Outgoing San Bernardino Councilman Henry Nickel will not seek a recount of the ballots cast in the November 3 election, despite earlier indicating he would do so.
Nickel, who in March finished first with 1,802 votes for 35.45 percent in a six-candidate race in San Bernardino’s Fifth Ward, was nevertheless forced into a run-off against the second place finisher, Ben Reynoso, with 1,295 votes or 25.48 percent, because neither captured a majority of the vote. Last month, according to the final certified results from the registrar of voters office, Reynoso, with 5,772 votes or 52.74 percent, bested the incumbent Nickel, with 5,172 votes or 47.26 percent.
Nickel was ahead on election night, when 11 of 12 precincts had reported, 2,494 votes or 50.25 percent to 2,469 votes or 49.75 percent. The next morning, with all 12 precincts in Ward 5 reporting, Reynoso had pulled ahead, 3,016 or 50.65 percent to 2,935 or 49.29 percent. Over the next several weeks, as more and more absentee, mail-in and provisional ballots were counted, Reynoso’s lead increased.
Nickel suspects election fraud, stating that Reynoso was endorsed by the union representing the county’s employees, including election workers. He said he wanted a recount, but after learning that carrying out such a tally precinct-by-precinct will cost $192,000, he said he could not afford to proceed. He yet maintains that the election was stolen from him.

The Upland Planning Commission, faced with growing discontent over the city development services director’s insensitivity to the quality of life implications of the juxtaposition of incompatible land uses at various locations around the City of Gracious Living, Wednesday night denied a proposal by Yellow Iron Development to construct a 92,275-square foot warehouse on 11^th Street.
That was a dramatic change from the previous planning commission meeting on November 18, when the planning commission had approved, on a 5-to-2 vote, making a mitigated negative declaration with regard to the project. That vote was seen as an indication that the project was on a trajectory toward final approval. At the November 18 meeting, the commission’s consensus was that the only issue preventing acceptance of the project and its site plan was the need for a greater definition of the nature of the operation that would be run out of the facility once the building was erected.
There were, however, issues that complicated the matter.
In April, the city council had considered and then approved two controversial projects – Bridge Development Partner’s 201,096-square-foot distribution center for on-line retail behemoth Amazon located on 50 acres north of Foothill Boulevard and south of Cable Airport and Frontier Homes’ 65 single family detached residential unit Villa Serena subdivision on 9.2 acres within a 20.3-acre site at the juncture of 15^th Street and 13^th Avenue within the Foothill Knolls neighborhood.
Both the Bridge/Amazon and the Villa Serena projects had been given go-ahead in a process that did not require comprehensive environmental impact reports to certify that the California Environmental Quality Act would be adhered to in their construction. Instead, those projects were subject to the mitigated negative declaration process. A mitigated negative declaration utilizes the city’s elected officials in the form of the city council or the appointed members of the planning commission to sign off on an assurance that the consequences of the project will not adversely impact the district wherein those projects are to be placed, nearby neighborhoods or the city overall, nor overwhelm the infrastructure and utilities serving the area.
In the cases of both the Bridge/Amazon and Villa Serena projects, there were significant numbers of Upland residents who believed those undertakings represented potential and real untoward impacts on the surrounding neighborhoods, districts and city as a whole. They formed citizens committees – Upland Community First and Friends of Upland Wetlands, respectively – which sued the city over the project approvals, seeking rescission of the project approvals until such time as the city carried out a full-blown environmental impact report with regard to each before again considering them and granting them an entitlement to proceed. Both projects remain tied up in the courts.
Of note was that both the Bridge/Amazon and Villa Serena projects had been processed by the city’s development services/planning division, under the leadership of Upland Development Services Director Robert Dalquest. Dalquest has cultivated a reputation for indulging the development community in its efforts to obtain project approval through allowing proposed projects to proceed using the least exacting methods of obtaining environmental certification, such as a mitigated negative declaration, rather than a full-fledged environmental impact report, which is much more comprehensive and much more expensive for the proponent. Many Upland residents had, accordingly, developed concerns that the city was in this way allowing builders and the development community to cut corners with regard to incorporating into their projects elements that would eliminate, decrease, lessen or offset the impacts those developments would have on already existing and future nearby homes, businesses and properties as well as the infrastructure in the immediate area of where the new development was to occur. This included impacts on streets and traffic, air and water quality, use of utilities, and other ambient conditions.
