The terms upon which the Upland City Council approved Frontier Homes development of sixty-five single-family homes on 9.2 acres of property located within an existing flood control basin near a long established residential neighborhood must be rescinded, according to a Superior Court judge’s tentative ruling which is likely to be finalized within the next month.
At the very least, according to Judge David Cohn, Frontier Homes will need to complete a full-blown environmental impact report before the proposed Villa Serena project is constructed within a portion of a 32-acre percolation basin between 15th Street and 16th Street, roughly a quarter of a mile east of Campus Avenue in the northeastern quadrant of Upland, just north of a residential district within the City of Upland often referred to as Foothill Knolls.
Complicating the issue is that in 1999 the City of Upland entered into a 25-point “streambed alteration agreement” with the California Department of Fish & Game, now known as the Department of Fish & Wildlife, that declared a portion of the percolation basin off limits to development. It thus appears possible if not indeed likely that if a new environmental certification process for the Villa Serena project is undertaken, there will follow a reduction in the number of units to be constructed.
Under the California Environmental Quality Act, most development projects are subjected to an environmental certification process. Some types of environmental certification are more intensive than others, ranging from an environmental impact report to an environmental impact study to an environmental assessment to an environmental examination to a mitigated negative declaration to a negative declaration.
An environmental impact report, the most involved type of environmental analysis and certification there is, consists of an involved study of the project site, the project proposal, the potential and actual impacts the project will have on the site and surrounding area in terms of all conceivable issues, including land use, water use, air quality, potential contamination, noise, traffic, and biological and cultural resources. An environmental impact report specifies in detail what measures can, will and must be carried out to offset those impacts. A mitigated negative declaration falls near the other end of the scale, and exists as a far less exacting size-up of the impacts of a project, by which the panel entrusted with the city’s ultimate land use authority, as in the case of Upland the city council, issues a declaration that all adverse environmental impacts from the project will be mitigated, or offset, by the conditions of approval of the project imposed upon the developer.
On April 13, 2020, during a teleconferenced meeting in which the public participated remotely and electronically rather than in a physical forum, the Upland City Council voted 4-to-1 to give Frontier Homes an entitlement to construct the 65 units of single-family detached residential homes to be known as the Villa Serena project. In granting the project approval, the council did so based on a mitigated negative declaration.
Judge Cohn has now tentatively determined, after a citizens group challenged the city’s approval, that the mitigated negative declaration was insufficient.
In 1939, following the devastating flooding of 1938, the San Bernardino County Flood Control District converted four parcels between 15th Street and 16th Street a little more than a mile east of Euclid Avenue into a 32-acre percolation basin as an augmentation to a then-existing stormwater control system. In addition to allowing for the settling of water at that spot into the water table, the 15th Street basin was also intended to intercept stormwater runoff from 583 acres of surrounding land. That basin was capable of holding more than 50.4 million gallons of water.
In 1969, the dyke/embankment creating the basin, which had been compromised by the burrowing of gophers and squirrels, nearly failed during an intensive set of deluges, and the Foothill Knolls neighborhood, which lies between 15th Street to the north, the the city limits to the east, and Foothill Boulevard to the south and Campus Avenue to the west, was evacuated.
In 1991, Upland obtained title to the basin.
In the 1950s, what had once been a gravel pit east of Campus Avenue and above 14th Street, west and south of the basin, was converted into a landfill. In the early 1980s, that landfill was shuttered. Contaminants at the site festered below the surface, including pockets of methane gas, which was burned off at various venting spots scattered about the site.
Because water seeping through the landfill below ground migrated into the water in the basin, and because the basin was a source of water into the aquifer below Upland, the Santa Ana Regional Water Quality Control Board ordered Upland to stop impounding and percolating water into the water table near the landfill to prevent the migration of contaminants into water wells drawing from the water table. This order required the City of Upland to reduce the size of the basin between 15th Street and 16th Street by filling in its westernmost 12 acres.
The California Department of Fish and Game, exercising its authority, called upon the city to protect the fish and wildlife that could be adversely impacted by the regrading of the earthen-bottomed basin. Ultimately, in 1999, the Department of Fish and Game entered into a streambed alteration agreement with the City of Upland in accordance with Fish and Game Code section 1600, et sequitur. Contained within that pact was language stating, “There shall be no loss of wetland habitat and function. Impacts to wetland habitat shall be mitigated at a 1.5 to 1 ratio by management of the basin to allow for retention of wetland habitat at the eastern sector, which grows as a result of flow and [percolation] in the basin.”
The agreement mandated that Upland provide annual reports until 2006 on the maintenance of the replacement wetlands. Upland had reestablished the wetlands, with the goal of preserving wildlife habitat, in December 2000. The city commissioned LSA Associates to carry out the studies of the condition of the wetlands and provide those mandated annual reports.
Beginning in 1999, a consortium of investors and developers known as the Colonies Partners, led by managing principals Dan Richards and Jeff Burum, began in earnest an effort to develop the Colonies at San Antonio residential and the Colonies Crossroads commercial subdivisions on property in northeastern Upland previously owned by the San Antonio Water Company that had long been deemed undevelopable. Those projects were rendered achievable by the California Department of Transportation’s extension of the 210 Freeway across the northern portion of the city, which further involved the San Bernardino County Flood Control District and the Army Corps of Engineers completing elements of regional flood control projects that were augmented with the Colonies Partners’ construction of storm drain and sewer facilities. Some of the infrastructure the Colonies Partners was to complete for its residential and commercial subdivisions was ultimately dedicated to the city and those improvements increased the capacities of streets, storm water drainage facilities and sewers in some areas within the Upland City Limits outside the specific plan area for the Colonies Partners’ undertaking. Accordingly, on September 24, 2002, the city council approved a development agreement with the Colonies Partners allowing the development of the Colonies at San Antonio Project to proceed. A section of that agreement entailed the city paying the Colonies Partners $5 million as the city’s fair share cost toward the infrastructure the Colonies Partners was undertaking to build in conjunction with its projects. Included in the agreement was that 20.3 acres of the original 32-acre percolation basin near 15th Street would be utilized as a flood water basin. The cash-strapped city was not in a position to pay the Colonies Partners a full five million dollars at that time. On December 22, 2003, the city council voted to modify the city’s agreement with the Colonies Partners by paying Richards’ and Burum’s company $1.5 million, and granting Burum and Richards a ten-year first right of refusal to explore possible uses for a portion of the reduced basin footprint, and agreeing that upon such a mutually satisfactory project being identified, the city would transfer title to that portion to the Colonies Partners for one dollar, the Colonies Partners would forgive the city’s remaining $3.5 million debt, the processing of the Colonies Partners’ project proposal would be expedited, and the remainder of the basin property/wetlands preserve would be dedicated to public use.
In 2013, the Colonies Partners had not yet exercised its right toward developing the basin property, which in any event was complicated by the requirement that a good part of it be maintained as wetlands wildlife habitat. The city council detailed then-Assistant City Attorney Kimberly Hall-Barlow to write a letter to the Colonies Partners to note the lack of progress with regard to the development of the property and gently prod it toward action by the January 21, 2014 expiration date of decade-long term in which the Colonies Partners had to make use of the property. Hall-Barlow, however, defied the city council’s instructions on the letter’s tenor, instead penning a much more aggressive missive to the Colonies Partners that might serve as the groundwork for triggering the reversionary clause in the December 2003 revamping of the September 2003 agreement, such that the city would retain the 9.2 acres in question. The council, however, unwilling to confront the Colonies Partners, conveyed to then-City Attorney Richard Adams its displeasure with Hall-Barlow’s effort. Adams conferred with other members of his firm, Jones & Mayer. Hall-Barlow was thereafter eased out of her position as assistant city attorney by Jones & Mayer and moved into the position of city attorney with the City of West Covina, where Jones & Mayer also had a contract to provide legal services.
Though the 10-year term in which the Colonies Partners was to develop the property expired on January 21, 2014, more than a year later, on February 9, 2015, the Upland City Council voted to approve a second amendment to the agreement allowing an additional three years for the Colonies Partners to identify and initiate a project on a portion of the basin.
In June 2017, Rosemary Hoerning, then Upland’s city engineer, accepted a drainage study relating to the basin that the Colonies Partners had the engineering firm Madole & Associates prepare. Madole & Associates concluded that only 11.1 acres of the basin’s 20.3 acres were needed for future flood control purposes, based on the assumption that previous construction of an additional stormwater retention basin upstream and the Army Corps of Engineers’ construction of a concrete drainage channel along the eastern edge of the Colonies at San Antonio project would adequately handle stormwater flows. That document, however, did not deal with the issue of having to maintain a significant portion of the basin footprint as wetlands. Based on the Madole & Associates study, the City of Upland, by a quitclaim deed, transferred 9.2 acres of the western portion of the basin to the Colonies Partners.
Subsequently, the Colonies Partners made an arrangement with Frontier Homes, headed by a personal friend of Jeff Burum, James Previti, to undertake the development of the 9.2 acres. It is not clear whether the Colonies Partners understood the limitations imposed on the development of the property as a consequence of the City of Upland’s pact with the Department of Fish and Wildlife with regard to maintaining the property as wetlands. Nor is it known whether Burum and the Colonies Partners informed Previti and Frontier Homes about the limitations on development at the site.
In 2018 Frontier Homes learned through its consultant, Q3, that reconfiguring the remaining eastern portion of the basin would alter the facility in such way that unless the capacity of the basin was reduced from its current 50.428 million gallons of water to below 16.29 million gallons, it would be subject to the jurisdiction of California’s State Division of Safety of Dams. Without that reduction in holding capacity, that state agency would not sign off on the project without significant upgrades to the remaining basin, including doing excavation so the foundation of the basin embankment could be established on bedrock and its spillway enlarged, a technically challenging and prohibitively costly undertaking. There ensued a manipulation of paperwork to indicate the holding capacity of the basin had dropped to below 16.29 million gallons, which Hoerning, as city engineer, knew to be untrue as to physical fact.
In 2019, Hoerning was installed as Upland’s acting/interim city manager when then-City Manager Jeannette Vagnozzi was sacked. In March 2020, the council dropped the acting/interim prefix from Hoerning’s title, making her the city’s full-fledged city manager. Hoerning, convinced that the city council was in favor of the Villa Serena project, had facilitated at the staff level the processing of Frontier Home’s project application. By chance, the city had contracted with LSA Associates, the same firm that had carried out the annual reports prepared for the California Division of Fish and Wildlife relating to the 15th Street Basin wetlands, to prepare the mitigated negative declaration for the Villa Serena project. In April 2020, on the eve of and the very day of the city council’s hearing on the project, Hoerning learned from LSA Associates personnel, based on a review of the reports that company had done for the California Division of Fish and Wildlife more than a decade-and-a-half previously, of the manner in which the agreement with the California Department of Fish and Wildlife encumbered the property upon which the Villa Serena project was to be built. As the matter was a rather arcane one, and the record with regard to both the streambed alteration agreement and its accompanying limitations were buried in reams of documentation, Hoerning allowed the council to consider the project without being fully apprised of the commitment to maintain a portion of the site as open space.
Accordingly, on April 13, 2020, the Upland City Council voted 4-to-1 with Councilwoman Janice Elliott dissenting, to give Frontier Homes an entitlement to construct 65 single family detached residential units on 9.2-acres owned by the Colonies Partners within the footprint of the defunct flood control detention basin north of 15th Street.
Thereafter, a group of Upland residents living both within and outside the Foothill Knolls District led by Lois Sicking Dieter, formed Friends of Upland Wetlands, which retained attorney Cory Briggs, who filed a petition for a writ of mandate on the newly-formed association’s behalf in San Bernardino County Superior Court, naming the City of Upland as the respondent and Frontier Homes as the real party in interest. The writ sought the rescission of the approval of the Villa Serena project until a full-blown environmental impact report was undertaken and completed.
Judge Cohn in his tentative decision rendered on July 14 wrote, “Frontier Homes prepared an ‘initial study–mitigated negative declaration.’ Upland approved the initial study–mitigated negative declaration and the project overall. Petitioner Friends of Upland Wetlands challenges the approvals, contending that California Environmental Quality Act requires a full environmental impact report for the project, rather than a mitigated negative declaration. Friends of Upland Wetlands is correct. The project site may be a ‘wetlands’ area, requiring consultation with the responsible agencies. Additionally, there is substantial evidence in the administrative record supporting a ‘fair argument’ that the project may result in significant biological, noise, aesthetic, and groundwater recharge impacts. Accordingly, the petition is granted. A full environmental impact report is required.”
The Friends of Upland Wetlands did fail in effectively assailing the project approval on the grounds that the Upland City Council ignored the Upland Planning commission’s recommendation against the approval of the project, Judge Cohn ruled. The planning commission objected to what its members collectively found would be significant environmental impacts. In his decision, Judge Cohn dismissed the Friends of Upland Wetland’s contention that the planning commission’s determination constituted a binding finding that the project was unacceptable. He pointed out that “Although the planning commission recommended denial, it did so without considering certain modifications to the project—modifications that were later considered by Upland’s staff and incorporated into the staff report. Therefore, the planning commission’s recommendation was based on incomplete information. As a result, the planning commission’s recommendation of denial does not constitute substantial evidence of an environmental impact as contended by Friends of Upland Wetlands.”
Still the same, Cohn said, “The initial study–mitigated negative declaration failed to recognize that the project may impact wetlands, requiring consultation with the responsible agencies.”
Cohn’s decision did not directly state but implied that the project site for the Villa Serena project includes property that cannot be built upon.
“Friends of Upland Wetlands contends the initial study-mitigated negative declaration failed to recognize that several acres of the property are ‘wetlands’ and are therefore under the jurisdiction of the California Department of Fish and Wildlife,” Cohn stated. “Upland and Frontier Homes, however, write: ‘This case . . . is premised on the misconception that a decades-old operating flood control channel . . . is a wetland. It is not, and California and Federal law make clear that operating and licensed stormwater facilities are ‘artificial’ or ‘nonwetland.’”
The city and developer are incorrect on that point, Judge Cohn held.
“It is not so simple,” Cohn wrote. “First, Upland and Frontier Homes rely on documents such as State Water Resources Control Board Resolution No. 2019-0015 and the Corps of Engineers Wetlands Delineation Manual (1987), which are not part of the administrative record. The court cannot consider them. Second, and more importantly, the issue is not whether the property is or is not ultimately determined to be wetlands – the issue is whether Friends of Upland Wetlands has submitted ‘substantial evidence’ supporting a ‘fair argument’ that it is, such that a full environmental impact report is required.”
Judge Cohn continued, “Upland and Frontier Homes have ignored substantial evidence cited by Friends of Upland Wetlands supporting a fair argument that the project site is a wetlands area. The 15th Street Basin was originally thirty-two acres, and in 1999-2000, Upland filled in the westerly 11.2 acres with the oversight of the Santa Ana Regional Water Quality Control Board and the California Department of Fish and Wildlife. In the annual report prepared for the California Department of Fish and Wildlife under the 1999 streambed alteration agreement, LSA Associates, Inc., the same consulting firm that prepared the initial study-mitigated negative declaration in this case, states that the 1998 biological assessment of the basin found the habitat quality of the area was of low value due to the limited diversity of vegetation, but that ‘[t]he single habitat component of any notable value on the site is the presence of water, albeit seasonally.’ At that time, the LSA biological assessment characterized the vegetation of the basin as either ‘upland’ or ‘wetland,’ with 6.5 acres of the thirty-two-acre basin delineated as wetlands. Of that amount, 5.3 wetland acres were located in the remaining unfilled portions of the basin. The 1999 agreement also called for 1.8 acres of ‘new’ wetlands area to be created in the basin to replace the ‘lost’ 1.2 acres of wetland area from the fill project. Therefore, additional wetland areas were apparently added to the remaining unfilled portions of the basin, where this project is to be located.”
Cohn wrote, “Upland and Frontier Homes contend that Friends of Upland Wetlands mischaracterizes the 1999 streambed alteration agreement, noting that it expired in 2001 and was issued under a Fish and Game Code section that has since been repealed. That does not mean, however, that the law underlying the agreement no longer exists elsewhere in the code.”
“Cohn continued, “The 1999 streambed alteration agreement was issued pursuant to Fish and Game Code section 1601, which at the time contained provisions regarding notice of construction projects and proposals for modifications, and stated in relevant part: ‘Except as provided in this section, general plans sufficient to indicate the nature of a project for construction by, or on behalf of, any state or local governmental agency … shall be submitted to the California Department of Fish and Wildlife if the project will (1) divert, obstruct, or change the natural flow or the bed, channel, or bank of any river, stream, or lake designated by the California Department of Fish and Wildlife in which there is at any time an existing fish or wildlife resource or from which these resources derive benefit, (2) use material from the streambeds designated by the California Department of Fish and Wildlife, or (3) result in the disposal or deposition of debris, waste, or other material containing crumbled, flaked, or ground pavement where it can pass into any river, stream, or lake designated by the California Department of Fish and Wildlife. If an existing fish or wildlife resource may be substantially adversely affected by that construction, the California Department of Fish and Wildlife shall notify the governmental agency … of the existence of the fish or wildlife resource together with a description thereof and shall propose reasonable modification in the proposed construction that will allow for the protection and continuance of the fish or wildlife resource ….’”
Judge Cohn noted that California law “require[s] a governmental agency proposing a project that would divert, obstruct, or change the natural flow, or result in the disposal of debris, in a river, stream, or lake designated by the California Department of Fish and Wildlife, to submit prescribed plans and other information to the California Department of Fish and Wildlife and to follow prescribed procedures” and state law further requires “a holder of an agreement to alter a streambed to remain responsible for implementing any mitigation or other measures necessary to protect fish and wildlife resources after the agreement had expired,” such that the California Department of Fish and Wildlife is authorized “to suspend or revoke an agreement if the holder is not in compliance with its terms.”
In his ruling, Judge Cohn held that “The 1999 streambed alteration agreement is important, notwithstanding expiration, because it provides substantial evidence that both Upland and the California Department of Fish and Wildlife previously considered the 15th Street Basin to be a ‘bed, channel, or bank of’ a streambed that was under the jurisdiction of the California Department of Fish and Wildlife. At that time, the California Department of Fish and Wildlife had determined that Upland’s intent to fill in the westerly 11.2 acres of the original basin could ‘substantially adversely affect existing fish and wildlife resources, including: red-tailed hawk, red-winged blackbird … other birds, mammals, reptiles, amphibians, plants, and other aquatic-related resources and wildlife’ in the basin. Among other conditions, the agreement stated, ‘There shall be no loss of wetland habitat and function. Impacts to wetland habitat shall be mitigated at a 1.5 to 1 ratio by management of the basin to allow for retention of wetland habitat at the eastern sector, which grows as a result of flow and [percolation] in the basin.’ In accordance with the permit issued under the agreement, the ‘lost’ 1.2 acres of wetland area required a 1.8-acre replacement to be established in the remaining unfilled area of the basin, and Upland was required to submit an annual report to the California Department of Fish and Wildlife for five years.”
Judge Cohn stated, “Upland and Frontier Homes have not pointed to any evidence in the record indicating that the ‘wetlands’ designation underlying the 1999 streambed alteration agreement was later rescinded or otherwise modified. The initial study-mitigated negative declaration relies on the ‘Phase I Environmental Site Assessment’ of the project site. The environmental site assessment was conducted concurrently with the biological assessment in June 2018. The environmental site assessment contains maps that identify the site as ‘National Wetland Inventory’ – part of a national wetlands database purportedly maintained by the U.S. Fish & Wildlife Service. The environmental site assessment also advises that ‘the existence of wetlands information data in a specific report does not mean that all wetlands in the area covered by the report are included … [and] the absence of any reported wetlands information does not necessarily mean that wetlands do not exist in the area covered by the report.’ Yet the executive summary of the environmental site assessment, after stating that the ‘Site is listed with State Water Resources Control Board California Integrated Water Quality System … database as Inland Empire Utilities Authority groundwater recharge basin operations and maintenance,’ inexplicably states that the ‘listing does not represent a recognized environmental condition.’ No explanation is given in the initial study-mitigated negative declaration or by Upland and Frontier Homes for the discrepancy between this conclusion in the executive summary portion of the environmental site assessment and the data displayed on the maps that show the site listed in the National Wetland Inventory – a listing which presumes the recognized environmental condition of a ‘wetlands’ area.”
That constituted a substantial flaw in the mitigated negative declaration, Judge Cohn opined.
“Therefore, there is substantial evidence supporting a fair argument that the site is a designated wetlands area, such that a significant environmental impact may occur as a result of the project,” Cohn wrote. “Accordingly, Upland’s decision to adopt the initial study-mitigated negative declaration in approving the project was an abuse of discretion. The failure to consider that the project may impact wetlands renders the description of the project inaccurate. This failure also forms part of the reason there is substantial evidence supporting a fair argument of biological impacts.”
Cohn wrote, “The failure to recognize that the project site may be a designated wetlands area also resulted in Upland’s failure to submit the initial study–mitigated negative declaration to any responsible or trustee agencies—a per se violation of the California Environmental Quality Act. California regulations state that all waterways of the state, including intermittent streams, are subject to the jurisdiction of the California Department of Fish and Wildlife. Under Fish and Game Code section 1602, it is illegal for an entity to ‘substantially divert or obstruct the natural flow of, or substantially change or use any material from the bed, channel, or bank or, any river, stream, or lake’ without first notifying and obtaining the approval of the California Department of Fish and Wildlife.”
In addressing Friends of Upland Wetlands’ contention that the project may result in significant biological impacts, Judge Cohn made a finding that a prima facie showing that such was the case had been made. He said the city council during the April 13, 2020 hearing on the project had ignored evidence to that effect.
“During the public comment period, several wildlife biologists and amateur birdwatchers noted personal observations of various wildlife species and habitats on the site,” Judge Cohn wrote. “Friends of Upland Wetlands argues that these comments by local ‘experts’ ‘completely debunked’ the conclusions in the initial study-mitigated negative declaration, and therefore, pursuant to California Environmental Quality Act Guidelines Section 15064, subdivision (g), Upland should have required an environmental impact report. Upland and Frontier Homes, however, argue that these commenters are not ‘experts,’ and therefore their unsubstantiated opinions and comments cannot constitute substantial evidence of a fair argument because they lack credibility. Notwithstanding these comments, Upland and Frontier Homes contend Friends of Upland Wetlands’ claim fails because none of the commenters addressed or objected to Mitigation Measure BIO-1 [contained in the mitigated negative declaration], which purports to reduce the biological impacts of the project to a less than significant level. The argument ignores oral comments by one person addressing the inadequacy of the biological assessment, and thus alluding to the inadequacy of the recommended mitigation measure. Natasha Walton, a wildlife biologist and sixteen-year Upland resident, opined that the field survey conducted for the biological resources assessment was performed at the wrong time of year and failed to follow proper survey protocols. Walton stated that burrowing owls had historically been present in the basin and that suitable burrowing owl habitat had been noted in the report, but an adequate survey was not conducted. In addition, she opined that the delineation of jurisdictional waters was done at the wrong time of year because ‘everything’s dead or dormant’ in July. Walton also asserted that the California Department of Fish and Wildlife should have been consulted regarding the proper protocol for conducting an accurate survey according to the California Department of Fish and Wildlife report on burrowing owl mitigation, and that the California Department of Fish and Wildlife should have been consulted to obtain its comments on the evaluation and mitigation measures in the initial study-mitigated negative declaration.”
Judge Cohn went on. “Such technical interpretation requires an expert evaluation, but Walton stated she had expertise as a wildlife biologist, the type of expertise that would allow her to evaluate the adequacy of the biological assessment,” Judge Cohn noted. “Upland and Frontier Homes contend that Walton’s comments were properly disregarded because she did not provide any information about her credentials or education. The statutes, guidelines, and case law impose no such requirement. Walton’s expertise as a wildlife biologist is sufficient to qualify her to opine on the sufficiency of the biological assessment.”
The Friends of Upland Wetlands further contended in the petition for mandate that the initial study-mitigated negative declaration failed to adequately address the project’s adverse impacts on groundwater recharge. In his size up of the issue, Judge Cohn said the mitigated negative declaration outlined mitigation measures that took into consideration most of impacts of the project upon groundwater recharge. In one respect touching on groundwater recharge, however, he found that the mitigated negative declaration fell short.
“The initial study–mitigated negative declaration… does not explain how Mitigation Measure HYD-3 will allow the project to convert fifty-five percent of the site to impervious surfaces and substantially reduce the current containment capacity of the basin without impacting the basin’s current groundwater recharge function,” Judge Cohn wrote.
Judge Cohn rejected Friends of Upland Wetland’s contention that the project would impose traffic circulation burdens within the Foothill Knolls District.
“Friends of Upland Wetland’s traffic impact argument is moot,” he wrote.
Judge Cohn took up the plaintiffs’ contention that “the project may result in significant aesthetics impacts.” Without rendering a judgment on that contention, Judge Cohn noted, “Several residents commented that the elevations of the new homes would block mountain views of several nearby residences in the adjacent neighborhood” and that “During the planning commission meeting on January 22, 2020, the vice chair of the commission noted that comments regarding the loss of views were ‘the most thing that was repeated.’ Judge Cohn then made citation to several landmark decisions relating to the aesthetic impact of development on existing properties, including Ocean View Estates Homeowner’s Assn., Inc. v. Montecito Water District. “In this case, the residents’ comments were based on their personal observations regarding the aesthetics in the area near the site,” Cohn wrote. “Their comments expressing ‘height, view and privacy concerns’ constitute substantial evidence supporting a fair argument that the project may have a significant aesthetic impact on the environment.”
Quoting from a decision in the case of Georgetown Preservation Society, Judge Cohn wrote, “Despite the subjective nature of aesthetic concerns, it is clear that the project may have a significant adverse environmental impact. Whether it likely will or will not have such an impact is a question that an environmental impact report is designed to answer.”
In his conclusion, Judge Cohn wrote, “for the reasons explained above, the petition for a writ of mandate is granted. A full environmental impact report is required because there is substantial evidence supporting a fair argument that the project site contains wetlands, and that the project may result in significant biological, noise, aesthetic, and groundwater recharge impacts. The remaining grounds for the petition are denied.”
On July 14, Judge Cohn in his courtroom heard arguments from John McClendon who was present to represent Friends of Upland Wetlands, from Ginetta Giovinco who was heard telephonically representing the city and from Stephen Larson, Jennifer Cooper and Scott Summer, also telephonically, representing Frontier Homes. Judge Cohn issued his tentative ruling, while taking the arguments under submission. He is to notify the parties of his final decision by mail.
Five days later, on July 19, Frontier Homes submitted a request for judicial notice and a motion to augment the administrative record. That document was not filed and was returned to Frontier Homes’ legal representatives by the court with the notation that such motions have to be reserved for a hearing prior to their filing. It is not clear whether or not Judge Cohn is delaying his final ruling pending a hearing date on that motion being set and the documentation being considered and the motion heard.
-Mark Gutglueck

Needles City Councilman Timothy Terral this week resigned from his elected position, some two years and eight months after assuming office in San Bernardino County’s smallest and easternmost city.
After an unsuccessful attempt at capturing a council position in 2016, Terral was victorious in November 2018, placing second among five candidates vying for three positions on the council.
Early in his tenure as a councilor, in Spring 2019 Terral sought state assistance in restoring the Needles Lagoon.
Terral and Needles Mayor Jeff Williams, a former sheriff’s deputy and a concealed weapons permit holder, noted that California’s stricter gun regulations vis-à-vis those in other states resulted in travelers or tourists from Utah, Colorado, Texas, New Mexico, Arizona, Nevada and elsewhere, while traveling to California via Route 40, being obliged to unload their firearms upon crossing the Colorado River into the Golden State, and to keep their ammunition in a separate locked compartment, or risk arrest on a felony firearms charge.
Terral and Williams garnered statewide and national attention, as they sponsored, in the summer of 2019, a resolution to declare Needles a Second Amendment sanctuary city, which was intended to suspend certain state laws pertaining to the carrying of loaded firearms.
The Second Amendment sanctuary resolution, which was passed by the city council, called upon local law enforcement, meaning the San Bernardino County Sheriff’s Department and the California Highway Patrol, standing down with regard to enforcing firearms regulations under California law in Needles. That extended to allowing Needles residents to travel outside of the state to purchase ammunition, which runs counter to California law, intended to ensure that citizens buy bullets in California, where vendors are required to comprehensively log ammunition sales, capturing the identity of the buyer and the precise type and batch of bullets sold.
Using the term sanctuary in the resolution Terral proposed was deliberate, as he recognized that the proposal was calling for the suspension of state law. To neutralize charges or accusations that he was advocating lawlessness, the name for the resolution Terral used harkened to the ongoing movement by the State of California’s so-called progressive element, embodied by the Democrats who controlled then and still control both houses of the legislature as well as the offices of governor, lieutenant governor, attorney general, secretary of state, superintendent of schools, comptroller and auditor, all of whom were and are calling for California to serve as a sanctuary state, that is, one in which federal immigration laws were not enforced.
Terral was a fierce supporter of then-President Donald Trump as well as Republican and Right Wing causes. This put him within the mainstream among a sizable contingent of Needles residents. Nevertheless, the political initiatives he championed often fell outside the purview of local officials and the city council of which he was a member.
Terral’s so-called conservative philosophy was out of step with what has proven out as the major social, political and legal trend in Needles in the last decade, that being the city’s marijuanification.
After 89 years of marijuana being strictly illegal in California, in 1996 the state’s voters passed Proposition 215, the Compassionate Use of Marijuana Act, which made marijuana legal for medical purposes, pursuant to a user of the substance obtaining a prescription for it from a licensed medical doctor. San Bernardino County and all of its political subdivisions, however, were unaccepting of that shift altogether for most of the next 16 years, such that neither the county nor its 22 incorporated cities and its two incorporated towns allowed marijuana dispensaries to set up operations within their confines.
Needles in 2012 became the first municipality in San Bernardino County to permit and license dispensaries. This occurred some four years before California voters passed the Adult Use of Marijuana Act, Proposition 64, in 2016, making the use of marijuana for its intoxicative effect legal for those 21 years of age or older. Progressives hailed Needles’ 2012 action while traditionalists were opposed to it.
Terral came into office in 2018, as Needles was involved in a competition with another cash-strapped San Bernardino County city, Adelanto, in an effort to exploit the liberalization of California’s marijuana laws to get in on the ground floor of the commercialization of marijuana, by permitting widespread operation of marijuana cultivation facilities and marijuana boutiques and retail stores and layering a sales/operation tax on those entities to generate revenue.
As a conservative Republican who was potentially looking toward higher office, Terral was torn between the ethos of the city and the city council he was a part of and the Republican Party, which hewed more toward the historical attitude that marijuana and its use is adverse to an orderly and civilized society.
Abiding by the strictures of Terral’s party-affiliation and socially conservative roots was put to the test when in 2019 his wife was offered a lucrative job at a marijuana-related commercial operation in Needles. In the end, she elected not to go to work there because of the suggestion this would entail a conflict on her husband’s part whenever issues relating to cannabis commercial activity came before the city council. Not having his wife entangled with the cannabis industry preserved for Terral his reputation as a true red rock-ribbed Republican.
At this point, however, Terral’s political ambition appears to have abandoned him, and he on Tuesday announced he was giving up the elective office he held. Incumbency is, electoral statistics show, an advantage in being reelected to the office one holds as well as a relative advantage when seeking another elective office. It would thus appear that holding onto the office of city councilman or vying for another elective post such as state assemblyman or state senator is no longer a priority for Terral.
The 52-year-old cited personal and business reasons for tendering his resignation. He is employed as a cable company technician and his parents operate a local bed and breakfast inn.
Terral’s resignation from the Needles City Council is the second one from that august panel in two years. Former Councilman Clayton Hazlewood resigned his office on December 10, 2019.
-Mark Gutglueck

Stealthily, Upland city officials this week took two crucial steps toward committing Upland residents to assuming $130 million in bonded indebtedness intended to cover the city’s existing and growing pension costs.
There are yet multiple questions about the city’s intended issuance of pension obligation bonds that Upland officials have sought to avoid answering, at least in part because they do not want to draw attention to the effort to qualify the city to issue the bonds, the process for which can over the next 30 days be challenged by the city’s taxpayers.
In California, additional taxes are not to be levied unless they are first approved by a majority of voters who are to pay them. Cities often use bonds as a type of funding for city operations and to defray the cost of civic improvements and infrastructure. A governmental entity will issue, or create, bonds and thereupon sell them at an amount equal to their face value at a specific interest rate to buyers. That governmental entity will then use the proceeds from the bond sales as it deems fit or previously specified, usually, but not necessarily, to build roads or structures, undertake capital improvements or construct new, expand existing or refurbish or upgrade city assets such as, for example, water resources in the form of wells, reservoirs, cisterns, aqueducts, mains or pipes. The city thereafter pays to the bondbuyers each year an installment on the debt equal to the percentage of the bonds specified when issued. Thus, a bond buyer who purchases a bond with a face value of $100,000 at 6 percent would see a return of $6,000 per year for the number of years that the bond is dedicated, generally 20, 25, 30 or 35 years. At the end of that dedicated time, the bond is said to have reached maturity. Upon the bond maturing, the city pays the holder the face value of the bond. This retires the city’s bonded indebtedness to that bondholder in full.
In this case the city is looking to issue bonds not to pay for tangible capital improvements or infrastructure, but to retire existing debt created by runaway pension costs. The issuance of the bonds will not address ongoing pension obligations that will continue to accrue into the future.
To issue most municipal bonds, a majority vote of a city’s voters is required. There are exceptions made with certain types of bonds, such as so-called certificates of participation, certificates of obligation and pension obligation bonds.
A city can avoid having to get voter approval for participation or obligation certificates or for pension obligation bonds by engaging in what is called a validation process. This entails the city lodging a validation complaint in a local court, inviting anyone of standing or with an interest in the matter, which generally means the city’s residents, to contest the proposed issuance of the bonds by stating reasons why they should not be issued. Pleadings and hearings then ensue before a judge who ultimately determines whether the bonds should or should not be issued. The public is given notice of the validation action by an obscure ad in a local newspaper. If no one comes forth to contest the matter in court within 30 days, the city is then at liberty to make the bond issuance.
This week, secretively so as not to alert Upland residents, the Upland City Council at its Monday night meeting voted to hire J.P. Morgan Securities LLC and Stifel, Nicolaus & Company, Incorporated to serve as the managing and co-managing underwriters, respectively, for the city’s proposed issuance of pension obligation bonds. The council did so without any discussion whatsoever, as the vote to retain the underwriters had been placed on that evening’s consent calendar.
The consent calendar by tradition is reserved for routine and non-controversial matters. Multiple items are strung together on the consent calendar, and instead of being considered and voted upon separately, they are taken up collectively without any comment or discussion and are voted upon in one fell swoop with a single vote.
By quietly voting on the matter relating to the hiring of the bond underwriting team, the council sidestepped informing the public about what it was doing.
Three days later, on Thursday August 12, the city again quietly filed a summons naming no single individual but a collective, that being “all persons.”
“You are being sued,” the summons to participate in the validation process reads in part. “You have 30 calendar days after this summons and legal papers are served on you to file a written response.” That service will consist of a newspaper notice that is anticipated to be published in the next few days.
If no challenge to the validation is made within the 30-day timeframe, no further opportunity to stop the bond sale will be available to Upland’s residents, who will bear the cost of servicing the bond debt at the percentage specified on the bonds and ultimately by paying the full amount of the issuance upon the bonds reaching maturity.
In the same way they have hidden the move toward the issuance of the bonds and the validation proceeding from Upland’s residents, Upland officials have been parsimonious with regard to information about the bonds themselves.
A document issued by the city in March 2021 indicated the city’s unfunded pension liability – that is, its currently outstanding debt to cover the payments it must make to the California Public Employees Retirement System to cover the cost of the pensions paid to currently retired former Upland City employees and the anticipated cost of paying current employees – had reached $130,186,277. That amount had climbed from $120,920,721 as of June 30, 2020, which was nearly $9 million more than the $112,039,675 it had been at the midway point of fiscal year 2019-20 on December 31, 2019, which was up more than $12 million from $99,976,917 as of June 30, 2019. In the last two years, Upland’s pension debt escalation has been historically steep. Over the previous seven years, the city’s pension debt had grown by roughly $11 million. Upland’s unfunded pension liability was $88,994,066 as of June 30, 2012.
When city officials took up the question in earnest last year about what it was going to do regarding the escalating pension costs that are eating up more and more of the city’s operating budget each succeeding year, they turned to Urban Futures, which offers municipal management and financial consulting services, for advice on possible solutions. Urban Futures, which formerly employed then-Assistant City Manager Steven Parker who is now serving in the role of acting city manager,  pushed the city council unrelentingly toward the option of issuing pension obligation bonds as a ploy to refinance the pension debt at a lower rate than the 7 percent expected return on investments that the California Public Employees Retirement System functions under. Undisclosed was that after the city council accepted Urban Futures’ advice and upon resolving to issue pension obligation bonds, it committed to pay Urban Futures $62,500 when the issuance of the bonds takes place. In this way the city council is relying upon an advisor with a financial stake in the advice it is providing to the city and the city council.
The Government Finance Officers Association has issued advisories against pension obligation bonds, calling them risky gambles with public money, saying strategies involving them are akin to using a newly-issued credit card to pay off existing credit card debt.
Prior to the 2020 election, then-Third District city council candidate Carlos Garcia and then-treasurer candidate Greg Bradley issued cautions to the city council about the advisability of utilizing pension obligation bonds to come to terms with Upland’s ongoing pension debt.
Garcia said the city should not “blindly” rely on pension obligation bonds as a solution to overcome the pension funding crisis, and he called upon city officials to think through the consequences of issuing bonds before doing so.
Bradley said, “I would insist that we have a plan to stop adding new debt before we consider a bond to push off old debt. You can’t get out of debt while you’re adding new debt.”
Both Garcia and Bradley were elected. Now in office, they have, under heavy lobbying by Urban Futures, essentially gone along with Parker in his agenda to issue the bonds.
Notably, much of the pension obligation bonds strategy in Upland remains shrouded in mystery. Different figures as to the size of the issuance have been thrown around. A city document gives Upland’s unfunded pension liability as of March of this year as $130,186,277. Urban Futures managing director Julio Morales pegged Upland’s outstanding pension liability at $120 million, and at one point he indicated the plan was to have the city issue bonds in that amount. Bradley, however, told the Sentinel that the initial issuance would only be $10 million, to be followed by future issuances.
Another issue not fully put to rest is whether or not the city will utilize the proceeds from the sale, borrowed at a low interest rate, to make investments that will hopefully provide returns at a much higher interest rate, and then use the earnings generated as a consequence of the difference to pay down the city’s pension debt. At one point, city officials said that was the plan. More recently, however, word is that the city will issue the bonds and then turn the proceeds over to the California Public Employees Retirement System to invest them. City officials are in no hurry to clear up that discrepancy.
Available city documents state that Best Best & Krieger, the law firm with which Upland City Attorney Steve Deitsch is a partner, will serve as bond counsel with regard to the bond issuance, and receive $45,000 for doing so. Another city document states that the law firm of Stradling Yocca Carlson & Rauth will receive $36,500 for serving as disclosure counsel with regard to the issuance of the bonds. Unclear, however, is whether the figures quoted pertain to an issuance of $10 million in bonds as referenced by Bradley, the $120 million referenced by Morales or the $130,186,277 in unfunded pension liability the city had accrued as of five months ago.
Bradley told the Sentinel that with historically low interest rate of 2.6 percent at present, if the city is to go the pension obligation bond route it would be best to take advantage of that rate, which he said is likely to creep up in the upcoming months, and issue $130 million worth of bonds at once. Bradley acknowledged, however, that he did not know if that was going to be the case. He said that even though he was the city’s treasurer and the node through which all financial information pertaining to the city should flow, Parker and Urban Futures had not made clear to him precisely what the strategy is or the timing on the issuances.
Neither Garcia nor Councilwoman Janice Elliott was able to tell the Sentinel whether the quoted bond counsel and disclosure counsel fees for, respectively, Best Best & Krieger and Stradling Yocca Carlson & Rauth were for a $10 million bond issuance or a $130 million issuance. Neither Garcia nor Elliott responded to whether they believed Urban Futures had involved itself in a conflict of interest by serving in the capacity of guiding the city on the advisability of issuing pension obligation bonds as a strategy to come to terms with the city’s pension debt and then taking on an assignment of providing ancillary professional services relating to the issuance of pension obligations for which it would receive fees. Both Garcia and Elliott balked at explaining why the city council was consistently putting all of its action relating to the issuance of pension obligation bonds on the council’s consent calendar, as it did this week, on May 10 and on April 26. Nor would they say if they truly believed the issuance of $130 million in pension obligation bonds without the approval of Upland’s voters qualified as being noncontroversial.
Elliott said she had “tremendous confidence” in Parker, and he was doing “an outstanding job as our city manager.”
The Sentinel spoke with Upland City Clerk Keri Johnson about who at City Hall makes decisions about what items are reserved for the consent calendar.
“The city manager has the final say,” she said.
Asked specifically who had put the issues relating to the bond issuance on the consent calendars for the April 26 meeting, the May 10 meeting and this week’s meeting, Johnson said, “If you are asking where agenda items are placed, you really should be speaking with the city manager’s office.”
-Mark Gutglueck

In a development of significant historical and social note, the Fontana Police Department this week released the video from the bodyworn camera of its officer who fatally shot an unarmed burglar who had fled and hid after he was interrupted by the police during a home break-in.
The Fontana Police Department has a tradition of virulently protecting its officers from any second-guessing by the public with regard to the way they conduct themselves in the field, a policy which has extended to the fatal shootings of civilians in the past as well as in cases where objective community standards suggest officers overstepped their authority.
A confluence of factors in this case, including extremes the department went to in its effort to keep the video under wraps and certain misrepresentations made by members of the department in seeking to justify the shooting contrasted with a million dollar payout to the dead man’s family, ultimately forced the department’s hand.
The video captures the February 13 shooting of Daverion Deauntre Kinard by Police Officer Johnny Tuitivake.
There have been conflicting accounts provided by the department itself as to how the events leading up to the deadly confrontation between Tuitavake and Kinard came about.
Two days after the event in February, the department said that on the evening of February 13, 2021, a resident of a home in the 16500 block of Casa Grande Avenue in north Fontana who was not present at the residence was alerted, through a video surveillance and digital relay and notification system, that there was an intruder on her property. The homeowner contacted the police department, which dispatched officers, including one subsequently identified as Johnny Tuitavake, to the Casa Grande location.
However, yesterday the department released the audio of a 911 call in which an off-duty Los Angeles police officer and his wife, residents on Casa Grande Avenue, are heard telling a police dispatcher that a man in a black hoodie was apparently trying to gain entry to a neighbor’s home.
Also released was footage from a video surveillance system showing a man subsequently determined to be Kinard on the porch of the home, removing a window screen, walking off with it and then returning.
Kinard, 29, had a history of burglary arrests. As of the February 13 incident, Kinard was on a probational release related to a previous burglary conviction, and was avoiding incarceration by having agreed to engage in no further violations of the law and submit to supervision. At the time of the shooting, the police department had not identified Kinard as the suspect its officers were dealing with.
Upon reaching the home on the north side of the street where the burglary was reported as taking place, a body video cam and accompanying audio shows officers locating the open window from which the screen had been removed and through which Kinard had apparently gained entry. The video shows officers peering inside with the assistance of a flashlight beam, and one calls out their presence. After a momentary delay, Kinard can be seen coming out of a room toward the middle of the house into a hallway. Ignoring the officers’ shouts and demands that he not move, Kinard exited the rear of the house, at that point outside the body cam’s field of view, and took flight. A choppy video of the pursuit from one of the body cams shows the officers giving pursuit, with the video librating between total black and slightly better visibility as the lighting conditions change with the officer’s rapid movement.
According to the police department, Kinard scaled three walls and ran through backyards in his escape attempt. Kinard headed into a tract of homes under construction south of Casa Grande Avenue at the southwest corner of Justin Street and Heinz Way, where he took refuge inside a portable enclosed toilet stall, which the police department said was roughly 1,000 feet away from the home Kinard had been burglarizing.
Footage from Tuitavake’s body cam shows him approaching the portajohn located within a remote corner of the residential construction site hemmed in by block walls. Tuitavake is seen opening the door to the portable toilet with his left hand, and visible in the bright glow of the flashlight held in his right hand is Kinard, who is seated, relatively immobile, within the portacabin. Kinard gestures with his left hand, holding it palm up. Tuitavake lets go of the door, which begins to close, but just before it reaches the jamb, he reaches out with his right hand in which he is still holding the flashlight, the beam of which has at that point turned momentarily downward, and slaps the door open once more while simultaneously drawing his gun with his left hand. He fires it at once, a single shot. Immediately upon the sound of gunfire, Kinard can be heard making a load and short-lived plaintive moan, “Ohh,” after which he seems to have blacked out.
According to Fontana Police Chief Billy Green, Tuitavake opened fire roughly two-and-a-half seconds after he initially opened the toilet stall door.
Green in a video statement accompanying the release of the footage emphasized that when Tuitavake opened the door the first time, Kinard was seated with his arms folded and neither hand visible. Green displayed a still isolated from the video showing Kinard’s right hand still obscured when he lifted his left hand.
Green said Kinard “began to roll his right hand forward toward the officer, revealing a metallic object.” A grainy closeup of a still from the video showed what appeared to be a compact and indistinct light-colored object in his right hand that appeared too small to be a gun. Green said the object was later determined to be a lighter. An unverified report to the Sentinel was that it was a plastic lighter.
Other footage released by the department shows Tuitavake in the immediate aftermath of the shooting seeking to render assistance to Kinard. Tuitavake is heard saying, “Hey bro, breathe for me” and “I gotcha.”
Further footage shows other officers with Tuitavake tending to Kinard in the relatively tight confines around the entrance into the portable toilet. Those efforts were in vain, as Kinard’s aorta had been ruptured by the gunshot. He died at the scene.
Tuitavake, as is standard procedure, was placed on paid administrative leave in the near aftermath of the shooting. The department’s internal affairs division, however, made a determination that he had not acted improperly, and he was reinstated.
Simultaneously, the department moved to stem any controversy pertaining to the shooting.
At that point, Tuitavake had not been identified as the officer involved in the shooting. Nevertheless, there was an immediate clamoring for the release of the video footage from the responsible officer’s body cam. The city and the police department refused, even in the face of California law which requires that footage of police shootings must be made public within 45 days of such an occurrence. The department denied the requests, citing the need to protect the integrity of its investigation of the shooting and the safety of witnesses.
After Tuitavake was reinstated to duty, the department yet defied calls for the release of the relevant video material. Pushed as to why, a department spokesman said there were concerns that the video in the hands of the public would lead to civil unrest and rioting.
The department put out some factually inaccurate information meant to reduce public anxiety over what had occurred, including statements that Kinard was rushing the officer when he was shot.
Kinard’s bereaved parents, Amond Hawkins and Kenisha Kinard, represented by the Law Firm of Douglas Hicks Simplis & Perez, in March lodged a claim against the city based on the death of their son.
A claim against a municipal entity is a precursor to a lawsuit. Under California law, those intent on suing a city must first lodge a claim, which the city can acknowledge and settle upon terms deemed suitable by both parties. A city has six months to reject or accept a claim. If a claim is rejected or if six months elapses, the aggrieved party can then proceed with a lawsuit.
In relatively short order, the City of Fontana came to terms with Douglas Hicks Simplis & Perez over the Hawkins/Kinard claim, agreeing to provide Daverion Kinard’s parents with $1 million to settle the claim in its entirety. Under the terms they reached with the city, the $1 million they are receiving is considered a full and final settlement of their claim, they agreed to make no public comment with regard to the shooting nor any comments about the city or the department that might be interpreted as “disparaging” and they dropped their demand that the video be publicly released. Indeed, according to Police Chief Green, both Amond Hawkins and Kenisha Kinard wanted Tuitavake’s bodycam video footage kept out of the public domain to preserve, Green said, Daverion Kinard’s dignity.
The announcement last week of the $1 million settlement, however, provoked considerable concern and skepticism. A $1 million payout to the parents of a burglar who was shot and killed by police after he was caught in the act during a break-in and then attempted to flee, in particular given that the police department had made a finding that the officer who had fired the fatal shot had done nothing illegal, wrong or out of department policy was difficult for a large number of people to swallow. Under California law and court precedent, a law enforcement officer is at liberty to use deadly force against a fleeing felon if in the officer’s judgment the individual represents a threat to the officer or others.
At that point, pressure was brought to bear not only on the police department, but City Hall, including Mayor Acquanetta Warren and Councilmen Pete Garcia, John Roberts, Phil Cotharan, Jr. and Jesse Sandoval, as well as City Manager Mark Denny and Assistant City Manager Phil Burum. Citizens were demanding to know why taxpayer money, and a lot of it, was being handed out to the family of a man whose death was the end result of a felony he had perpetrated.
In this way, a decision to release the video was made, with the calculation being that it would demonstrate Kinard was killed when a young police officer panicked and used deadly force against someone who, albeit involved in criminal activity, represented no mortal threat to the officer, making what had befallen Kinard, an unjustifiable use of deadly force.
Indeed, the video has silenced those who had decried the settlement. At the same time, it has now raised questions about Tuitavake’s suitability and continued status as a police officer, and the decision-making process within the police department in which the department’s leadership sought to gloss over the shooting previously and allow Tuitavake to return to duty.
With circumstances now wildly altered, Police Chief Green this week said that Tuitavake is not out of the woods yet. He said the officer, who was welcomed onto the force in February 2019 after graduating from the sheriff’s academy, almost two years to the day before the Kinard shooting, is yet the subject of an investigation by both the Fontana Police Department and the San Bernardino District Attorney’s Office as pertains to his action last February 13.
There is virtually no prospect that the Fontana Police Department will provide findings to the district attorney’s office that would in any way lead to the filing of criminal charges against Tuitavake by the San Bernardino County District Attorney’s Office. Nor would San Bernardino County District Attorney Jason Anderson entertain a criminal filing against Tuitavake or any police officer relating to the fulfilling of his or her duty as a peace officer.
Nevertheless, what was depicted on Tuitavake’s body camera, Kinard’s death and the aftermath of the entire episode, including first the refusal to release the video and now the worldwide scrutiny of the video, could well make Tuitavake’s continuation as a Fontana police officer untenable.
Homegrown in Fontana, Tuitavake yet has family in the city. And while the settlement with Amond Hawkins and Kenisha Kinard renders highly unlikely that they or perhaps family members or those close to them will seek to exact revenge for the shooting of Daverion Kinard, there is no guarantee that others will not. This puts not only Tuitavake at risk but other officers and members of his family as well. The prospect that Tuitavake and his colleagues on the force might find themselves obliged to adopt a hair-trigger on their firearms while at work in the community is not one that augers well for them, the department, the city or its citizens. For that reason, if Tuitavake can find work with another department, it may be better for all involved.
The outside scrutiny and the forced self-examination the department is engaging in in the aftermath of the Kinard shooting is remarkable. There has long been criticism of the insensitivity of, the tactics used and brutality evidenced by the Fontana Police Department. Whereas the vast majority of the community’s members are non-white minorities or Hispanics, historically upwards of 80 percent of the department’s officers are white. The department has made inroads on that by a concerted effort to hire minorities, in particular Latino officers, in recent years, but the department remains vulnerable to suggestions that it has long been and remains a tool of a repressive elite. The department resisted, and resisted mightily, allowing anyone outside of the department to second-guess what the department’s policies and standards were or how it was managed. There has been no shortage of suspects, witnesses, residents, bystanders – both guilty and innocent – who have been roughed up, beaten or killed by Fontana police officers over the years. As recently as a year ago it would have been unthinkable that the police department would be induced, cajoled, persuaded, required or mandated to turn over to anyone evidence pertaining to an officer-involved shooting the department did not want to provide. In the United States following the George Floyd killing in Minneapolis in May 2020, police have now lost their presumed edge of automatic legal advantage/invulnerability. Fontana is apparently not immune from societal trends.
At the same time, it has not been lost upon those who have long decried the Fontana Police Department as a bastion of racism and presumed white privilege, that when it at last threw a police officer under the bus and compromised his vaunted status as a representative of law and authority who need not justify his actions, that officer was not white but rather of Tongan extraction, a so-called member of the protected minority class of Pacific Islanders.
-Mark Gutglueck

By Mark Gutglueck
Former Adelanto Mayor Rich Kerr was arrested today by the FBI on a federal grand jury indictment alleging he accepted more than $57,000 in bribes and kickbacks in exchange for approving ordinances authorizing various types of commercial marijuana activity within the city, and ensuring his co-schemers obtained city licenses or permits authorizing certain commercial marijuana activities.
Richard Allen Kerr, 64, of Adelanto, was taken into federal custody without incident this morning. He is charged with seven counts of honest services wire fraud and two counts of bribery.
Kerr made his initial appearance this afternoon in United States District Court in Riverside for arraignment. He pleaded not guilty and was released upon the posting of a $30,000 bond. He did not waive his right to a speedy trial, which is set to begin on October 4.
According to the indictment returned on August 11, as part of his official duties, Kerr, who served as Adelanto’s mayor from 2014 to 2018, voted on ordinances governing zoning regulations in the city and served on Adelanto’s Cannabis Dispensary Permit Committee, which determined the number of dispensary permits that would be issued and which applicants would receive them.
“Beginning on an unknown date, but no later than on or about November 23, 2015, and continuing until an unknown date but no earlier than on or about June 18, 2018, in San Bernardino County, within the Central District of California, and elsewhere, defendant Richard Allen Kerr, together with others known and unknown to the grand jury, knowingly and with the intent to defraud, devised, participated in, and executed a scheme to defraud the City of Adelanto as to material matters, including by depriving the City of Adelanto of its right to the intangible right of honest services of defendant Kerr, namely, the honest performance of defendant Kerr’s duties as mayor,” the indictment states. “Specifically, defendant Kerr secretly used his official position to enrich himself and his co-schemers by: (1) passing ordinances authorizing various types of commercial marijuana activities, including marijuana cultivation, marijuana distribution and transportation, and retail sales of marijuana via a dispensary; (2) drafting zones for commercial marijuana activities to include locations used by his supporters; and (3) ensuring his supporters obtained the licenses or permits they sought; all in contravention of conflict of interest prohibitions applying to defendant KERR, and in exchange for bribes, kickbacks, gifts, payments, and other things of value.”
As mayor, Kerr supported marijuana legalization, voted in favor of an ordinance authorizing marijuana cultivation in the city, voted in favor of an ordinance authorizing the operation of medical marijuana dispensaries, and voted to authorize the distribution, transportation and testing of medical marijuana, among other commercial marijuana activities. At the same time, Kerr secretly used his official position to enrich himself and his co-schemers by passing these same ordinances, according to the indictment.
Kerr allegedly also drafted zones for commercial marijuana activities to include locations used by his co-schemers, and he ensured they obtained the licenses and permits they sought – in exchange for bribes, kickbacks and gifts.
Kerr’s alleged co-schemers were David Serrano, a lawyer who specialized in plaintiffs’ tort litigation – identified in the indictment as “Person A” – and two individuals – labeled “Person C and “Person D” – who had business interests in the city, including those involving marijuana cultivation.
The bribes and kickbacks were disguised by Kerr and his co-schemers as gifts, donations to a charitable fund, donations to Kerr’s election campaign, or advance payments for the proceeds of planned litigation associated with a motorcycle accident.
In exchange for the bribes and kickbacks, Kerr provided favorable official action on behalf of the city to Serrano, Person C, and other co-schemers with business interests in the city by authorizing various types of commercial marijuana activities, ensuring his supporters obtained the licenses or permits they sought, and interfering with enforcement activities by city officials.
For example, on November 29, 2016, the Adelanto City Council held a public discussion related to an ordinance, including discussion of “overlay zones” within which medical marijuana dispensaries would be located. The initial proposal included two zones, neither of which included a former restaurant known as the Jet Room, which was located on a 2.23 acre lot at 17499 Adelanto Road, the northeast corner of Adelanto Road and Joshua Avenue purchased for $450,000 from Dmitri Manucharyan by Serrano and his wife, Julia Orama-Serrano in a deal in which escrow was entered into on October 3, 2016 and finalized on October 11, 2016.
During the discussion, Kerr requested a change in the boundaries of the second overlay zone, which expanded the zone to include the Jet Room property. The plans for the business initially called for the building to be an attorney’s office, although they included items such as “elongated sales counters,” a “dispensing room,” “cashier,” and “security room,” the indictment alleges.
On December 5, 2016, Kerr deposited a $5,000 check – dated November 29, 2016 – from Serrano’s real estate trust account into his bank account, and the check’s memorandum line read, “ADV XMAS FUND.”
In May 2017, Kerr voted twice in favor of a city ordinance that included Serrano’s business in the marijuana dispensary overlay zone. In February, June and August of 2017, Kerr deposited three $10,000 checks from Serrano’s law firm, with the memorandum lines of each check stating, “ADVANCE.”
In total, Kerr accepted at least $57,500 in bribes and kickbacks from Serrano, Person C and other co-schemers.
An indictment contains allegations that a defendant has committed a crime. Every defendant is presumed innocent until and unless proven guilty beyond a reasonable doubt.
     If convicted of all charges, Kerr would face a statutory maximum sentence of 160 years in federal prison.
The FBI investigated this matter.
Assistant United States Attorney Sean D. Peterson of the Riverside Branch Office is prosecuting this case.