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San Bernardino Superior Court Judge Donald Alvarez On May 7 made a tentative ruling scheduled to become final on May 22 that shuts the door on the Town of Apple Valley’s effort to use eminent domain to seize ownership of the city’s primary water utility.
The town had asserted in litigation first filed more than five years ago and propounded during a 67-day trial that began in October 2019 and which was interrupted by the COVID-19 pandemic from March 2020 until June 2020 before testimony and the presentation of evidence concluded in July 2020, that the town taking possession of the local water supply and the means of delivering it to Apple Valley’s 73,000-plus residents and its businesses was both necessary and in the public interest. Judge Alvarez rejected that assertion, noting dryly and in some detail that the town repeatedly engaged in misstatements of fact to make its case.
At stake in the matter was the successor to the Apple Valley Ranchos Water Company, which was created by Newt Bass and B.J. Westland in 1945 when they founded the town on 6,500 acres they had acquired from the Southern Pacific Railroad. The town’s ultimately unsuccessful bid is only the second such effort in California history where the matter was decided in the forum of a trial by which a court served as the arbiter of whether a local government can use condemnation procedure to take possession of a water utility.
Apple Valley’s use of the eminent domain option came after what were two previously missed opportunities – one in 1988 and another in 2011 – to make a public takeover of the water system at costs that would have been far below what the town would have needed to pay had Judge Alvarez ruled that the eminent domain request should be granted.
In 1945, Bass and Westlund created the Apple Valley Ranchos Water Company, which was in part constructed using salvaged oil pipelines from a nearby failed petroleum mining operation. The water system expanded in fits and starts as the town grew and its population swelled in the 1950s, 1960s, 1970s and 1980s, by which time Apple Valley Ranchos was owned and operated by the Wheeler Family.
In 1988, the town was incorporated. Shortly after the town was established as a municipal entity, the Wheelers offered to sell the Apple Valley Ranchos Water Company – then consisting of 18 medium and deep wells, pipes, reservoirs, pumping units and appurtenances – to Town Hall for $2.5 million. The maiden town council – consisting of Nick DePrisco, Heidi Larkin, Dick Pearson, Carl Coleman and Jack Collingsworth – spurned that offer. Town officials thought the cost of maintaining the wells, reservoirs, pipes and hookups to be beyond the town’s means.
In 2011, the Carlyle Group, an American/multinational private equity and asset management corporation, acquired from the Wheeler Family at a cost of $102.2 million the Park Water Company, which in addition to its water system assets in Apple Valley included the water system serving Compton, Downey and Bellflower in Los Angeles County, as well as the Mountain Water Company, serving Missoula, Montana. Upon the Carlyle Group assuming ownership of Park Water, the town of Apple Valley impaneled a so-called blue ribbon committee to consider acquiring Apple Valley Ranchos. That committee advised against the acquisition.
In 2012, Park Water, at the direction of the Carlyle Group, obtained from the California Public Utilities Commission permission to institute 19 percent rate increases on Apple Valley Ranchos customers to carry out what was said to be necessary upgrades to the aging equipment and facilities that delivered water to the then-74.99-square mile town’s then-70,000 residents.
In 2010, Park Water made $2.4 million in upgrades to Apple Valley’s water system. In 2011 the Carlyle Group undertook and completed $3.4 million in capital improvements to the Apple Valley Ranchos Water Company; another $5.7 million in work on the system in 2012; $7.5 million in upgrades in 2013; $8.1 million in improvements in 2014; and $7.8 million in maintenance and additions in 2015. The Carlyle Group obtained from the California Public Utilities Commission clearance to institute another 30 percent rate hike on Apple Valley Ranchos customers to be implemented from 2015 until 2017. The previous 19 percent hike followed by the 30 percent increase caught the attention of town officials, who radically changed their collective position with regard to the advisability of the town taking possession of the utility.
Simultaneously, the City of Claremont in Los Angeles County was attempting to utilize the eminent domain process to wrest from the Golden State Water Company the water system that supplied water to that city.
Some 1,128 miles away, in Missoula, Montana, city officials there, who were likewise chaffing under the higher rates that Park had imposed on the Mountain Water Company’s customers, had initiated what in time would prove to be a successful effort to take possession of the water utility from its private owner by means of an eminent domain proceeding.
Apple Valley’s town attorney was and is an associate with the same law firm, Best Best & Krieger, with which the City of Claremont’s city attorney at that time is a partner. A discussion of the potential efficacy of the town using the eminent domain process to commandeer the Apple Valley Ranchos Water Company ensued at that point, together with Apple Valley town officials trading notes with Missoula city officials.
The town was a bit tardy in moving toward the eminent domain solution, as the Carlyle Group in the summer of 2015 purchased for $300,000 the water system serving some 900 residents in the desert community of Yermo, which lies roughly 36 miles from Apple Valley. The Carlyle Group then packaged a sale of the entirety of the water utilities it owned in California and Montana, which it labeled Western Water Holdings, to a Canadian company, Algonquin Power/Liberty Utilities, for $327 million.
While Algonquin/Liberty was before the California Public Utilities Commission in 2015 to get permission to proceed with the Apple Valley Ranchos acquisition, Apple Valley officials voiced opposition to the sale in an effort to block it. An element of that protest was that the town was interested in acquiring the water company, if necessary by condemnation.
Simultaneously, the town obtained from what it referred to as “an independent appraisal firm” the rather wishful “fair purchase price” of $45.54 million for Apple Valley Ranchos, and thereafter indicated it would be wiling to pay Park Water the somewhat unrealistic figure of $50.3 million for the Apple Valley Ranchos water system lock, stock and barrel.
A more pragmatic assessment was that the Apple Valley Rancho Water Company, representing roughly one third of the entirety of Western Water’s assets at the time of Algonquin/Liberty’s $327 million purchase, was worth, roughly, $109 million. Another calculation, one in which the $88.6 million fair market value for Mountain Water Company component upheld by the Missouri District Court in Missoula in June 2015 was subtracted from $327 million purchase price for Western Water, indicated that the Bellflower-Compton-Downey and the Apple Valley components of Western Water were worth $238.4 million in 2016 dollars. Assuming Apple Valley Ranchos, with its 24 deep wells throughout Apple Valley and three wells in Yermo, represented roughly one half of the remaining Western Water assets now in the possession of Algonquin/Liberty, its fair market value would have been, in 2016 dollars, approximately $119 million.
With California in the 203rd week of the 376-week drought that began on December 27, 2011, and ended on March 5, 2019, the town council on November 17, 2015 adopted two resolutions of necessity, precursors to an eminent domain action, declaring that the town takeover of the water system was both necessary and in the public interest.
Ultimately, the California Public Utilities Commission in December 2015 voted to allow Liberty to proceed with the acquisition of Park Water Company.
With Apple Valley unwilling to offer anything approaching $109 or $119 million for the water system, and Liberty disinclined to sell its Apple Valley holdings in any event, Apple Valley officials moved forward with the eminent domain action aimed at seizing the water company, filing its eminent domain action in San Bernardino Superior Court on January 7, 2016. After more than three years and nine months of legal sparring, the matter came to trial before Judge Donald Alvarez on October 23, 2019.
After the 67-day trial, the parties engaged in an extensive post trial briefing schedule followed by closing oral arguments. The matter was taken under submission, and on Friday, May 7, Judge Alvarez entered his tentative decision. Unless the town manages to convince him to reverse himself, the decision will be locked in on May 22.
The town was seeking by its action to “provide water to the town and some areas outside its borders,” Judge Alvarez wrote in that decision. “The assets the town seeks to acquire from Liberty include such things as water wells, water rights, reservoirs, tanks, pumps, underground pipelines, other infrastructure, real property and systems used to deliver water. If the town is successful in acquiring the Liberty water assets, it intends to use the assets to operate a municipally-owned water system to sell water from the same sources and infrastructure to subscribers in the same service area. The town itself does not have any experience in operating a water system and would initially seek to hire the same Liberty employees to continue to operate the system, assuming such employees would be willing to stay on with a new owner, which at best is uncertain and speculative at this time.
“The town alleges it began exploring acquisition in response to a number of factors including but not limited to such things as public concern about escalating water rates and the lack of local control and decision-making over water rates, service and expenditures, although curiously, at trial, the town’s own evidence acknowledged it was unlikely water rates would be reduced even if the taking was successful,” Judge Alvarez’s analysis of the case continued. “Under the applicable eminent domain statutes, the court must decide four issues to determine whether the town is permitted to take the water system: First. Do the public interest and necessity require the town’s project? Second. Is the town’s project planned in the manner that will be most compatible with the greatest public good and the least private injury? Third. Is the property sought to be acquired by the town necessary for the town’s project? Fourth. Is the use for which the town seeks to take Liberty’s property a more necessary public use than the use to which Liberty’s property is presently devoted?”
By project, Judge Alvarez was referring to the town’s takeover of the entirety of the water company.
“In its opening post-trial brief, Liberty stated that it does not contest the third item; only the first, second, and fourth issues are contested,” Judge Alvarez wrote. “Liberty challenges the first and second issues by objections under Code of Civil Procedure §§1250.370(b) and (c), and it challenges the fourth issue by objection under Code of Civil Procedure presumption in Code of Civil Procedure §1250.360(f).”
Judge Alvarez then noted that prior to 1992, the town could have essentially used its own authority to declare and thereby establish both the necessity and public benefit of its takeover of a local utility.
“On the three public necessity elements that must be established under Section 1240.030, the presumption in Code of Civil Procedure §1245.250(a) usually applies: ‘Except as otherwise provided by statute, a resolution of necessity adopted by the governing body of the public entity pursuant to this article conclusively establishes the matters referred to in Section 1240.030.’ On the ‘more necessary public use’ question, the presumption in Code of Civil Procedure §1240.650(a) usually applies: ‘Where property has been appropriated to public use by any person other than a public entity, the use thereof by a public entity for the same use or any other public use is a more necessary use than the use to which such property has already been appropriated.’”
Since 1992, however, Judge Alvarez said, municipalities, agencies and governmental entities can no longer presume that their authority is paramount and that they will automatically prevail over the interests of the private sector.
“However, these ordinary presumptions do not apply in this case,” Judge Alvarez wrote. “Senate Bill 1757, which was signed into law by Governor Pete Wilson on September 21,1992, amended the prior versions of both Section 1245.250 and Section 1240.650. SB 1757 changed the law by granting the owner of ‘electric, gas or water public utility property’ (Code of Civil Procedure §1235.193) the right to rebut the presumptions that formerly were ‘conclusively established’ in favor of the public entity. Here, Liberty’s property is ‘water public utility property’ because it is appropriated to a public use by a water corporation as defined in Public Utility Code §241.”
There is no doubt, Judge Alvarez said, that “Liberty’s property is appropriated to public use,” but the judge said, that does not alone make the town eligible to seize the company and its assets.
“The town cites authority on what constitutes a public use, which would be relevant if public use were contested,” Judge Alvarez wrote. “Here, however, there is no dispute that providing water to Apple Valley’s customers is a public use, regardless of whether the water were to be provided by Liberty or by the town. The question is not the existence of a public use, but whether provision by the town is a ‘more necessary public use’ than continued provision by Liberty. Where property which has been appropriated to a public use is electric, gas, or water public utility property which the public entity intends to put to the same use, the presumption of a more necessary use… is a rebuttable presumption affecting the burden of proof, unless the acquiring public entity is a sanitary district exercising the powers of a county water district pursuant to Section 6512.7 of the Health and Safety Code. As the court previously explained in its October 31, 2018 ruling: ‘As a result of the 1992 amendments to sections 1240.650 and 1245.250, in an eminent domain proceeding initiated by a public entity to obtain a public utility from a non-public utility, such as here, the conclusion that the use by a public entity is a more necessary use is rebuttable. Similarly, the resolution of necessity creates a rebuttable presumption that the three necessity elements of section 1240.030 are true.”
Judge Alvarez said that the town misrepresented elements of Liberty’s case in its post trial brief, and that it changed its position as the trial progressed.
“At trial, the town introduced extensive expert testimony by Craig Close about the condition of the water system,” Judge Alvarez wrote. “Mr. Close inspected the system over Labor Day weekend 2019 – less than two months before the start of trial – and presented a series of ‘inspection reports’ and testimony highly critical of the water system. By way of example, according to Mr. Close, the Bell Mountain Tank is ‘in poor/severe condition’ and needs to be rehabilitated or replaced; Wells 7R, 34, and 25 are all in ‘poor condition’ and should be replaced; and the Jess Ranch Booster Station is also in ‘extremely poor condition and needs to be replaced.’ Mr. Close also showed a multitude of photographs of peeling paint and criticized the appearance of several components of the water system. Mr. Close’s opinions regarding supposed defects or shortcomings in the system are diametrically opposed to the town’s project as reviewed above – to acquire the water system and make no changes to it. Not only was Mr. Close’s testimony inconsistent with the town’s project, he also made no effort to determine how much it would cost the town to make any of the changes he opined were needed. The town argues that Mr. Close’s testimony may be considered to rebut Liberty’s evidence that the system is well-run operationally. The court agrees, and has considered Mr. Close’s testimony for this purpose. However, Mr. Close’s myriad criticisms of the water system cannot be used to affirmatively support the town’s right to take the system because the town’s project does not include any changes to the system or its operation, and the town cannot modify its project based on Mr. Close’s eve-of-trial system inspection. The town could have undertaken a thorough inspection of the Apple Valley water system and compiled a list of any system changes it believed were needed before it filed this action. The eminent domain law includes extensive procedures for a condemnor like the town to ‘enter upon property to make photographs, studies, surveys, examinations, tests, soundings, borings, samplings, or appraisals or to engage in similar activities’ before filing an eminent domain lawsuit. See Code of Civil Procedure §§1245.010 et sequitur. The town did retain an engineering consulting firm before it adopted its resolutions of necessity in November 2015. Everything Mr. Close did over Labor Day weekend 2019 could have been done by the town before it filed its complaint more than three years earlier. Then, if it chose to, the town could have included the repair of any alleged system deficiencies in its ‘project’ and analyzed them in its environmental impact report. Having eschewed that opportunity, the town cannot engage in a post-hoc attempt to change its project. The town also cannot justify its right to take the system based on the possibility of a future plan to modify the system or its operations.”
According to Judge Alvarez, “Liberty has rebutted the presumptions that the public interest and necessity require the project and that the project is a more necessary public use of liberty’s property. The court sustains Liberty’s objections. The preponderant evidence at trial shows that the public interest and necessity do not ‘require’ the town’s project – i.e., the acquisition and operation of the Apple Valley Water System, with no changes to it.”
Judge Alvarez said, “The nonexistence of the first public necessity element is demonstrated by evidence in three broad areas: (1) Liberty has operated a safe and reliable water system, while the town has no experience, but only a hope, of doing so; (2) the regulatory oversight provided by the California Public Utilities Commission is more stringent than the oversight that would apply to town ownership of the system; and (3) there is a substantial risk that the water system will be imperiled and the ratepayers will be harmed if the town were permitted to take over the system and supplant regulation by the Public Utilities Commission.”
To this end, Judge Alvarez said, “Liberty has operated a safe and reliable water system; allowing the town to acquire it would create substantial risks to continued effective operations. Liberty has a highly skilled work force that has operated the system with a perfect water quality record. Over the past 30 years, the Apple Valley Water System has had zero water quality violations. This achievement differs markedly from many of the water systems that serve adjacent communities.”
Furthermore, according to Judge Alvarez, “The town’s plan for operating the water system presents potential risks to public health and safety. Town Manager [Doug] Robertson conceded that he ‘can’t imagine’ that anyone could run the system better than the Liberty employees are currently operating it. The town tacitly concedes the high quality of the system’s current operations by its ‘plan’ to hire all of Liberty’s current staff to run the system. But there is a substantial risk that the town’s plan will not be successful, which creates a consequent risk to public health and safety and to the ongoing reliable delivery of water to the system’s customers. Mr. [Michael] Molinari, a 14½ year employee in the town’s public works department, acknowledged there is no one at the town competent to operate a water system, and Mr. Robertson admitted that it is ‘undetermined’ who would run the system if the town were to acquire it. Mr. Close, the town’s expert, prepared a document that actually listed Liberty’s Greg Miles as ‘town engineer,’ but Mr. Miles testified he ‘would not work for the town.’
Judge Alvarez continued, “In sum, the court finds that a skilled and experienced workforce has operated the water system in a manner that has protected public health and safety for many decades. Liberty proved that the town has no in-house capability to run a complex water system, and is banking on the unlikely scenario that it will be able to hire nearly all of Liberty’s Apple Valley employees to continue to run the system successfully. Liberty has operated and maintained the system effectively and efficiently. The town’s proposed acquisition is not ‘required’ by public interest and necessity and would not be a ‘more necessary’ public use than the use to which Liberty’s property is appropriated. The evidence has revealed no substantial problems with the operation or maintenance of the Apple Valley water system.” This included, Judge Alvarez said, the “ability to meet or exceed critical conservation goals established by the State [of California].”
The town engaged in a disingenuous/intellectually dishonest effort to discredit Liberty, Judge Alvarez indicated. Indeed, Alvarez determined, the irresponsibility that the town said Liberty had engaged in was in actuality an irresponsible land use decision made by the town.
“The town argues that the two Desert Knolls tanks overlook numerous homes and ‘the results would be catastrophic’ if the tanks were to rupture,” Judge Alvarez wrote. “But the evidence showed that the tanks were there first: the Desert Knolls tanks were constructed in 1949 and 1988, and most of the homes below the tanks were built after 1994.The town was incorporated in 1988, meaning it was the town that approved the construction of most of the homes built below the tanks after 1994. Having approved the homes below the tanks, the town’s speculative argument of a ‘catastrophe’ if the tanks were to fail is entitled to little weight.”
The town’s witness, Close, was mistaken, disingenuous or outright purposefully misleading when he testified that Liberty was in danger of being unable to meet maximum day demand and peak hour demand, Judge Alvarez opined.
“It appears Mr. Close’s analysis of system capacity and demand was flawed,” according to Judge Alvarez.
In actuality, Judge Alvarez found, it was the town that would be overwhelmed by and not be likely to meet the demands of maintaining the water system at a level that would ensure adequate provision of water service to the town’s residents.
Noting “The Apple Valley water system has 470 miles of underground distribution and transmission mains, which are in constant need of maintenance and replacement” and that the “majority of the capital assets in a water system consists of buried pipe, out of sight to customers but constantly degrading,” Judge Alvarez stated, “There is a substantial risk that the town would fail to commit the needed level of capital improvements and maintenance to the system. While the town does not plan to change the level of investment, there is a substantial risk that it will not be able to match the capital expenditure level made under private ownership. The evidence demonstrated that owners of nearby municipally-owned water systems have invested far less than Liberty in their systems. From 2012 to 2018, capital investment in the Apple Valley system was twice (202 percent) the system’s deprecation. In contrast, the nearby municipally-owned systems (Victorville, Hesperia, Adelanto, and Helendale Community Service District) made capital investments of just 20 percent to 48 percent of the systems’ depreciation. Again, the town itself has no track record of capital expenditure levels on a water system. But the town’s record with its own sewer system shows the same pattern of investment below the rate at which the assets are depreciating, like the water systems in neighboring communities. From 2011 through 2018, the value of the town’s sewer capital assets, net of depreciation, dropped from $32.6 million to $22.5 million.”
Judge Alvarez said concern with regard to “insufficient investment under town ownership is well-founded. If the town were to acquire the water system, there is a risk that its capital investments will not keep up with the system’s depreciation, similar to the performance of the other nearby municipally-owned systems and the town’s own performance with its sewer system. Such under-investment would cause the system to degrade, to the detriment of the system and, ultimately, the detriment of its customers.”
Moreover, according to Judge Alvarez, permitting the town to take ownership of the water company would run the risk of having decisions pertaining to the operation and maintenance of the water system and its assets being politically motivated rather than practical.
“Replacing systematic and skilled regulatory oversight by the Public Utilities Commission [PUC] with politically motivated control by the town council is not in the public interest,” Alvarez wrote. “As an investor-owned utility, Liberty Apple Valley is subject to thorough regulation by the California Public Utilities Commission. If the town’s proposed project were to proceed, the water system would be overseen by the town council rather than the PUC. The parties both presented evidence regarding the comparative merits of PUC regulation and town council oversight. The court finds that Liberty met its burden of proving that the town’s plan to jettison PUC oversight and replace it with town council oversight is not ‘required’ by the public interest and necessity and would not be a ‘more necessary’ public use. On the issue of oversight, the town is really objecting to existing California law. As a ‘Class A’ investor-owned utility, Liberty is subject to thorough and extensive regulatory oversight by the PUC’s Public Advocates Office. The adversary process used to protect ratepayers and set water rates is a strength of the PUC rate-setting system, not a justification to take Liberty’s system, as the town has urged in this case. The loss of such an extensive and skilled system of oversight would not appear to be in the public interest. Control by the town council leaves the water system vulnerable to political pressure to keep rates low, regardless of whether it is prudent in the short run or the long run. Town oversight is inclined toward short-term decision-making because town council members must run for reelection every few years. Naturally, voters want to pay less for water service, not more; and town council regulation is focused more on the short-term interest of voters than the long-term interest of water infrastructure. The pressure to keep rates low increases the likelihood that the water system’s buried capital assets will be run to failure, thereby creating risks to water reliability, water quality, and public safety.”
Judge Alvarez gave indication that the town had underestimated by at least $30 million the price of acquiring the water system.
Given the economies of scale that Liberty has in running a multitude of water companies, it will likely be able to deliver water to the residents and businesses of Apple Valley at a lower cost than the town would if it acquires the water system, Judge Alvarez ruled.
“When properly analyzed, Liberty’s water rates compare favorably to water rates charged by nearby municipally-owned water systems,” Judge Alvarez indicated.
In his conclusion, Judge Alvarez ruled “The court finds that Liberty, through evidence introduced during the court’s bench trial, has rebutted the presumptions established by eminent domain law for the taking of its property for use as a municipal water utility. In particular, Liberty has disproved that 1) the public interest and necessity require the town’s project; 2) the town’s project is planned in the manner that will be most compatible with the greatest public good and the least private injury; and 3) the use for which the town seeks to take Liberty’s property is a more necessary public use than the use to which Liberty’s property is presently devoted. Therefore, Liberty’s objections to the town’s right to take the Apple Valley water system are sustained. Finally, the court shall find for Liberty and shall dismiss this action.”
Unclear at this time is whether Liberty, as the prevailing party, will seek from Judge Alvarez a ruling that Apple Valley pay for the legal fees the company sustained in the action. Nor is it clear whether Judge Alvarez will grant such a motion if it is made, what Liberty’s legal bill in defending against the eminent domain action was and what the town’s legal costs in pursuing the action have been. Town officials had not responded by press time to a Sentinel request for a tally of the town’s legal expenses in its effort to force the seizure of the water company’s assets in the town through the condemnation process.
A poorly-informed estimate is that the legal cost on both sides ran from somewhere between $4 million to $6 million, that is, $2 million to $3 million for the town and $2 million to $3 million for Liberty, beginning with preparation for the two resolutions of necessity adopted by the town council in November 2015.
The town is represented by the law firm of Best Best & Krieger. Notably, the ruling by Judge Alvarez was the second time in five years that Best Best & Krieger fell short in a municipal eminent domain takeover effort targeting a water company. In November 2016, Los Angeles Superior Court Judge Judge Richard Fruin ruled against the City of Claremont in its eminent domain suit aimed at seizing the Golden State Water Company’s water system that serves the City of Claremont. Best Best & Krieger was legal counsel to the City of Claremont in that case.
Leading Liberty’s legal defense in the suit was real estate litigation attorney George Soneff along with real estate litigation partners Ed Burg and David Moran, and associate Lauren Fried of the Los Angeles-based law firm of Manatt, Phelps & Phillips, LLP. It was Manatt, Phelps & Phillips which successfully represented the Golden State Water Company in its defense against Claremont’s takeover effort, as well.
According to Manatt, Phelps & Phillips, “Evidence at trial showed that the Town of Apple Valley expected to pay $100 million for the water system if it prevailed, while Liberty Utilities pegged the system’s value as high as $243.8 million. Central to the town’s claim was the presumption that municipal ownership would lead to lower water rates and increased transparency.
“Ultimately, Judge Alvarez concluded that Liberty demonstrated Apple Valley residents would be better served if Liberty continued to own and operate the system, and would be worse off if the town were to take ownership of the system,” the Manatt, Phelps & Phillips statement continued. “In his decision, Judge Alvarez looked to Liberty’s spotless water quality record in Apple Valley, its stellar employees and staff (who testified they did not want to work for the town), and record of financial stability and capital investments. The town’s lack of experience operating a water system and failure to show that water prices would indeed go down under municipal ownership also played a role in Judge Alvarez’s decision.”
Greg Sorensen, Liberty’s West Region president, said, “On behalf of our team of dedicated professionals who take great pride in providing safe water and reliable service in Apple Valley, we appreciate the judge’s tentative statement of decision that rejects the town’s attempt to take the water system by eminent domain. The ruling confirms that Liberty has operated transparently and in the best interest of the community, and that the town’s lawsuit will be dismissed.”
Apple Valley Mayor Curt Emick said, “We are extremely disappointed in the court’s tentative decision. We hope the judge considers the town’s arguments and issues his final ruling to support the town’s effort to acquire the system.”
Accompanying Emick’s statement was one from the town leadership that “If the decision against the town’s proposed acquisition is made final, the town council will consider its options, including appeal.”
David Eshleman, the hard-driving grandson of German immigrants to Fontana who grew up in the steel town and came to embody its blue collar spirit as much as anyone and then served two terms as its top political leader, has passed into eternity.
The palette from which Eshleman’s 74 years of life was painted was a variegated one, and while each of the multiple labels he wore are apt definitions – entrepreneur, builder, landowner, developer, grappler, meatmarketer, father, husband, race car driver, race team owner, activist and politician – no single description suffices in capturing his essence.
A Fontana native, Eshleman was born on February 20, 1947, one of seven of Albert “Whitey” Eshleman and Dorothy Eshleman’s children. Eshleman’s maternal grandparents were Ross and Violet Gesler, who after immigrating to America had settled in Fontana. They were horticulturalists and in their greenhouses on Arrow Highway they crossbred flowers, the most notable creation of which was the Ross Gesler orchid.
Eshleman grew up on the family ranch property in South Fontana with brothers Albert, Jim, Bill and Richard and sisters Sally and Donna.
What started as one of Whitey Eshleman’s secondary or even tertiary pursuits was the provision of Thanksgiving and Christmas turkeys to the local populace, and it was on this turkey farm that young David Eshleman was instilled with much of his work ethic and an understanding of the rudiments of a consolidated business operation.
At Fontana High School, Eshleman was a member of the wrestling team, competing within the 115, 123 and 130 pound weight classes.
Fontana, the home of the Kaiser Steel Mill, was also the birthplace of the Hells Angels, and in the early to mid-1960s, Fontana was host to a drag racing strip, referred to variously as Mickey Thompson’s Fontana International Dragway or as Fontana Drag City. The Fontana Drag Strip was a venue in the National Hot Road Association circuit. In addition, there were several remote and more obscure streets in Fontana that served as a venue of unlicensed and illicit street racing. While Eshleman did not participate in those races, he was an occasional spectator.
Upon graduating from high school, Eshleman worked a series of jobs for about a year, and thereafter enrolled at Chaffey College, pursuing his diploma in general education. Eshleman wrestled on the Chaffey College Team, in the 138 pound weight class.
While at Chaffey’s Alta Loma campus, he took a few courses in automotive technology.
One of the automotive technology instructors at Chaffey was Sam Contino. Contino and the students in his orbit at that point were picking up enthusiasm for the advent of the California Motor Speedway in Ontario, which shortly after its completion in 1969 would host the inaugural California 500. Contino successfully prevailed upon the Chaffey College administration to go along with the creation of a racecar technology program within the automotive technology department. Eshleman was among those students caught up in the frenzy. He began racing in 1968.
A major project undertaken by the Racecar Technology Program at Chaffey College was the modification of a factory Ford Mustang, which was destined for a Sports Car Club of America competition at Ontario Motor Speedway in 1971. The Ford Motor Company was so impressed with what the Chaffey team had accomplished with the Mustang that it sponsored the team’s further efforts. While driving the Mustang, Eshleman set the world speed record for a modified street car, reaching 185 miles per hour.
On a relatively consistent basis, over the next 13 years, Eshleman raced at Riverside Speedway and other venues, chalking up a sting of regional championships in both the sports car and Formula A classes.
Involved in the racing world, Eshleman found employment with Hooker Headers, an Ontario-based company that specialized in the production of air-pushing exhaust systems intended for high performance vehicles that were designed to eliminate backpressure and increase horsepower.
While Dave Eshleman was at Chaffey College, embarking on his own professional career and starting a family, at the Eshleman Ranch, Whitey Eshleman’s turkey farm grew in popularity year after year, necessitating that he obtain a provisional slaughtering and dressing license to package turkeys, which were then sold out the door to local buyers and moved to market. In 1973, Whitey was electrocuted in a mishap at the packing house. His widow, Dorothy, pressed on. Operations at the ranch were overseen by Dave. A few years later, Eshleman bought the ranch from his mother, who moved to Oak Hills.
In 1983, the California Department of Food & Agriculture and the San Bernardino County Department of Health gave Eshleman a permit and license to operate the slaughterhouse on a permanent basis. Thereafter, his operation became a primary outlet for beef brought in from the Chino Agricultural Preserve.
With his center of operations now at the ranch, which technically lay just south of the Fontana City Limits in the unincorporated county area that was considered to be part of Fontana’s sphere of influence north of the Riverside County boundary, Eshleman began buying property nearby, picking up a parcel here and a parcel there, becoming one of the primary landowners in the unincorporated county area as well as south Fontana.
By 1985, both the Ontario Motor Speedway and the Riverside Speedway had been shuttered. With legal venues for racing locally limited, Eshleman, at the age of 38, was unwilling to participate in illegal street races at his age. Focused more on raising his family and his business interests, Eshleman pretty much stopped racing at that point.
In the 1980s, the City of Fontana was on the ropes structurally and financially. The Kaiser Steel Mill, which had been the major financial engine of the city for some time but which had been an ecological bane because of the pollutants that belched from its smokestacks and coke ovens, closed in 1983. Jack Ratelle, who had begun as Fontana city manager in 1973, aided and abetted by several self-serving and corrupt members of the city council over the years, had engaged in a series of depredations by which developmental interests had been given a free rein to build both residential and commercial and sometimes industrial subdivisions without providing corresponding infrastructure improvements. In return for being allowed to skip out on providing that infrastructure to accommodate that building, the developers plied Ratelle with bribes and kickbacks. Sales tax and property tax springbacks to developers and the political cronies of the city council and the mayor had nearly bankrupted the city treasury, and the city was bound by commitments that hamstrung the city financially, indeed to the point of City Hall being crippled altogether. In 1987, the city council, members of which were yet beholden to Ratelle, were nevertheless forced by the events overtaking the city to fire the incorrigibly corrupt city manager, at which point the reformist team of John O’Sullivan. Ratelle’s replacement as city manager, and Finance Manager Jim Grissom were brought in to stabilize the situation, stem the giveaways and stanch the hemorrhaging of red ink into the city’s books.
Then-Mayor Nat Simon, whose first run on the Fontana City Council had ended in scandal in 1968 but who made a political comeback by defeating Frank Horzen in the 1982 Fontana mayoral election, had come to an accommodation with Ratelle during his latter two terms as mayor in the 1980s. In his final two years in office, Simon looked on in dismay as O’Sullivan and Grissom were dismantling the graft-encrusted arrangements that had enabled Simon’s cronies and the business interests who had been paying off Ratelle for years in their exploitation of the city.
Though many assumed, because of his entrepreneurial orientation, that Eshleman was a Republican, he was in fact a Democrat, and a serious Democrat at that. In 1989, while in contact with the Democratic Party, Eshleman began making preparations to run for the Fontana City Council the following year. In close consultation with Simon, a Democrat, and aided by Democratic political consultants Richard Rodriquez and Bill Greenberg, Eshleman emerged victorious in the November 1990 election. In the same election, however, Simon was ousted by Bill Kragness, an incumbent member of the city council.
At that stage, Fontana was yet seeking to come to terms with the legacy of Ratelle’s 14 years as city manager. One of those burdens was the way in which Ratelle had cleared the way for the Ten Ninety Corporation to proceed with its development of the 9,100-unit Southridge Project in the early 1980s without that company having to pay for the infrastructure at that massive subdivision. Ratelle had set up for himself a credit line at the MGM Hotel in Las Vegas. The Ten Ninety Corporation then endowed that credit line with periodic payments. Ratelle made weekly or bimonthly trips to Las Vegas, checking into the MGM Grand, where he would collect the most recent installment of money put into his credit line, then make himself visible in MGM Casino, generally at the roulette and dice tables. Back in Fontana on weekdays, he would regale those throughout City Hall with tales of how he had won so much money or had lost so much money over the weekend. In tandem with Neil Stone, then the city’s redevelopment agency director, Ratelle arranged for the redevelopment agency to underwrite the full cost of infrastructure at the Southridge project, which ran to a $120 million price tag in 1982 dollars. This entailed the redevelopment agency securing $55 million in loans from the Glaziers Union and $65 million in bond financing in the form of “certificates of participation” not approved in a vote of Fontana citizens but rather through a vote of the city council. Prior to that vote, Ratelle, either by having the city hire the inveterately unemployed son-in-law of one councilman or ensuring that the welding business owned by another councilman was given plenty of work or by spreading around some of the money he brought back from Las Vegas to Mayor Simon or another councilmember, Ratelle ensured that the council voted to approve having the redevelopment agency pay for the streets, curbs, gutters, sidewalks, sewers, strormdrains, culverts, streetlights and other improvements needed for the Southridge project to be built. To service this indebtedness to the Glaziers’ Union and the holders of the certificates of participation, the city of Fontana was committed for 30 years – until 2013 – to make $3.12 million in bond payments every quarter, that is $1.04 million per month or $12.48 million per year. This deal and others like it made O’Sullivan’s task extremely difficult, and in three years on the job he encountered a depth of challenges most city managers do not see in a decade. By the time Eshleman was sworn in, O’Sullivan was a shambles of a man.
During his first term in elected office, Eshleman found himself isolated on the city council, as Kragness led the panel, and another incumbent, Gary Boyles, was part of the bulwark that had been part of the move to shed Ratelle. This had put Boyles in direct conflict with Simon, and Boyles’ enmity toward Simon carried over toward Eshleman, who was being advised by Simon throughout much of his first term on the council. Eshleman, a newcomer to political office, was unaware of the degree to which Ratelle had looted the city coffers during his tenure as city manager, and he did not appreciate the degree to which Kragness and Boyles at that point had come to recognize that Ratelle had duped them while they were relying on his guidance of the city. Nor was Eshleman aware of Simon’s connivance with Ratelle during the first five years of Simon’s last eight years as mayor. This put Eshleman at severe odds with his council colleagues at that time, and his difficulty in this regard deepened when John Roberts, who worked with Boyles as a county firefighter in Fontana, was elected to the city council 1992.
An important development during Eshleman’s first term in elected office was the hiring of Greg Devereaux as redevelopment agency and housing director in 1991.
Ultimately, O’Sullivan was forced out by the city council majority, including Eshleman, which pleased Simon. O’Sullivan was succeeded by Russ Carlsen, who endeavored to come to terms with the city’s intractable financial issues, but was as overwhelmed by them as was his predecessor. Carlsen lasted for only a brief span. In turn, he was replaced by Jay Corey, who likewise had a short tenure in the city manager’s post. Thereafter, in 1993, the council elevated Devereaux to the city manager’s post.
In 1994, Eshleman successfully vied for mayor. That same year, Devereaux’s utter brilliance in managing a large organization was in evidence. By a stroke of timing, luck and his initiative and drive which made him Fontana’s mayor at that point in the city’s history, Eshleman was the political beneficiary of Fontana’s promotion of Devereaux, who at that point clued Eshleman into the degree to which Ratelle and Simon had damaged the city. In 1997, the City of Ontario lured Devereaux away from Fontana with an even more lucrative offer for him to be city manager there. Nevertheless, for the first two-and-a-half years of Eshleman’s first term as Fontana mayor, his political leadership of Fontana came to be seen as synonymous with Devereaux’s managerial and administrative leadership of Fontana. Devereaux, and by extension Eshleman, grappled with, and simultaneously exhibited command and confidence in facing, the seeming insurmountable financial problems that had put Fontana at the bottom of a pit. From 1994 until 1997, the Eshleman/Devereaux Team not only succeeded in lifting Fontana out of the abyss, but managed to put the city on firm financial footing that would persist for more than two decades – to the present. With its current 217,237 residents, Fontana is the second largest city in terms of population in San Bernardino County with the third-largest budget of the county’s 24 municipalities and the fifth most dynamic economic engine countywide.
In 1998, Eshleman was handily reelected mayor, garnering 67.2 percent of the vote.
As Fontana’s mayor, Eshleman was Fontana’s representative to the San Bernardino Association of Governments, which served as the county’s transportation agency, and the Southern California Association of Governments, a regional planning authority.
In his mayoral capacity, Eshleman exhibited the same attitude toward action and results as he did in his daily personal and professional life. Whatever one might say about Eshleman, lazy he was not. At the Eshleman Ranch and at the slaughterhouse, he would typically be seen among his employees and crews working on various jobs and projects, and was identifiable as the most energetic among them. Over the years, tractor-excavators and small bulldozers were among the pieces of equipment at the Eshleman ranch. As often as not, Eshleman was at the helm of these. So it was when Eshleman was mayor. He would abide by making a contemplative consideration of an issue, but once the discussion was over, he called for action. He was not indulgent of procrastination.
Well prior to his election to the city council, city officials had been looking at how the former Kaiser Steel Mill property was to be reclaimed and redeveloped. At one point, there was discussion of converting some of the land to a sports stadium where the Raiders NFL Team, which originated in Oakland, later moved to Los Angeles in 1982, moved back to Oakland in 1995 and in 2020 moved to Las Vegas, would relocate. That never materialized. But that discussion enlivened Eshleman, who had by that point drifted back to competitive racing, including Sports Car Club of America events at Toyota Speedway in Irwindale and Orange Show Speedway in San Bernardino. He pivoted from the concept of an athletic stadium in Fontana and alighted, based on his enthusiasm for racing and the loss more than a decade earlier of the Ontario Motor Speedway, to a proposal to create a racing venue at the north end of the steel mill property. He opened up a dialogue with motorsports mogul Roger Penske, and that led to an arrangement with Penske’s company to develop the California Speedway. Known for sponsorship reasons as the Auto Club Speedway, the track was completed in 1997 and exists as the landmark by which Fontana is now best known to the rest of the world.
In 1999, Eshleman created his own racing team, Eshleman Racing, which included his “Spirit of Fontana” car. In 2001, at the age of 54, he competed in the Winston West race. The team attracted a number of up-and-coming drivers, including Ryan Partridge, Ryan Vargas, Charles Price, Linny White, David Gilliand, and his granddaughters McKenzie and Kayla Eschleman.
On September 11, 2001, Eshleman was among a convocation of the nation’s mayors in Washington, D.C. when four planes were commandeered by terrorists carrying out suicide missions. Two of the planes crashed into both of the World Trade Center towers in Manhattan. A third flew into the Pentagon in Washington, D.C. A fourth plane did not make it to its intended target when its passengers stormed the cabin, forcing the plane into a crash into a field near Shanksville, Pennsylvania, one that was fatal to all aboard. The mayoral convention was abruptly interrupted, as all of those in attendance were rushed to a safe place.
In 2002, Fontana Councilman Mark Nuami, funded by a consortium of developers, moved to challenge Eshleman as mayor. Preparatory toward the race, Nuami embarked on a number of attacks against the incumbent mayor. One of those consisted of questioning the 2000 appointment of Eshleman’s wife, Pamela Anderson Eshleman, to the Fontana Planning Commission. In response, she simply resigned from the panel.
Another political sortie Nuami made against the mayor was to question why Eshleman had not sought to annex some 30 acres of property he owned in the unincorporated county area south of the Fontana City Limits that fell within Fontana’s sphere of influence into the city. In response, Eshleman noted that as mayor, his taking any action with regard to his property would constitute a conflict of interest.
Nuami’s strategy of insinuating conflicts of interest against Eshleman were curious, given the consideration that he had a glaring conflict of interest of his own, which consisted of the company Nuami worked for, Iteris, having a multi-million dollar contract with the City of Fontana.
Ultimately in the 2002 Fontana mayoral election, which featured Eshleman, Nuami and a third candidate, Scott Larson, Nuami edged Eshleman 47.4 percent of the vote to Eshleman’s 41.6 percent, with Larson capturing 10.8 percent.
Liberated after 12 years in politics, Eshleman involved himself deeper into racing. In 2003, he ranked high enough to get invited to the inaugural Showdown Series at Irwindale. In 2004, he made his first and last Busch Series start, at the Fontana track, driving for Ware Racing Enterprises. Starting at 41st in the field, he was black flagged early. He made it to 40th by the end of the race.
He continued to race in the K&N Pro Series until his retirement from racing, at the age of 61, in 2008. At that point, his three sons, Matthew, then 17, Michael, then 37, and Jeff, then 36, were driving for Eshleman Racing.
Eshleman was involved as an owner or operator of Bright Minds Unlimited, the Eshleman Meat Company, Eshleman Enterprises, Revenge Mortorsports, Inc. and Eshleman Racing, for all of which he was listed in state documents as president. He was also listed as an officer with Eshleman Cardenas LLC in California. At different times, he made a foray into the publishing world in one capacity or another, first with Fortunado Publications’ The Mirror-Dispatch and Daily Planet Publishing’s Inland Empire Business Journal.
In recent years, despite health challenges, he remained active.
Eshleman died in an accident/rollover at the Eshleman Ranch while driving a tractor.
Jeff Eshleman said, “My dad was the hardest working person I’ve ever known in my life. It didn’t matter if he had to wake up at 3 a.m. in the morning and keep going until 12 midnight, he just did whatever he had to do to get the job done. I learned how to do a whole lot of things from him, how to do all sorts of household repairs, fix broken water pipes, dig out to fix a cracked foundation, work on an automobile in the garage. I think he was happiest when he was out working on the family farm, disking a field or leveling out ground with a tractor. He taught us all to just be honest and put in a hard day’s work so you can live, so you can survive.”
Matthew Eshleman concurred.
“My dad did not want to go on vacation or take time off,” Matthew said. “He enjoyed his work and he led by example. I learned from him that when you enjoy what you’re doing, it’s not really work. He was happiest when he was working, when he was out plowing a field.”
Jeff told the Sentinel, “What sticks out for me about his role as an elected official is the pride he had for the City of Fontana. He was home grown, and he really saw that there are a whole lot of good things about this place. He had an idea of what was a good direction for the city, and even though he didn’t always get his way when he was on the council and was mayor, some of the time he was able to move the city forward, toward the goals he had in mind, the direction he thought it should go. He took a lot of pride in that. I think it was nice on his heart to be involved in that way. You could see it in his eyes when we would drive around the city.”
For him personally, Matthew Eshleman said, he holds his father’s political involvement less dear than the time he spent with him far removed from civic activities.
“What I remember most fondly is watching my dad at the Orange Show Speedway in San Bernardino and racing with my brothers.”
Asked how his father should be remembered, Jeff Eshleman said, “To put it in a nutshell, for the people who didn’t know my dad, I think the easiest thing to say is he was the racing mayor of Southern California.”
The Colton Joint Unified School District has sued the County of San Bernardino over the board of supervisors’ April 6 approval of Chandi Group USA’s truck stop to be located at 10951 Cedar Avenue, at the southeast corner of Cedar and Santa Ana Avenue in the unincorporated county community of Bloomington, three-quarters of a mile south of the I-10 Freeway.
The 8.9-acre site where Chandi Group USA intends to locate the truck terminal is immediately adjacent to 28 acres of property owned by the district upon which it had future intentions of building a junior high school. The character and intensity of Chandi Group USA’s Bloomington Commercial Center has significantly changed since it was formerly presented as a proposal to the county in October 2019. At that time, Chandi Group USA said it wanted a zone change and general plan amendment so it could undertake a commercial project that was to have a large restaurant as its centerpiece and which would involve some retail units, two fast food outlets and a gas station. The Bloomington community was generally supportive of that concept.
Multiple versions and plan redrafts followed, in the midst of which opposition to the project formed. According to those project opponents, the facility is most accurately described as a truck stop.
On April 6, 2021, the San Bernardino County Board of Supervisors gave unanimous approval to the project. Under the configuration approved, the project is to consist of 260 parking spaces including 149 for cars, 36 to accommodate trucks, and 75 for recreational vehicles or smaller or mid-size trucks, a 9,900-square-foot convenience market, two fast-food drive-thru restaurants, a 2,400-square-foot office and storage building, a guard shack, a 4,800-square-foot maintenance building with four repair bays, truck scales, seven diesel fuel pumps, eight gasoline pumps and above-ground fuel tanks. In the project’s final form, the restaurant, the project’s original selling point, was dispensed with altogether.
The property was zoned for low density residential use, in which the minimum density is to be no greater than a single unit per acre, with agricultural uses permitted on the property. The project proposal called for a zoning amendment altering the residential land use to commercial. In approving the project, the board of supervisors granted that zoning amendment and a general plan amendment. In carrying out that action, the board signed off on the project’s environmental certification as well. Development projects of any significance in California must be processed for approval in accordance with the California Environmental Quality Act. While the board of supervisors under the California Environmental Quality Act had the option of requiring any of a series of environmental reviews, with the most comprehensive of those being a full-blown environmental impact report in which a thorough analysis of the project would have been carried out accompanied by an exacting set of measures to offset any untoward environmental consequences, the board of supervisors chose instead to utilize the least intensive form of environmental certification, that being a mitigated negative declaration, which was simply a finding by the board that there would be no adverse environmental aftermath to the project being built or that if there was, that negative impact would be adequately addressed by the conditions of approval.
Even before the project was approved, there were residents of Bloomington and others who were asserting that the impacts of the project, including its deleterious effects with regard to air quality, water quality and its burden upon infrastructure in the area, particularly roads, as well as the increase in vehicular and truck traffic it would create rendered the project, if not inadvisable, then one for which the project proponent should have been required to do a full environmental impact report.
The owner of Chandi Group USA, Nachattar Singh Chandi, has made substantial contributions to the political war chests of supervisors Paul Cook, Dawn Rowe and Joe Baca, Jr., and has made a commitment to back the future political endeavors of Board of Supervisors Chairman Curt Hagman. Baca’s acceptance of the project was considered key because Bloomington falls within the county’s Fifth Supervisorial District. Baca is the Fifth District supervisor.
In return for Chandi’s generosity toward them and the assistance he has provided in perpetuating their political careers, members of the board of supervisors pressured the county’s land use staff, including Heidi Duron, the county’s planning director, to gloss over the project’s environmental drawbacks, and provide the project with a staff endorsement before it was considered by the county planning commission at its February 18 meeting and before the board of supervisors considered it on April 6. The land use services department acceded to that pressure, such that its report on the project convinced the planning commission, at its February 18 meeting, to vote 4-to-0 to recommend to the board of supervisors that it approve the project, over the objections of six Bloomington residents who at that time spoke in opposition to the project. Kareem Gongora, Baca’s appointment to the commission, abstained.
Substantial opposition to the project by Bloomington residents was registered at the April 6 board meeting, but the expression of those sentiments did not dissuade the board from approving the project.
In its lawsuit filed in San Bernardino County Superior Court on May 5, 30 days after the board’s vote to approve the project, the Colton Joint Unified School District calls into question the thoroughness of the county’s evaluation and consideration of the project proposal, and the suit seeks a court order that the county rescind the approval given to the project so that a full environmental impact report is prepared before it is reconsidered.
In addition to owning the property abutting the truck stop site, the school district has two elementary schools — Crestmore and Walter Zimmerman — within a quarter-mile of the project site, and operates Slover Mountain High School, which is roughly a half-mile north.
According to the suit, the county failed “egregiously by not providing any analysis or mitigation pertinent to school uses,” in a way that “the county ignored the district’s schools altogether,” by engaging in “scant analysis and fig leaf mitigation.”
County land use staff, in preparing the documentation for the Chandi Group USA’s truck stop, and the board of supervisors, by approving the project, which entailed an alteration of the long-existing zoning at the site, the lawsuit states, ignored entirely the incompatibility of uses between a truck stop and schools where hundreds, indeed thousands, of students will be in attendance on a daily basis during weekdays while school is in session. The county, according to the lawsuit, “is laying the groundwork to transform significant quantities of land in the immediate vicinity of several schools into a trucking, commercial, and logistics hub.”
A central element to the lawsuit is the district’s request for an environmental impact report relating to the project before it is allowed to proceed.
During the April 6 hearing, Board Chairman Curt Hagman went out of his way to prevent Colton Joint Unified School District Superintendent Dr. Frank Miranda from getting into the record prior to the board’s vote on the project the district’s request that Chandi Group USA be required to carry out an environmental impact report.
Miranda spoke to the board of supervisors during the hearing on the project on April 6 about what he said was his “concern for students attending schools operating near the proposed project.”
Before Miranda made his remarks, Terry Tao, an attorney representing the district with regard to real estate issues, obtained information to speak before the board and then ceded his time to Dr. Miranda. Miranda said the proximity of the truck stop to Crestmore Elementary School, a quarter of a mile away, Walter Zimmerman Elementary School, a quarter of a mile away, and Slover Mountain High School, a half mile away, presented safety issues. Miranda noted the district also owned the 28 acres immediately adjoining the project site. Miranda said the district had reviewed the project proposal and submitted in “good faith” input with regard to the project’s plans, expecting a substantive reply. Chandi Enterprises did not respond until March 1, he said, and he indicated the district’s “concerns still have not been addressed adequately.” Those concerns extended to, Miranda said, traffic, the physical endangerment of students, as well as air quality impacts and above-ground diesel tanks at the site.
Just as Miranda was getting to a request that Chandi Enterprises be required to do a complete environmental impact report for the project, he was cut off by Clerk of the Board Lynna Monell because his remarks at that point exceeded three minutes. Despite the consideration that Tao had conceded his speaking time to Miranda, Hagman, as board chairman, did not allow Miranda to continue, keeping Miranda from getting his request that an environmental impact report be completed for the project on the record.
Legal experts are divided as to whether Hagman’s gambit to get the request for a full environmental impact report onto the record prior to the vote will assist the county in staving off the school district’s legal challenge or not.
Under one legal theory, a governmental entity’s action in making a land use decision cannot be challenged after the fact if prior to the approval, at the time and place designated for a public hearing relating to the project approved, as in this case the Chandi Group USA Bloomington Commercial Center truck stop on April 6, the issue relating to the challenge is not raised. Thus, under this legal interpretation, the county can claim “Kings X,” by telling the court that the school district failed to make clear on the record its objection to the county’s use of a mitigated negative declaration rather than a complete environmental impact report to provide the environmental certification of the project.
A different interpretation, however, is that Hagman and Monell actively prevented Miranda from making the request by purposefully abbreviating and foreclosing his comments. Under this interpretation, Hagman having disregarded Tao’s request that his time to speak be provided to Miranda, would further establish that the county had purposefully precluded the request for a full environmental impact report from being lodged.
For the second time in four months, a sexual assault has been made on a female customer seeking massage services from therapists plying their trade in the Chino Valley, according to law enforcement authorities.
The May 3 incident involving Omar De Soto in Chino Hills and the January 17 matter in Chino in which Edgar Uriel Estrada was implicated have multiple similarities.
On January 17, 2021, a woman went to Massage Green Spa at 3926 Grand Avenue in Chino for a Sunday massage. According to the woman, her massage therapist attempted to rape her.
Thereafter she drove to the Chino Police Department headquarters, arriving at 1:49 p.m., where she reported the assault. Officers with the department set about trying to identify and locate the perpetrator.
Ultimately, the therapist was identified as Edgar Uriel Estrada, 27 of Moreno Valley. Estrada was summoned to the police station by a detective. When he arrived at the headquarters around 9 p.m. on the evening of January 17, a further investigation including questioning of Estrada took place. He was arrested at 9:29 p.m. and booked on suspicion of sexual penetration with force at 1:08 a.m. Monday, January 18 on $200,000 bail at the West Valley Detention Center in Rancho Cucamonga.
This week, county court records are not available to allow a determination of whether Estrada is yet in custody.
On May 2 another massage therapist from Riverside County forced himself sexually upon one of his customers in a fashion reminiscent of the previous assault.
In that case, a 49-year-old Chino Hills woman arranged to have a Sunday massage through an online company, Soothe, which sets up such services. Soothe sent 38-year-old Omar De Soto to the location specified by the woman.
After De Soto initiated the massage treatment, he sexually assaulted the woman.
Subsequently, the woman contacted the San Bernardino County Sheriff’s Department, which serves as the police department for Chino Hills. She told detectives she had been sexually assaulted in the course of the treatment.
The following day, Monday May 3, De Soto was taken into custody and jailed at the West Valley Detention Center, on suspicion of sexual assault. Initially held in lieu of $100,000, De Soto has been released after a bond was posted for him.
The San Bernardino County Sheriff’s Department’s effort to eradicate large-scale marijuana farms continued unabated last week, with deputies and detectives carrying out at least eight raids on unlicensed cultivation operations in the Eastern Mojave desert region.
That effort, involving more than a dozen sworn law enforcement officers, resulted in the uprooting of over 4,400 marijuana plants, which in their uncured state totaled over eight tons of marijuana.
Since 1999, the San Bernardino County Sheriff’s Department has been participating in and receiving federal money for the Domestic Cannabis Eradication/Suppression Program. Even in the aftermath of the voters’ 2016 passage of the Adult Use of Marijuana Act, Sheriff John McMahon, with the consent of the San Bernardino County Board of Supervisors, applied for and continued to receive those grants, which he then used to offset some, though not all, of his department’s costs in going after marijuana cultivators. At present, the department is using $151,000 obtained through a Domestic Cannabis Eradication/Suppression Program grant to offset the sheriff’s department’s costs in the anti-marijuana crusade.
Simultaneously, at least five cities in San Bernardino County – Adelanto, Barstow, Hesperia, Needles and San Bernardino – are allowing or are making preparations to allow the sale of marijuana or marijuana-based products within their boundaries. At least eight other cities are allowing or at least tolerating the sale of a cannabis-based product – CBD oil – within their jurisdictions.
That is just one element of the schizophrenic approach governmental officials are taking to marijuana at present. For nearly a century, from 1907 until 1996, the use, possession, sale, cultivation, distribution or refinement of marijuana was strictly illegal in California. Marijuana remains classified by the federal government as a Schedule 1 Narcotic, considered in the same class as heroin, cocaine and methamphetamine. In 1996, the passage of Proposition 215, the Compassionate Use of Marijuana Act, by California’s voters made the sale and use of marijuana for medical purposes legal in the state, pursuant to the user having a medical prescription for it. Until Needles in 2012 became the lone exception, San Bernardino County’s cities steadfastly refused to allow medical marijuana dispensaries to operate within their jurisdictions. The passage of the Adult Use of Marijuana Act four-and-a-half years ago, allowing those over 21 to use the drug for its intoxicative effect, has spurred some cities in the county to seek to cash in on the sale of the drug by allowing, in some cases, the retail sale of the plant, in other cases the cultivation of the plant, in other cases the refinement of marijuana and in the case of Hesperia, the distribution of the drug. Most San Bernardino County municipalities are yet resisting allowing marijuana to be commercially available.
The county board of supervisors, which oversees the unincorporated portion of the 20,105-square mile county outside its 22 incorporated cities and two incorporated towns – roughly 94 percent of the county land mass or 19,099 square miles – has perpetuated the marijuana ban.
Hence, Sheriff John McMahon has continued with the eradication/suppression effort. In doing so, he has ostensibly had substantial success. His department is in possession of helicopters outfitted with visual scanners that employ spectrophotometers that can immediately detect the highly distinctive color of marijuana plants. This tool alone has enabled the department to search for needle upon needle in the haystack that is the largest county geographically in the lower 48 states, a land mass larger than Rhode Island, Connecticut, Delaware and New Jersey combined. The department is also able to make a digitized analysis of water and electricity use by the customers of the county’s various utility companies to detect the telltale signs of a marijuana-growing enterprise. Still, the more sophisticated operators of unlicensed marijuana farms, in particular the ones who were functioning a decade, two decades, three decades and four decades ago when marijuana was outright illegal and who were not getting caught then, remain, with only rare exceptions, a step or two or three or four ahead of those on the lookout for them.
What is for many observers the most amusing or most enraging – depending on one’s attitude and point of view – element of the bureaucratic schizophrenia surrounding the marijuana issue in San Bernardino County is the general lack of prosecution that ensues from the suppression/eradication effort. In scores of cases in San Bernardino County over the last few years, individuals have been caught growing quantities of marijuana that would have virtually ensured a perpetrator caught doing the same thing one, two, three, four, five or six decades ago get a 20-year or longer prison sentence.
In most cases now, those caught are not arrested. Some are cited. Where arrests do take place, it is most often for another crime unrelated to marijuana that was noted during the operation. The district attorney’s office, which functions under the aegis of state law, has apparently lost its stomach for prosecuting those caught engaged in marijuana-related activity.
For reasons that have not been explained, despite the consideration that the sheriff’s department is using federal money in the form of grants from the Domestic Cannabis Eradication/Suppression Program, the U.S. Attorney’s Office does not seem interested, particularly, in prosecuting those who have been caught, in most cases red-handed, growing marijuana in contravention to federal law.
During operations in the greater Twentynine Palms area, Desert Heights and Landers on May 5 and May 7, raids were carried out on marijuana cultivation facilities on property near Sespe Street and Alta Avenue in Landers; Covela Avenue and Napa Road in Landers; property adjacent to Napa Road and Alta Avenue in Landers; at Covela Avenue and Sespe Street in Landers; at another site close to Covela Avenue and Sespe Street in Landers; at a site proximate to Kelsey Boulevard and Presswood Drive in Landers; on property at Kachina Drive and Shoshone Valley Road in Desert Heights and at a facility located on property in the 1200 block of Sunrise Avenue in Desert Heights.
It is unclear how many citations were issued by the task force to those believed involved in the cultivation activity.
Five arrests were made, two of which related to activity that could be established as exceeding that of unlicensed cultivation of marijuana.
Carlos Avila, 40, of Sinaloa, Mexico, and Octavio Perez, 25, of Guanajuanto, Mexico, who were at the Napa Road/Alta Avenue operation in Landers, were in possession of handguns and anabolic steroids. They were arrested on charges of cultivation of marijuana and possession of a controlled substance while armed.
Carlos Pulido, 23 of Michoacan, Mexico, was arrested at the Kachina Drive and Shoshone Valley Road operation.
Fernando Gonzalez, 36, and Christian Lopez, 25, both of Michoacan, Mexico, were arrested at the Sunrise Avenue farm.
Pulido, Gonzalez and Lopez are being charged with marijuana cultivation. It is not clear why they were taken into custody rather than being cite released as has lately been the case of those involved in unlicensed marijuana growing.
The previous week, within a single six-hour span on Thursday April 29, the sheriff’s department marijuana eradication task force engaged in raids on five separate agricultural operations, seizing over 2,300 marijuana plants from a location within the 73500 block of Two Mile Road, property at Emerald Street and Pine Springs Avenue, one property at the intersection of Dunlap Road and Canyon Road, another property proximate to Dunlap Road and Canyon Road, and a site at the corner of Redhill Road and Bermuda Avenue, all of which fall within Twentynine Palms and nearby Desert Heights.
Representatives Mike Garcia (CA-25), Kevin McCarthy (CA-23), Jay Obernolte (CA-08), and Ken Calvert (CA-42) led a letter from the California Republican Congressional Delegation to U.S. Department of Justice (DOJ) Attorney General Merrick Garland regarding the dangerous increase of illegal marijuana grows in southern Californian.
The letter comes due to an alarming escalation in dangerous criminal activity across Southern California related to illegal marijuana grow operations.
“We have heard from our constituents of heinous incidents of intimidation, coercion, and violence being used by illegal growers to ensure that their operations continue unimpeded,” the lawmakers wrote. “There have also been multiple homicides at these grow sites as opposing criminal syndicates engage in turf wars. In September of 2020, seven bodies were discovered at an illegal grow in Riverside County, and, just recently, two bodies were discovered at another site.”
In addition to menacing Californians, the criminals operating the illegal grows are damaging public lands and stealing resources from residents.
“It’s estimated that at the end of 2020, illegal marijuana grows were illegally consuming between 11 and 36 million liters of water daily,” the lawmakers wrote. “Water is already a precious resource in California, we cannot allow these illegal operations to exacerbate the problem further.”
The vast majority of illegal grows are operated by illegal immigrants who have either entered the country illegally or have overstayed visas. Many of the individuals arrested at these marijuana grows have been discovered to be victims of human trafficking, forced into servitude at these grow sites. The sharp increase in illegal grow operations, which swelled as much as 300% in some areas over the last year, is a result of the dangerous combination of lack of law enforcement and lack of border security.
“The growth is fueled in part by the knowledge that criminals who are arrested will ultimately face no consequences,” the lawmakers wrote. “We have heard from local, state, and federal law enforcement who are frustrated that their hard work is routinely rendered pointless by prosecutors who refuse to charge offenders unless they commit additional, ‘more serious’ crimes as well. When prosecutors wait for violent or other serious crimes to occur before charging these criminals, our constituents pay the price.”
The lawmakers requested that the U.S. Attorney General utilize whatever authority is available to address the growing crisis, including prosecuting these criminals to the fullest extent allowable under the law, to cut off the escalating fear and violence in their districts.
Reps. Doug LaMalfa (CA-01), Tom McClintock (CA-04), David Valadao (CA-21), Devin Nunes (CA-22), Young Kim (CA-39), Michelle Steel (CA-48), and Darrell Issa (CA-50) also signed on to the letter requesting answers from DOJ.
Judge David Cohn has postponed once again the hearing he is to conduct for oral arguments following the written briefings relating to multiple points in a citizen group’s lawsuit contesting the Upland City Council’s approval of Bridge Development Partners’ distribution center for online retail behemoth Amazon.
It is anticipated that following those arguments, either immediately or sometime thereafter if he chooses to take the matter under submission, Judge Cohn will make a determination of whether the plaintiffs’ request for the vacation of the project approval will be granted, denied or whether the matter will be considered at trial.
Cohn was initially scheduled to hold the much-delayed hearing on March 12, 2021. Just prior to that date, the hearing was rescheduled for April 23. Thereafter, Judge Cohn rescheduled the hearing for May 7. An unspecified emergency required that Judge Cohn postpone the hearing again until next Monday, May 17. Word now has come that the hearing has been extended once more, and is to be held on Monday June 14, 2021 at 1:30 p.m. in the San Bernardino Justice Center at 247 West Third Street in San Bernardino.
The project has now been on hold for more than 13 months. In giving Bridge Development Partners go-ahead on the project by a 4-to-1 margin on April 1, 2020, the Upland City Council used a less exacting mode of environmental certification, referred to as a mitigated negative declaration, than a comprehensive environmental impact report for the 201,096-square foot building to be located north of Foothill Blvd. south of Cable Airport.
A citizens group calling itself Upland Community First formed and sued, seeking to have the project approval rescinded, and an EIR, an environmental impact report, the most comprehensive type of environmental impact evaluation, carried out in conjunction with the city council’s reconsideration of the project.
The city, supported by Bridge Development Partners, has asserted that the city and the developer fulfilled all of the requirements for project approval under the law, and that the project complies with all environmental regulations.
Upland Community First contends the testimony of several experts with regard to land use and environmental impacts put into the record at the April 1, 2020 meeting and previous planning commission meetings made it incumbent upon the city to consider specific elements of the project proposal and undertake a more comprehensive evaluation of the project or deny it outright.
Upland Community First wants Judge Cohn to consider in particular statements made by four people considered to be land use or environmental issue experts.
One of those, Roger Stephenson, a civil engineer, said the city had not put into the record all of the correspondence related to the project submitted by the public and that the development agreement considered by the city council was different from the one recommended to the planning commission.
Stephenson said at the April 1, 2020 hearing that the development agreement left “too much open for interpretation or misinterpretation” and that “revisions incorporated this late in the approval process indicate the city realizes that the mitigated negative declaration and supporting documents are inadequate. The terms within the city approval documents are not mitigation measures under the California Environmental Quality Act.”
Another of those experts, Dr. Brinda Sarathy, a professor of environmental science at Pitzer College, said a full environmental impact report was essential to maintain the integrity of the city’s planning process.
“The city’s claim that the project is a warehouse permissible under the commercial/industrial mixed-use zoning is a significant misrepresentation of the actual operations of the project, which is not a mere warehouse for the primary storage of commercial goods but rather a soon-to-be node in a delivery station network characterized by the ongoing and continuous sorting and distribution of goods on a 24/7 basis,” Sarathy stated. “It is not a currently permitted land use under the existing general plan.”
A third expert, Lois Sicking Dieter, an engineer with the California Environmental Protection Agency, decried the “incomplete hydrology and incomplete water quality analysis in the mitigated negative declaration,” saying its “findings are inaccurate because the city relied upon a flawed methodology, outdated software, generalized conclusions based on erroneous data, undefined calculations causing misleading results and analysis, lack of detail and inaccuracies in the city’s data input.” She asserted that the analysis and conclusions of the entire declaration are misleading, as they understate the environmental impact of the proposed project. She said the city’s claim to having obtained similar data and to have arrived at the same conclusion after downdating the software from a 1999 version to a 2016 version was “physically impossible.”
The stormwater system at the site would not be able to capture or contain water flow from rain events, Sicking-Dieter said, after the project is completed. She said the city was further ignoring the historic nature and features of Route 66 – Foothill Boulevard – in its consideration of the placement of the project at that location.
A fourth expert, California State University at San Bernardino economics professor Eric Nilsson, said “I took a close look at the air quality assessment and a close look at the greenhouse gas emissions assessment, and frankly I did not like what I saw. To not mince words, the studies are so poorly done they need to be set aside as inadequate. There needs to be a full scale environmental impact study performed. There are mathematical errors in some of the tables. The tables refer to appendices that do not have material that is supposed to support the material in the tables. So, someone revised these reports and failed to actually make things synchronize. It is pretty shoddy work. As one example of questionable assumptions that are included in the air quality assessment and the greenhouse gas assessment: Built into the model that the consultants generated was the assumption that when a vehicle leaves the warehouse to deliver something, the average number of miles they go is going to be 6.9 miles. 6.9 miles for an Amazon delivery? It takes that long to get to La Verne, but then once the truck gets to La Verne, it drives around for a couple of hours delivering packages, racking up sixty miles more above the 6.9. That is just one error out of many, or one questionable assumption of many. The implication of that is the air quality assessment reports and the greenhouse gas assessment reports grossly underestimate the number of miles that will be driven by vehicles associated with their warehouse. By grossly underestimating the number of miles that will be driven by those vehicles, they grossly underestimate the greenhouse gas emissions and other sort of noxious fumes that will be generated by those vehicles.”
The input from Stephenson, Sarathy, Sicking-Dieter and Nilsson is contained within the 7,000 pages of the administrative record relating to the project that has been presented to the court by the plaintiffs.
The city, represented by Ginetta Lorraine Giovinco of the law firm Richards Watson & Gershon, maintains that the Upland met all of the procedural requirements under California law to approve the project and that the city council, which has the ultimate land use authority in the City of Upland, was acting entirely within its lawful discretion to utilize a mitigated negative declaration as opposed to a full environmental impact report to carry out the environmental certification of the project.
Project proponents say that Upland Community First is standing in the way of progress, and that traditional brick and mortar retail establishments are giving way to on-line sales operations such as Amazon. They say that Bridge Development was willing to offset the impacts of the project at the time of approval by agreeing to put up $18 million in project impact fees, and has since more than doubled that offer to upwards of $39 million. By not agreeing to drop its lawsuit against the project, they say, Upland Community First is risking the city not receiving more than $21 million in project impact offsets beyond the $17 million that Bridge Development agreed to in April 2020.
Those obstructing the project are a bunch of limp-wristed, quiche-eating tree-huggers and environmental activists who would be content to prevent any further development from taking place everywhere in California, those in favor of the project say.
Eric Gavin, a Upland resident, said the project opponents were nothing more than a backward-looking “angry say-no-to-everything crowd.”