When the city planning and development services divisions took up the application by Yellow Iron Development to construct what was described as a warehouse on the south side of 11^th Street between Central Avenue and Monte Vista Avenue, a cross section of residents already had misgivings that city officials with discretion over the matter would evince greater concern for the developer and the sentiments of a decidedly pro-development city council headed by Mayor Debbie Stone than for the residents of the area. When the approval of the project was delegated to the planning commission, an appointed rather than an elected body, the distrust of city officials and Dalquest heightened.
At issue was that across 11^th Street to the north and slightly to the west was the existing and nearly completed Harvest residential subdivision with 318 dwelling units, while across the street slightly to the east was the site for the approved-but-yet-to-be-initiated Enclave development, which is to consist of 192 condominiums and townhomes.
City officials had done little to notify or alarm the existing residents within the Harvest neighborhood that a warehouse facility, which could involve, variously, light industrial manufacturing activity or warehousing and distribution operations or some other type of industrial functions, was on the verge of being permitted to set up shop within shouting distance of their homes.
An issue that was not fully addressed by Dalquest and the remainder of city staff in its preparation for the documentation for the proposed project’s consideration at the November 18 meeting was the intensity of use that will take place in, at and around the facility once it is built. Based on the city staff report and Yellow Iron Development’s representations, the eventual use was to relate to some order of a distribution operation rather than a manufacturing one.
An analysis of known and indefinite factors relating to the project and the property upon which it is proposed to stand indicated that the eventual tenant would be called upon to spend roughly $92,000 in basic rent per month or $1.1 million per year to occupy the proposed building, based upon a $1 per square foot per month rental cost, which falls within the average rate in Southern California. Leasing would only be a percentage of a warehouse’s operating costs. In addition, other cost elements to open the doors of a warehouse or distribution facility and make it operational would be involved, including but not limited to the provision of utilities, purchase of and debt service for the acquisition of equipment, vehicles and furnishings, plant maintenance, insurance, taxes and personnel. These combined costs could zoom to as much as $500,000 per month. In order to meet this financial burden, an energetic and intensive warehouse operation would be required, entailing trucks flowing in and out all day long, perhaps in three shifts per day. Yet, based upon what was said at the November 18 meeting, the eventual tenant was to be prevented, from the outstart, from operating more than a very small number of trucks, including those engaged in bringing merchandise into the warehouse and vehicles loaded with merchandise being dispatched from the warehouse for either wholesale or retail delivery. This limitation seemed as if it was going to reduce considerably the number of entities that would be willing to locate on the property, since the ability to generate sufficient income as a going concern involved in warehousing and delivery would likewise be diminished, perhaps to below that which would be profitable.
During the November 18 public hearing for the warehouse project, none of the residents of the Harvest neighborhood were present to provide input or offer their reaction to the project proposal, either as a show of protest or reservation with regard to its potential impacts or support for its placement less than one-fortieth of a mile from the entrance into their gated community.
The November 18 meeting agenda entailed staff’s presentation of the project, including its recommendation that the project be given go-ahead, a public hearing in which city residents and any others could be heard with regard to the issue, a vote which was to be joined in by members of the Airport Land Use Committee with regard to a finding that the project is consistent with the Cable Airport Land Use Compatibility Plan, a vote to make a mitigated negative declaration that the project is in compliance with the California Environmental Quality Act, and a vote to approve the development plan for the project.
Entirely foreclosed was the possibility that a comprehensive environmental impact report for the project would be completed. Indeed, during the public hearing, Yellow Iron Development’s principal, Tony Spinrad, asserted his initial position that no environmental study of any sort was needed for the project.
“This is not a 50-acre site,” Spinrad said. “There are not 1,400 parking spots on here. There are 11 truck positions, and so this isn’t going to be thousands of vehicles on the streets. This is going to be what we’ve studied. It’s a relatively small site. It’s under five acres. The building is less than a hundred thousand square feet. So initially, we came in and we were hoping to do a CEQA [California Environmental Quality Act] exemption, and [Upland Associate Planner] Joshua Winter, Bob [Dalquest] and the city, they felt it was important to do the studies, and so, I think they’ve done a great job, and I appreciated working with them this year.”
In Spinrad’s parlance, the term “studies” meant data assembled for the planning commission to make its mitigated negative declaration, rather than an actual environmental impact report.
After Upland Land Use Committee Member Ronald Campbell joined with the planning commission in making a finding that the proposed project is consistent with the Cable Airport Land Use Compatibility Plan, the commission moved its focus to whether making a mitigated negative declaration was sufficient to give the project environmental certification.
The planning commission as a whole on November 18 came across as relatively cavalier with regard to its role of looking after the interests of the nearby residents who would, upon the completion of the project, have to live with its impact, though a two-member minority of that panel – Gary Schwary and Christine Caldwell – gave indication they were sensitive to the land use incompatibility represented by a warehouse being located close to more than 500 homes. Both Schwary and Caldwell opposed providing the project with a negative declaration. In her comments, Caldwell voiced the view that a warehouse proximate to the existing Harvest subdivision with its 318 dwelling units and the approved-but-yet-to-be-initiated Enclave development, with 192 condominiums and townhomes, was an incompatible use. The commission, with commissioners Robin Aspinall, Carolyn Anderson, Thomas Grahn, Serge Mayer and Patrick Shim prevailing, voted to make the mitigated negative declaration for the project.
After that vote, the discussion on November 18 turned to the approval of the development plan review for the project, which would be tantamount to approval of the project itself and permission for Yellow Iron Development to proceed. It was during his interchange with Spinrad that Schwary locked onto what for many was a troubling aspect of the warehouse project, that being the lack of definition with regard to the project itself.
“We don’t know exactly who our tenant is going to be yet,” Spinrad said. “We have been talking to [prospective] tenants.”
The inexactitude of the eventual use had proven disconcerting for more than a smattering of civic activists. The zoning on the property is light industrial, which, according to city officials, would allow the warehouse, once it is completed, to house various types of operations, including manufacturing and a distribution facility, although some city residents dispute the latter. There was an incident earlier this year in which a conversation between Dalquest and the current city attorney, Steven Flower, that took place during a break at a council meeting was captured on the audio portion of the video of that meeting. The exchange between Dalquest and Flower demonstrated that neither of them were fully convinced that a distribution facility is allowable under the city’s light industrial designation. During the November 18 meeting, Steve Bierbaum, an Upland resident, suggested that the city’s light industrial zoning did not square with that of a warehouse facility, from which dozens, scores or even hundreds of vehicles might be dispatched on a daily basis, and to which large trucks, including 18-wheelers, would be making frequent deliveries. Dalquest offered a statement to indicate that the city’s light industrial zoning description could be stretched or be interpreted to permit warehouse uses.
Despite his acknowledgment that the facility was going to be some order of distribution warehouse, Spinrad attempted to downplay the intensity of vehicle traffic that use would generate. Indeed, so intent was he in minimalizing that aspect of the operations that were to eventually take place at the site, he may have inadvertently triggered scrutiny of the project that would ultimately lead to its rejection by the planning commission this week, on December 9. A representation made by both Spinrad and city staff at the November 18 planning commission hearing was that the total vehicle trips into and out of the facility per day would be limited to no more than 250. According to statements made during the course of the meeting, the “equivalent total” of vehicles anticipated at the warehouse is 214 daily, including 130 involving passenger cars and 34 involving trucks, specifically six two-axle trucks, eight three axle trucks and a quantity of 20 four-axle trucks, the last of these presumed to be 18-wheelers. That entailed what was for many observers a glaring paradox: How could Spinrad, who said he had no idea of who the eventual tenant at the warehouse would be, they asked, know how little or how much truck and delivery vehicle traffic into and out of the warehouse facility would take place?
During the November 18 planning commission hearing, Spinrad evinced a willingness to reassure the members of the planning commission that the eventual operation at the warehouse, whatever it entailed, would not be an onerous one and would not impinge on the nearby properties. In this way, the 214-vehicle/34-truck limitation claim seemed to have evolved out of an apparent concern with regard to the facility’s proximity to the Harvest and Enclave subdivisions. In a clever ploy at deflection, Spinrad offered that proposed limitation with the caveat that if the operations at the warehouse could not confine themselves to the 250 vehicle trips per day limit, either Yellow Iron Development or the tenant would be willing to be bound by a requirement to return to the planning commission to seek clearance, which might not necessarily be granted, to increase that truck activity. This immediately struck many of those in attendance at the meeting as implausible, and a manipulation of the approval process that was intended to allow a far more onerous degree of activity that would be incompatible with the project’s surroundings than was being openly acknowledged at the meeting. The developer was seeking approval of a project in which the exact nature of the operation and the precise or even approximate number of vehicles it would entail was unknown. The apparent plan was to get the planning commission’s assent for Yellow Iron Development to proceed with the project on the basis of the representation that the eventual operations at the facility would involve only a modest degree of added truck traffic, with a clause built into the project approval that would allow the truck travel into and out of the facility to dramatically escalate once the building was built and the warehouse/delivery operations were in place. The calculation was that the planning commission or city council in the future would not be likely to deny that request for an increase in vehicular intensity if that meant shutting down an operation that was up and running and employing hundreds of drivers and warehouse workers.
While few in the Upland community were focused on the warehouse proposal, the relative handful of people who were had come to the conclusion that Yellow Iron Development and Spinrad were purposefully under-representing the intensity of the future use of the property in an effort to obtain an entitlement for Yellow Iron Development to proceed. Given Dalquest’s experience and level of sophistication, it was highly unlikely that he could have misunderstood the situation or that the necessity of Yellow Iron Development’s tenant engaging in a very intensive use of the property could have escaped him. The circumstance implied that Dalquest and city staff were knowingly going along with the misrepresentation as to the intensity of use at the proposed warehouse, knowing that once operations were at full swing there, vehicle trips into and out of the facility will approach or exceed a thousand per day.
Among those addressing the planning commission on November 18 with regard to the Yellow Iron warehouse proposal was Carlos Garcia, who was elected on November 3 to fill the vacant position on the city council representing Upland’s Third District, in which the proposed Yellow Iron Development warehouse project site and the Harvest and Enclave subdivisions are located. Speaking as an Upland resident rather than in his role as councilman-elect, Garcia told the planning commission he believed the warehouse would have an impact on the neighborhood, and he expressed the view that the warehouse as proposed does not fit the light industrial business park description contained in the city’s zoning code and, as such, is an incompatible use adjacent to a residential neighborhood. Of the truck traffic the warehouse will generate, Garcia said, “There is one way in and one way out,” noting, “We have already seen 18 wheelers on 11^th Street.” Garcia further alluded to the mystery relating to who will actually occupy the warehouse once it is built, saying Yellow Iron Development was “creating a project there, but do we have a tenant? There is nothing solid or concrete. There is nothing to tell us what is actually moving in there, so we can know the impact.”
On November 18, Planning Commissioner Schwary alluded to the disconnect between what Spinrad was saying he was proposing and how the project would eventually prove out once it was built. In this respect, Dalquest appeared to be providing Yellow Iron a certain degree of wiggle room by saying that if it turned out in the future that the eventual tenant needed to utilize the property with a greater degree of intensity than was being conceded that evening, the tenant would be obliged to return to the planning commission to seek permission to intensify the use.
Schwary dryly stated that such under-representations had been made to the planning commission in the past. “We’ve kind of had a crash course on this recently,” Schwary said. He then gave indication that there was, for him, too much vagary in what Spinrad and Yellow Iron were offering, which the eventual tenant at the warehouse would be able to drive, literally, scores or even hundreds of Mack trucks through on a daily basis.
“I think that what needs to be done is to give a clearer, more definitive number for the residents on how many trucks are going to come in,” Schwary said.
Politely, Schwary referenced the somewhat absurd suggestion Spinrad had made in seeking to minimize the intensity of use at the 92,275-square foot warehouse building by referring to it as a “mom and pop” operation, obliquely indicating his skepticism.
“I understand when you don’t have a tenant you don’t know that, but then I hear mom and pop,” Schwary said. “We need to go beyond that.”
Schwary reacted to Spinrad’s statement that he would be able to get the eventual tenant to erect signs near or at the exit from the warehouse property instructing truck drivers not to transit through the nearby residential neighborhoods or the streets adjacent to them.
“You can put ups signs all you want, but we know that truck drivers will just want to get to where they go quickly,” he said. Schwary then asked of the city’s legal counsel, “Can we fine the tenant if these trucks don’t go the route?” That did not provoke a definitive response. Schwary then said, “There is no need for any residents to have trucks go through their neighborhood. I want to see a limit on the amount of trucks, but we can’t do that until we know what kind of tenant you have.”
Though the commission did sign off on the mitigated negative declaration for the project earlier in the meeting, the commission, at Schwary’s prompting, postponed until the December 9 planning commission meeting voting with regard to the development plan review for the project. Still, based upon the comments of the commissioners, including Schwary, approval of the project at the December 9 meeting seemed virtually assured, with Spinrad needing only to flesh out a few particulars with regard to the nature of the operations that would eventually be housed in the warehouse, and provide definite numbers in terms of the trucks bringing material in and delivery vans being dispatched from the warehouse.
The December 9 meeting was held remotely by means of a video/audio hook-up rather than at City Hall, in deference to the recent coronavirus pandemic flare-up. It appeared the project was rapidly advancing toward approval. It was reported that no definite tenant to occupy the warehouse had yet been found, but it was claimed that an assurance could be given to the community with regard to a reduction in truck traffic emanating from the warehouse. The estimation of 214-vehicles, of which 34 would be trucks, operating out of the facility had been scaled back, the commission was told, such that “the project would generate a total of 164 vehicle trips, inclusive of 130 passenger cars and 34 truck trips,” according to a visual display provided by Associate Planner Joshua Winter.  According to that same graphic, “Actual peak hour trips [would consist of] ten passenger vehicles and one truck trips” in the morning and “14 passenger vehicles, three four-axle trucks and one three-axle truck trips” in the afternoon or evening. Staff again recommended that the development plan be approved.
Schwary at once raised the issue of the hours of operation at the facility. The conditions of project approval put forth by staff stated that the hours of operation were not limited.
“It’s not something they were willing or wanting to implement on this project because they don’t want to limit any future tenant,” Joshua Winter, the associate planner for the city who had shepherded Yellow Iron through the application process said of the request that operational hours be limited. “I didn’t want to add that as a burden in getting tenants into the building.”
For observers, the applicant’s unwillingness to specify the hours of operation was an indication that Spinrad had been prevaricating about the intensity of use the project would entail.
Schwary said some order of binding restrictions had to be placed on the trucks.  “It’s not fair to the residents to have trucks going through their neighborhood,” he said.
Momentarily diverting the focus from the hours of operation, Dalquest suggested the city could specify a truck route using instructions to the truck drivers and signage, and employ the city’s code enforcement division and fines to ensure compliance. Winter said that the fines could be imposed on the operator and property owner in addition to the drivers. Schwary countered that it was unrealistic to think that an already thinly staffed and overwhelmed code enforcement division could ride herd on all of the truck traffic emanating form the site. “I want to make sure we do everything possible to make it less of a burden on the residents,” Schwary said. ” So, I want to make sure on the front end the applicant is aware that there is going to have to be some kind of compromising operations to make sure the residents are protected to a degree.”
Upon the public hearing portion of the meeting being initiated, there was some interchange between the members of the commission and Spinrad that dwelt for the most part on the adjustments to the building design and landscaping in which the general tenor of Sprinrad’s cooperative attitude with regard to the commission’s suggestions seemed to presage approval of the project.
The proponent’s prospects turned, however, when Spinrad made the assertion that “The project is a CEQA [California Environmental Quality Act] exempt site,” stating that the project was consistent with the general plan and the city’s zoning code, was contained within a five-acre site, was not a habitat for any endangered species, that approval of the project would not result in any significant effects relating to traffic, noise, air quality or water quality; and that the site would be adequately served by all required utilities and public services. Spinrad expressed his belief that Yellow Iron Development had gone beyond what was required in terms of subjecting the project proposal to the mitigated negative declaration process, which he suggested was superfluous since the project was exempt from the California Environmental Quality Act. This ran counter to the overarching attitude of many of the city’s residents who had taken an interest in the project. Spinrad’s faux pas in making that assertion appeared to trigger an attitudinal change on the part of the commission.
 Inadvertently, Spinrad in referencing the project impacts with regard to traffic and noise, while confidently assuming those issues had been safely put to bed, stepped on a landmine. Somewhat arrogantly, Sprinard said, “Out of an abundance of caution the MND [mitigated negative declaration] was put together and there are no significant environmental impacts.”
Spinrad was at something of a disadvantage. In providing noticing for the project application and the November 18 planning commission hearing on the project, according to Winter, between 15 and 20 homes in the Harvest subdivision had been provided with an alert that the discussion and possible action with regard to the approval of a warehouse proposal was to take place. When no residents from the Harvest neighborhood had shown up on November 18, the proponents for Yellow Iron’s project took that as an indication that there was no opposition to the project to speak of, which Spinrad this week bootstrapped up into his assertion that there were of no significant environmental impacts from the project as proposed. No further official noticing of the pending approval of the project at the December 9 meeting was given, and Spinrad anticipated that once more there would be no reaction from nearby residents. What Spinrad did not know was that between the November 18 meeting and the December 9 meeting, flyers and other informational materials relating to the project proposal had been distributed to 228 households within the Harvest neighborhood, accounting for virtually all of the completed and occupied single family units there.
While Spinrad said Yellow Iron was amenable to inserting restrictions into the leases for the warehouse notifying operators of the penalties to be imposed on those operators, trucking companies or truck drivers for utilizing any other immediate routes to the warehouse other than 11^th Street or for idling their engines, he drew the line at imposing restrictions on the facility’s hours of operation.
“What are your proposed hours of operation?” Schwary asked.
“We intend to follow the required hours of operation during construction and once complete, you know, and operational, we need to maintain the ability to have 24/7 operations,” Spinrad replied.
“The problem I have with that is that we can’t have trucks coming in at two or three in the morning, with lifts going on and off, and I don’t care what the decibels are, there’s got to be some kind of deterrent to [protect] the residents of the area,” Schwary said. “Are you telling me that if you don’t get a 24/7 applicant instruction, a 24/7 window, that’s a deal-breaker for you?”
“Yeah,” Spinrad said. “I think the city through code enforcement has the ability to address any noise issues, and I don’t think there will be any. So, that’s important to us.”
“So, if you were living in one of those houses, and a truck came down that street at 2 a.m., regardless of whether it was within the noise levels or not, you wouldn’t be upset?” Schwary asked. “You wouldn’t be frustrated?”
“If it was within the noise level, I don’t think I would,” Spinrad responded. “I think I’d be asleep.”
“Okay,” Schwary said.
Commissioner Serge Mayer took up the issue of nighttime operations.
“When we look at the total number of trip generations in the summary, you’re able to say specifically that you’re only going to have one truck at the a.m. peak hour, and you’re only going to have three trucks at the p.m. peak hours, and you’ve got a total of 34 for the day,” Mayer said. “So that’s going to be 29 more trucks coming during the day. If we approve this as it its, you could have 29 trucks coming at midnight and be fully operating within the basis of what we’re approving here, and I don’t feel good about that. Are you at least able to give us something like, you know, 20 percent or ten percent of these may be in the evening, but no more than that?”
“I think we’ve made a pretty good faith effort on all of these conditions, and hours of operations is not something we are really prepared to limit,” Spinrad said. “It’s too limiting.”
Schwary jumped in once more. “With all respect to you guys, you don’t even know who your tenant is yet, so you don’t know, like Commissioner Mayer pointed out, they could be coming, the majority of them, between ten and twelve at night or ten and 2 in the morning, and whether it be one truck or two, you have no way of knowing, unless you already know who the tenant is. But if you don’t know who the tenant is, you have no way of being able to address that. We have a responsibility to look at that. I am of the opinion that because of the residential proximity, we have to have hours of operations limited.”
Asked by Chairwoman Aspinall if Yellow Iron Development would “walk away” from the project if it were subjected to a limitation of the tenant’s hours of operation, Spinrad said, “I think that what we did is a conservative study, based on the square footage of the building and the anticipated use, and I don’t think it is uncommon to build a building without knowing who the tenant is. I don’t know who the tenant is, but I really want to push against limiting who that tenant could be based on cutting operational hours. We have a limit on our trips already. So, 34 truck trips – 17 in and 17 out – so, we’re not talking about a big impact. Typically, these types of tenants, they don’t want to be travelling during the peak hours, and so they will want to avoid the peak hours.”
Aspinall sought to forge some order of compromise. “If we were limiting this as a condition to, let’s say, I think Commissioner Mayer threw out 20 percent, between the hours of 10 p.m. and 7 a.m., you find that unreasonable?” she asked.
“I just find it unnecessary,” Spinrad responded. “I think there’s already a mechanism to address this.”
“Okay,’ said Aspinall.
Statements from the public were then heard. Thirteen individuals expressed objections to or opposition to the project. Five construction union members expressed support for the project.
One resident of the Harvest neighborhood whose name phonetically approximated Kevin Salvacoeur, asked the commission, “Would you want this warehouse across the street from your home?”
Harvest resident Vivian Rusk said “I’m very concerned about… the increase in the truck traffic, truck usage, the times of the truck usage, the congestion, the noise, the air pollution, and now the applicant wants the trucks to come in 24/7. I’m concerned about us as a community and how it will affect our quality of life. I’m concerned about our children when school starts again, and the trucks going by.”
The union members said that Yellow Iron was a “responsible” company, and that the project would provide local jobs for construction workers, give apprentices on the job training, and would boost the economy. They encouraged the commission to approve the project.
Harvest resident Bob Wagner, said, “Based on what I have heard so so far from tonight’s meeting, I am totally opposed to this project, and I cannot believe that the City of Upland would grant residential permits to build 220 or 300 homes and then later permit something like this right next door.”
Lois Sicking Dieter suggested to the commission that using a mitigated negative declaration rather than an environmental impact report for the project was improper.
Timothy Cotran, a homeowner at the Harvest subdivision, said, “I believe that when these residential communities were approved and built, the minute those were approved, the zoning of the surrounding area should have been reconsidered to prevent developers from coming in and building incompatible structures alongside the residential. We’re fitting a square peg into a round hole over here. It’s just not the right spot for this project.”
Christina Cotran said, “Children will use this street – 11^th Street – to walk to Cabrillo Elementary [School], which is less than a mile away, To have trucks 24/7, really with no regulation, up and down this street is a safety hazard that hasn’t been discussed. It would be ideal to consider moving this development to an area where there are not residents so close in proximity that they suffer the consequences.”
Harvest resident Karina Jane Scribner said, “I was under the impression that we were developing this area to make this area to be residential and we are moving toward an industrial setting. This is where we live. Our quality of life will be greatly affected. I think this is just not the right location for a warehouse.”
After the proponent and resident input was concluded, a discussion between the commissioners took place.
Commissioner Mayer indicated he would be able to approve the project only if it were subject to conditions the applicant was at this time not willing to accept. “I would be more favorable to a condition that would limit the amount of trucks during the evening,” Mayer said. “I understand there are emergencies that happen, maybe a couple here or there. But I want to be assured it’s not a complete night operation.”
Commissioner Caldwell said, “I have serious concerns with this project. I believe it is not compatible with the existing housing and the future housing.” She said the “intensification” of the industrial/warehouse operations in the area with the development of new housing “is unacceptable.”
Chairwoman Aspinall made a motion to approve the project as it was submitted in the resolution presented in the agenda for the meeting. No second of the motion ensued, and the motion died.
A motion by Commissioner Anderson was made and seconded by Commissioner Grahn to approve the project as proposed with conditions of approval, including a wrought iron fence and enhanced landscaping around the facility, no idling of the trucks at the facility and no more than 20 percent of the truck traffic coming into or going out of the warehouse in the hours between 11 p.m to 5 a.m. That motion failed, with Anderson and Grahn in favor and commissioners Aspinall, Schwary, Caldwell, Shim and Mayer in opposition.
Schwary then made a motion to deny approval to the development plan for the project. It was seconded by Anderson, with Commissioner Caldwell adding a declaration that “The proposed design will be materially detrimental to the public health, safety or welfare or be injurious to the property improvements in the vicinity of the proposed project.” She further referenced “traffic, a dangerous situation  with conflicts between pedestrians and trucks, the noise, hours of operation.”
The commission voted 6-to-1, with Grahn dissenting, to deny the project approval.
-Mark Gutglueck

Moving swiftly to fill the gap amongst them as a result of Joe Baca, Jr.’s election as Fifth District supervisor on November 3, Rialto City Councilors this week appointed Karla Perez to the city council position Baca vacated to move up the political totem pole.
Instead of seeking applicants or holding a special election that would cost the city as much as $700,000, the council opted to make a selection from those who have evinced an interest in leading the city.
Mayor Deborah Robertson suggested and nominated Stacy Augustine, who was the first runner-up in this year’s election behind re-elected council incumbents Rafael Trujillo and Andy Carrizales. Ultimately, however, the council came to a consensus on Perez, who in 2018 was the third place finisher behind Baca and Councilman Ed Scott.
-Mark Gutglueck

Trees in the Angeles National Forest and the San Bernardino National Forest within San Bernardino County are still at risk from the goldspotted oak borer.
The insect, known scientifically as agrilus auroguttatus, is an invasive beetle native to southeastern Arizona that can kill oaks native to California.
The goldspotted oak borer produces D-shaped exit holes on infested trees.
The first discovery of goldspotted oak borer in San Bernardino County was in the Oak Glen area in the fall of 2018. In October 2018, it was detected in recently-killed California black oak trees, quercus kelloggii, in the unincorporated San Bernardino County community of Wrightwood, very close to the border with Los Angeles County. There was a subsequent infestation found in the Sugarloaf area of Big Bear in the summer of 2019, followed by one in the nearby environs of Moonridge. It is believed that the spread of the goldspotted oak borer to this area resulted from borer-infested oak firewood being brought into the forest.
Officials are urging the public to take critical precautions to avoid transporting infested oak firewood to other uninfested areas.

Barely four years after she was first elected, Blanca Gomez finds herself the dean of the Victorville City Council.
And after years of the Republicans being on top in the High Desert’s largest city, the Democrats are in ascendancy there, in no small measure because of the inroad Gomez made in 2016, and which other members of the party built upon in 2018 and in this year’s election.
Nevertheless, Gomez yet finds herself an outcast from the political feast, a byproduct of her self-styled iconoclasm. Moreover, there is evidence that her political rivals vectored all of their force this week to disenfranchise her from her allies and potential allies on the council.
For decades – more than a generation-and-a-half beginning with its 1962 incorporation – Victorville was either the most stable city in San Bernardino County or among the most stable. The city was initially led by Joseph Campbell, the scion of one of Victorville’s premier families, in the 1960s and early 1970s. Upon Campbell being appointed to a judgeship by then-Governor Ronald Reagan in 1972, Terry Caldwell, an attorney who was something of Campbell’s protégé, was moved onto the city council from the planning commission. After an interim of acclimating himself to the role, Caldwell became the political leader of the city, working in tandem with the city’s administrative leader, Jim Cox, who as a young man in 1969 had taken on the post of city manager. Throughout the 1970s, 1980s, 1990s and into the first decade of the Third Millennium, Caldwell and Cox through their sophistication and Republican Party connections, kept Victorville at the forefront among the Victor Valley’s municipalities, outmaneuvering Hesperia to annex prime commercial and sales tax-producing property fronting along the 215 Freeway corridor, Highway 395 and Bear Valley Road. Caldwell and Cox then bested the Democratic Party-affiliated political leadership of Adelanto in capturing annexation rights to George Air Force Base after it was shuttered in 1992.
When Caldwell retired from the city council in 2010, he did so as one of the longest serving continuously elected officials in California at that time. The councils he led were cohesive ones that had little turnover among their memberships, and he maintained that easy camaraderie among its members by the formation of political alliances that kept those members in office for term after term. He also pursued a policy of rotating the mayoralty among council members on a constant basis, satisfying the egos and personal ambition of all involved.
The first fissure in Victorville’s solid Republican political edifice manifested in 2008 when Robert Hunter, a member of Caldwell’s coalition, was challenged by another Republican, Ryan McEachron. Funded by major Republican Party contributor William F. “Buck” Johns, the forces supporting Hunter engaged in a vicious attack upon McEachron in an effort to prevent his election. Ultimately, however, the highly negative campaign against McEachron failed, and he ousted Hunter. Thereafter, even though Johns came to accept McEachron into the Victorville Republican Party establishment, the conviviality among Republicans on the city council began to wane. The 2010 election of Angela Valles, a Republican who developed an enmity toward McEachron and Rudy Cabralles, another member of the Republican establishment who was a longtime member of the city council, led to a further degradation of the political atmosphere in Victorville, and served as an object demonstration to the Democrats that Republicans there were not invulnerable. In 2012, Cox, who had retired as city manager in 1999 and then came back to serve as city manager for two years in 2008 to 2010, ran successfully for the council, and was immediately elevated into the mayoral position, from which he attempted, sometimes successfully and sometimes not, to restore civility to the city’s governance.
In 2016, Gomez was elected to the council, ousting McEachron in doing so. A Democrat among Republicans and unfamiliar with parliamentary protocol and less than deferential to the political hierarchy, Gomez immediately clashed with her council colleagues as well as senior staff, developing a prickly relationship with virtually everyone at City Hall in a way that made Valles, who had left the council in 2014, seem as if she had been Miss Congeniality. Gomez found herself sharply at odds with Councilman Eric Negrete and Gloria Garcia, who had succeeded Cox as mayor in 2014. On occasions, the contretemps between Garcia and Gomez had grown so acute that Gomez was removed from the council meetings. Gomez had run-ins with Councilman Jim Kennedy as well, and on occasion tested the patience of Cox, whose lifelong approach to governance was a study in civility and propriety. When Kennedy was succeeded by Councilwoman Debra Jones, Gomez had a series of dust-ups with her.
Along with Jones in 2018, Rita Ramirez, a Democrat, was elected to the council, displacing Negrete, a sign that the Republican grip on Victorville was slipping. Despite another member of her party joining the council, Gomez made little headway in being able to influence her colleagues, and virtually every cause she championed during her first two years and then her second two years on the council was met with stony silence. Rarely did her motions receive a second, and virtually never did her suggestions of action receive majority support. From 2014 until this year, Garcia maintained possession of the mayor’s gavel, and there was never any serious discussion of rotating Gomez into the ceremonial chairwomanship of the council.
In this year’s election, Cox opted out of seeking reelection. Both Gomez and Garcia vied in the race, which featured a whopping 19 other candidates, such that 21 hopefuls were seeking three positions on the council. Among those competing in the race were the Republicans Negrete and McEachron. