supporting his initiatives. At that point, Valdivia had effectively lost control of the council. What was more, in his frustration, Valdivia began to lash out at city staff, ultimately alienating then-City Manager Ledoux and City Attorney Sonia Carvalho, both of whom were once safely within his camp.
In January 2020, Mirna Cisneros, Valdivia’s constituent service representative, and Karen Cervantes, his special assistant, went public with accounts of how Valdivia had pressured them to have sex with him. Cisneros related how Valdivia had solicited and received bribes. She also laid out how he used city money to travel nationally and internationally on business unrelated to the city, which included raising money for himself or his future political campaigns. Thereafter, Jackie Aboud, Valdivia’s field representative, came forward to say that Valdivia had squeezed her to have sexual relations with him, and that Valdivia had used his influence as mayor to provide favorable city treatment to his donors and supporters, while working to prevent city services from being rendered to his constituents who were not supporters, in particular those in the city’s Fourth and Seventh Wards, represented by his two rivals on the council, Fred Shorett and Jim Mulvihill. Alissa Payne, whom Valdivia had appointed to the city’s Arts and Historical Preservation Commission and the San Bernardino Parks, Recreation and Community Services Commission, publicly surfaced with accounts that were in some fashion similar to those of Cisneros, Cervantes and Aboud with regard to sexual advances the mayor had made toward her. Don Smith, who had worked on Valdivia’s campaign for mayor and was subsequently hired by the city to serve as Valdivia’s part time field representative, offered specific accounts of bribetaking by the mayor, including one of a bribe that had originated from holders of the city’s tow truck franchises, consisting of a cash-stuffed envelope given to the mayor in his presence. Matt Brown, who was brought in to serve as Valdivia’s chief of staff in August 2019, roughly a month after Bilal Essayli resigned, stated that he was being retaliated against by Valdivia for having sought to protect Cisneros, Cervantes and Aboud in the face of Valdivia’s treatment of them, and he retained Tristan Pelayes, the lawyer who was representing Cervantes, Cisneros, Aboud, Payne, and Smith. Ultimately, Aboud, Brown, Cervantes, Cisneros and Smith sued the city over the ordeals they experienced with Valdivia.
In the March 2020 election, Valdivia’s political affiliate and council ally, Juan Figueroa, was reelected, and Valdivia’s political affiliate and council ally Bessine Richard was voted out of office, replaced by Kim Calvin. Both Henry Nickel, who had evolved into one of Valdivia’s political foes, and Jim Mulvihill, who had never been aligned with Valdivia, were obliged to engage in runoff elections in November 2020 when they did not get more than 50 percent of the vote in March. Ultimately, they were displaced, respectively, by Ben Reynoso and Damon Alexander. While it was initially thought that Alexander might emerge as Valdivia’s next ally on the council, that did not materialize. Calvin very early on clashed with Valdivia, and Reynoso has proven to be a more committed antagonist to the mayor than was Nickel. Thus, at present, the only vote of consistent support on the council that Valdivia can count on is that of Figueroa.
Earlier this year, Valdivia and Figueroa were dealt the blows of revelations pertaining to both receiving support and money, characterized as bribes, from entities with applications for commercial marijuana dealerships in the city as well as from SCG America, which was competing to obtain redevelopment rights at the Carousel Mall in downtown San Bernardino.
In April of this year, Councilman Fred Shorett floated a proposal to ask the voters to eliminate the mayor’s position altogether, such that the city council would exist as seven members among whom the mayoral duty would be shared through a rotating appointment decided by the council members themselves. Ultimately, Shorett’s proposal found support from Sanchez, Ibarra, Reynoso and Calvin, and city staff was directed to provide draft language for a ballot measure to be presented to the city’s voters in the June 2022 primary election to determine if they favor eliminating the mayor’s position effective upon the end of Valdivia’s term in December 2022. Dissenting on the vote were councilmen Figueroa and Alexander. It has been reported that Alexander is contemplating a run against Valdivia next year.
This summer, Valdivia courted further controversy by billing the city for $4,686 to cover the expenses – covering the cost of gilded invitations, flowers, balloons, meals and drinks – for a so-called VIP reception to be held at Hilltop Restaurant in San Bernardino in the immediate aftermath of the mayor’s State of the City address. That event, Valdivia insisted, was to accommodate his list of invitees, a group Valdivia characterized as San Bernardino’s “residents, stakeholders and movers and shakers.” It turned out, however, that attendance at the reception was to be limited to those who were invited, and the only council member invited was Figueroa, Valdivia’s lone remaining ally on the council. Nearly all of those invited were Valdivia’s campaign donors, whom he intended to hit up again for more electioneering funding.
Taking stock of the way in which Valdivia had used taxpayer money to conduct personal fundraising, the city council on Tuesday, June 15 of this year unanimously directed City Manager Robert Field to cancel the VIP reception, ordered the city attorney’s office to look into the misuse of public funds Valdivia has engaged in, recover the money billed to the city for the reception and asked for an independent review of expenditures from the mayor’s office since January 2019.
Councilman Shorett, who had previously telegraphed that he intended to float a proposal that the the city council contemplate a substantial reduction in the mayor’s pay, came to the October 20 city council meeting prepared to raise that issue during that portion of the proceedings reserved for city council members to suggest items for future action.
In 2019, the last year for which figures are available, Valdivia was provided, in his role as mayor, with $159,180.90 in total annual compensation, consisting of a $103,273.93 salary, another $8,763.80 stipend for attending other meetings of joint power agencies or governmental committees he is a board member of, $22,854.90 in benefits and a $24,288.10 contribution toward his retirement fund.
By contrast, members of the city council receive $13,441.71 for their normal council duties which consist primarily of preparing for and attending council meetings, along with a rough average of $3,900 contributed toward their retirement funds, an average stipend of about $7,300 for attending other meetings of joint power agencies or governmental committees each is a board member of and an average of $13,669 in benefits and perquisites annually for an average total yearly compensation of roughly $34,785.
Valdivia, who was forewarned of Shorett’s move, prepared a response for the October 20 meeting intended to preempt Shorett’s suggestion, and if that did not work, lay the groundwork for a campaign to prevent the takeaway or reduction of his pay.
One of the defenses in the face of the criticisms that have been vectored his way which Valdivia has gravitated to since he has become mayor involves, when the criticism emanates from Caucasians, asserting that he is the victim of a racist attack. It was no different last week.
Before Shorett had an opportunity to unveil publicly his proposal to reduce the mayor’s pay, Valdivia used his position as mayor to hold forth, saying, “A few months ago, Councilman Fred Shorett supported a charter change to take away the people’s right to elect your mayor. Under Mr. Shorett’s plan, the politicians, not the voters, would choose San Bernardino’s future mayors. Now, Mr Shorett is proposing to slash the salary of the mayor so that only rich people can afford to serve. Mr. Shorett doesn’t like the demographic changes occurring in our community. He doesn’t like the fact San Bernardino elected a working-class resident and a person of color to the office of mayor. He wants to go back to the bad, old-guy system of wealthy country club mayors. Mr. Shorett has repeatedly complained that he is the last of the old white guys…”
At that point, Councilwoman Calvin, an African-American, interrupted Valdivia.
“How did this get on the agenda?” Calvin asked. “This sounds like a personal statement.”
A cacophony of like protests over what Valdivia had said erupted from council members Ibarra and Sanchez, who are Hispanic, from Councilman Reynoso, who is of African-American and Hispanic parentage, and from Councilman Alexander, who is African-American. They endorsed Calvin’s call for the mayor to discontinue his remarks.
City Attorney Sonia Carvalho at that point weighed in, stating that under the tradition set by previous practice, the mayor was entitled to continue, insofar as his statement qualified as a form of discussion.
Thanking Carvalho, Valdivia resumed.
“Mr. Shorett has repeatedly complained that he is the last of the old white guys on the city council,” the mayor said. “His prejudices have no place on this dais. And as your mayor, I will stand 100 percent behind the people’s right to vote for mayor. And I will fight to ensure that every resident of our city, not just the wealthy and politically connected, has the financial ability to serve in the office of mayor. It’s time for us to move forward, folks.”
Shorett reacted, saying, “Nothing that has just been said could be any further from the truth. This is just an item that I think is good fiscal responsibility. We have four votes to put on the charter to go before the people to revise, eliminate, revisit the position of the mayor. The voters voted overwhelmingly to change the charter to a council-city manager form of government. The role of the mayor has been reduced very, very significantly. I don’t know where the initiative for getting it on the charter will go or whether the voters will vote for it. If it does get on the ballot or not, that [preventing anyone other than wealthy white and aging men from acceding to the mayor’s post] is not my intention at all. This is to be fiscally responsible and pay somebody for the amount of work that they are doing or required to do under the charter. I’m just suggesting we take a look at it. The mayor’s office costs this city almost $400,000 a year, and the salary of the mayor is upwards of $143,000 a year fully burdened, including all stipends and car allowances and what have you, and he has no real authority and responsibility anymore under the new charter. I’m just asking my colleagues that we look into it and look into the value of it, whether he’s reelected or not, whether anyone is elected to be mayor. I believe the salary of the mayor should be reviewed and should be reduced.”
Shorett’s motion to have the city council consider action to that effect at a future council meeting was then passed unanimously by the council.
-Mark Gutglueck

Upland Officials’ Ruse To Conceal Bond Issuance Provoked Ire That Doomed The Effort

On October 15, Upland municipal officials abandoned their ploy to stealthily issue $121 million in bonds and impose thereafter what would ultimately have become a $3,560.56 tax on every man, woman and child in Upland to cover the cost of pensions for municipal employees.
Ironically, it was a decision by the city council to try to sneak the issuance of the bonds past Upland’s citizens which ultimately led to a challenge of the strategy to use bond financing to borrow the money to plug the budget shortcomings the city will experience over the next half century as a consequence of the too-generous benefits past councils gave and the current council continues to provide to city employees.
Projections are that if the city does not act to reform the arrangement it has to provide for its past and current employees after they are no longer working, the city will have no choice other than to declare bankruptcy or disincorporate by 2032.
The plan to have the city borrow its way out of the coming crisis and thereby stall off the bankruptcy or disincorporation until 2042 or thereabouts was hatched by former City Manager Rosemary Hoerning, Assistant City Manager Stephen Parker, the consulting firm of Urban Futures and City Attorney Steven Deitsch. Hoerning is eligible to draw an annual pension of roughly $200,000 for the rest of her life. Parker is likewise on a trajectory to eventually receive a pension at or approaching $200,000 if he remains employed in the public sector until he reaches the age of 60.  Urban Futures stood to gain $62,500 if the bonds were issued, and it employs as one of its key directors former Upland employee Steve Dukett, who is currently drawing combined public pensions providing him with $185,540.28 annually. Deitsch’s law firm, Best Best & Krieger, stood to reap $70,000 through the issuance of the bonds.
Rather than asking the city’s voters to consider a bond measure by placing a question as to whether the city should issue the bonds or not on a citywide ballot in either a special election or as part of an upcoming regularly scheduled election as the 2022 primary or general election, the five members of the city council, Parker and Deitsch attempted to use the backdoor means of using a validation complaint, a legal action filed in Superior Court against the city’s residents, to get clearance to issue the pension obligation bonds.
The plan ran into the stiffest of headwinds, however, when the Howard Jarvis Taxpayers Association, which had a perfect record of success in opposing four other California cities in their efforts to issue pension obligation bonds without first obtaining voter approval to do so, filed a response to the city’s validation complaint on behalf of Upland residents.
The validation process the city attempted to use is one that involves the filing of a validation complaint against the residents/taxpayers of the jurisdiction for which the bonds are to be issued. Upon the filing of that complaint, which is a type of lawsuit, a judge considers and ultimately approves the language to be contained in the summons that will alert those who are being sued that they have an opportunity to object to the bond issuance and state their reasons for the objection. The summons is then published in a newspaper of general circulation within the jurisdiction on three days over three weeks. If no one comes forth to answer the lawsuit within 30 days of the newspaper’s first publication of the summons, then the judge will declare that the city or governmental jurisdiction is at liberty to issue the bonds. If an individual, individuals or a group comes forward to oppose the issuance, then the court schedules briefings, hearings and a trial for the city to establish that issuing the bonds is justified in the face of the opponent[s] putting on a case contesting the legality and propriety of utilizing bonds for the city’s stated purpose.
Upland city officials maintained as much secrecy as they could with regard to the move toward the bond issuance in the hope that the 30-day deadline would pass before an answer to the complaint was filed with the court.
In all of its actions relating to the contemplated bond issuance, the city council did not consider those items in an open public hearing such that they were separately called out in the agendas for the city council meetings at which that action was considered and took place. Rather those actions were presented on the consent calendars for each of those meetings.
Normally, in Upland and all cities elsewhere, the consent calendar is reserved for routine and noncontroversial actions that merit no discussion. The practice in Upland as it is in other cities is to not consider any of the items that are placed on the consent calendar individually but to vote on them collectively. In this way, it is very easy for the public to take no note of the items on the consent calendar. Accordingly, the public is very likely to miss the significance of any items that appear on the consent calendar and to have no understanding whatsoever or awareness of the substance of consent calendar items.
The actions the city took under the shroud of secrecy the consent calendars provided included:
* The hiring, on April 28 of this year, of Urban Futures as the city’s bond issuance consultant;
*The retaining, on May 10 of this year, of Best Best & Krieger to serve as the validation counsel and bond counsel for the bond issuance;
*The retaining, on May 10 of this year, of the law firm of Straddling Yocca, Carson & Rauth to serve as the disclosure counsel for the bond issuance; and
*The hiring, on August 9 of this year, of J.P. Morgan Securities LLC as the managing underwriter and Stifel, Nicolaus & Company, Incorporated as the co-managing underwriter for the proposed pension obligation bond issuance.
On July 21, in a lawsuit designated CIVSB2121939 by the San Bernardino County Superior Court and titled City of Upland v. All Persons interested in the matter of the proceeding for the issuance and sale of bonds for the purpose of refunding certain obligations that the City of Upland owes to the California Public Employees’ Retirement System, the City of Upland quietly sued its 77,754 residents by means of a validation complaint, challenging them to come forward within 30 days of being served with notice of the lawsuit with reasons why the city should not issue $121 million in pension obligation bonds.
Late in July an eagle-eyed Upland resident spotted the recordation of the validation complaint on the San Bernardino County Superior Court’s website, and word spread among a small circle of Upland residents that the city had filed suit against all of its residents. On Thursday August 12, the city quietly filed with the court for its approval of the language for a proposed summons naming no single individual but a collective, that being “all persons.”
“You are being sued,” the summons to participate in the validation process read in part. “You have 30 calendar days after this summons and legal papers are served on you to file a written response.”
Thereafter, inquiries with regard to the legal action were made with City Hall. In response, Parker put out a statement on August 18. “To be clear, the city has not directly or even indirectly sued its constituents,” Parker asserted. “No action is being taken against any individual, constituent or not, and at the end of the day, there will not be any judgment or adverse action taken against any individual because of the validation action.”
Councilwoman Janice Elliott backed Parker with the assurance that it was not accurate to say the city was suing its residents.
“In the validation language, the word ‘sue’ means to notify of a court action,” Elliott stated. “In this case, it is not an action against our constituents; it is a notification of a court process that allows us a cheaper and faster means of issuing pension obligation bonds than putting it on a ballot and calling for a special election.” Those who did not believe her, Elliott said needed to “review the various definitions of ‘sue.’”
Parker’s and Elliott’s statements suggested that the city had rethought the wisdom of the engaging in the validation complaint and might dispense with or change the language of the summons. As events unfolded, however, it was revealed that Parker, Elliott and other Upland city officials were continuing with the validation effort and were seeking to lull Upland’s residents into a state of complacency.
At that point, sensing evasion and double-talk on the part of Upland officials, seven Upland residents began monitoring the Inland Valley Daily Bulletin, the most widely circulated local daily newspaper in Upland and in which the City of Upland does its legal advertising, on the lookout for the summons. In the same timeframe, some of the people interested in the City of Upland’s issuance and sale of pension obligation bonds, figuring they were no match for the city on their own in the face of its deception, opened a channel of communication with the Howard Jarvis Taxpayers Association. The Howard Jarvis Taxpayers Association’s legal team secured a copy of the validation complaint, and signaled to those Upland residents that upon the publication of the summons, they should inform the association of that occurrence.
On September 9, the city served that summons on its residents by means of a legal notice published in the Inland Valley Daily Bulletin. Despite Parker’s and Elliott’s assurances the previous month that the city wasn’t suing its residents, the summons to all parties interested in the issuance of the bonds, meaning all residents, landowners, business owners, taxpayers and citizens of Upland, informed them, “You are being sued by plaintiff: City of Upland.”
There was no immediate visible reaction to the filing, and within a week City Hall insiders were counting their chickens, expressing confidence that there would be no residents willing to go to the expense or bother to make an answer to the validation complaint. Indeed, a full eleven days elapsed without any indication that the city’s effort to issue the bonds was to be contested. On September 21, with a mere 18 days to go before the city would have been free to initiate the issuance of the bonds, the Howard Jarvis Taxpayers Association, representing its members residing in the Upland community and itself represented by its President, Jonathan Coupal, who is an attorney, and two of its staff attorneys, Timothy Bittle and Laura Dougherty, filed an answer to the validation complaint. Two days later, the Howard Jarvis Taxpayers Association filed with the court and had served upon the City of Upland a first request for the production of documents relating to the case and a first set of special interrogatories.
At its next regularly scheduled meeting on September 27, the city council discussed the validation suit during a closed session outside the scrutiny and earshot of the public. City Attorney Deitsch informed the public after that session concluded that the council had taken no reportable action.
On Monday October 11, at 5 p.m., one hour prior to the normal 6 p.m. start of its regularly scheduled meeting, the city council met in a specially scheduled closed door meeting to discuss the validation action. When the council emerged from that session, City Attorney Deitsch stated that the council had taken no reportable action.
On October 15, Scott Ditfurth, the attorney with Best Best & Krieger representing the city in the validation action, filed a motion with the court to dismiss the entire case and all of its causes of action. Thereupon, Judge Lynn Poncin, who was hearing the matter, entered a dismissal of the complaint without prejudice before trial.
Unbeknownst to, and unappreciated by, the city council, Parker and Deitsch was that the Howard Jarvis Taxpayer Association had been brought into the case in large measure because of the manner in which the council, Parker and Deitsch had sought to secretively effectuate the bond issuance and then prevaricated about the lawsuit the city had filed against its own residents to achieve that goal.
This week, at the council’s second regularly meeting of the month on October 25, Deitsch sought to cast the city’s action in a benign light.
“Several weeks ago the city of Upland filed a validation action in San Bernardino County Superior Court, seeking court approval for issuance of pension obligation bonds,” Deitsch said. “The proposed issuance of such bonds and the filing of the validation action had been fully considered and discussed by the city council. The issuance of the bonds would allow the city to satisfy at least part of its current obligation to the public employees retirement system by issuing pension obligation bonds at a lower interest rate than the public employees retirement system obligation now carries and is expected to carry into future years, and then the city would use bond proceeds to satisfy the public employees retirement system obligation. It should be noted that other cities in California have successfully issued such pension obligation bonds, and have done so following successful completion of a validation action in court similar to the one filed by the City of Upland. The validation complaint in our matter named as defendants quote all persons interested in the issuance of the bonds end quote. The court granted Upland’s request for an order to publish notice and summons of the validation action, and this would be published, and was, in a newspaper of general circulation. The city did this. The Howard Jarvis Taxpayers Association recently filed an answer with the court. The answer constitutes a challenge to the city’s ability to validate its pension obligation bonds, and would require the parties to litigate the city’s ability to issue the bonds. The city does not believe that the Jarvis answer has merit. However, it would take much time to complete the validation litigation with the possibility of a subsequent appeal by the losing party. It would also cost the taxpayers significant money to litigate. One down side is that the current attractive bond interest rates might no longer be available at the conclusion of the protracted litigation. As a result, the city has decided not to pursue the validation action and has dismissed the validation complaint. So, now the city will consider alternative financing approaches to address the city’s existing pension obligations.”
-Mark Gutglueck

Hesperia Intensifying Tobacco Sale Licensing & Regulations

The Hesperia City Council on October 19 gave initial approval to an ordinance that imposes several hundred dollar licensing fees on businesses selling cigarettes and other tobacco products.
“Tobacco use remains the leading cause of preventable disease, disability, and death in the United States,” the staff report on the ordinance, written by Assistant City Manager Rachel Molina and Management Analyst Jamie Carone and provided to the city council by City Manager Nils Bentsen, stated. “Tobacco use is responsible for the premature death of more than 480,000 people each year and typically begins during adolescence. Youth often fall victim to deceptive and clever advertising created by tobacco companies.”
The council heard from people who said that smoking and tobacco use in general is unhealthful and that smoke shops have been and are continuing to sell their products to minors.
That was affirmed by Councilman Larry Bird, who is the principal at Sultana High School. He said vaping by students was widespread on campus.
The ordinance bans the advertising of candy flavored tobacco products or ones packaged to appeal to children, and prohibits the sale of single cigarettes and cigars or sales via coupon discounts intended to lure in children.
In addition to the tobacco sales licenses, such purveyors are also required to secure normal business licenses.
The pricing schedule on the licenses was somewhat confusing, with different types or levels of permits specified in the report, the distinctions between which are unclear.
“The cost for a tobacco retail license will be $210.00,” the staff report states. “A combination license fee will be available for retailers who fall under the city’s deemed approved program. The cost of this license will be $485. This fee is comprised of the deemed approved fee of $325 plus an additional $160 to cover the costs of the additional code enforcement inspections upon license application and throughout the year. If necessary, a reinspection fee may be charged for an additional $60 for each inspection.”
The report did not explain the difference between a retail license and a combination license, nor elaborate on what the deemed approved program is or the benefits or advantages it offers retailers.
The report, however, did spell out the consequences of not securing a license or of being caught selling tobacco or tobacco products to minors.
A violation of any existing state or federal law will constitute a violation of the tobacco retail license. Violations will trigger a suspension of the city license. Without a city license, retailers cannot sell tobacco or tobacco products in Hesperia at all.
City attorney Eric Dunn indicated that the possession of a tobacco sales license would not serve as a loophole to allow for the sale of marijuana or cannabis products.

Remains Determined To Be Cho’s; Circumstance Suggests Death Was Most Likely Misadventure

By Gail Fry & Mark Gutglueck
An advisory issued by the San Bernardino County Sheriff’s Department on Thursday, October 28 stated that the human remains located on October 9, 2021 in an area described as “open desert” in Yucca Valley have been confirmed as those of Lauren Cho, who went missing four months ago.
“The San Bernardino County Coroner’s Division has positively identified the human remains to be Lauren Cho, 30-year-old resident of New Jersey,” the advisory states. “The cause and manner of death is pending toxicology results. No further information will be released on this case until such time toxicology results are available and new information is discovered as a result.”
An individual close to the search and investigation told the Sentinel it appears there was no foul play involved, and that Cho perished after she ill-advisedly walked off into the desert alone on a summer afternoon with very bright, indeed blinding, sun and temperatures in excess of 100 degrees. She did not have with her any water or her cell phone, and it appears she became disoriented and could not find her way back to where she was staying or a less unforgiving location.
According to information provided by the sheriff’s department on October 10, the previous day, October 9, 2021, “unidentified human remains were located in the rugged terrain of the open desert of Yucca Valley.”
Cho, a musical, visual and vegetarian culinary artist who withdrew from her position as a music teacher in New Jersey early this year to go on a road trip with her boyfriend, Cody Orell, had visited several artists’ communities before alighting at the bed & breakfast inn dubbed “The Whole” owned by filmmaker/musician Tao Ruspoli, located in the 8600 block of Benmar Trail just outside the westerly Yucca Valley town limits. Cho and Orell had obtained a decommissioned school bus which they were working to transform into a mobile diner, from which Cho was hoping to feature meals to customers while continuing to travel up and down the Pacific Coast. They were engaged in the makeover of the bus while staying on the grounds of the Whole.
Based upon information available to the Sentinel from a variety of official and unofficial sources, Cho, who was in a state of mental/emotional agitation, at around 2 p.m. in the afternoon of June 28, 2021, wearing casual attire and Doc Martens hiking boots, headed off from the Whole into the desert generally in the direction of Hoopa Road and the hilly terrain separating Yucca Valley and Morongo Valley. When after three hours she had not returned, Orell phoned the sheriff’s office around 5:10 p.m., after which a search for Cho was initiated but proved unsuccessful.
The sheriff’s department’s nomenclature for the Cho matter bears the case numbers 092101115 and H#2021-114.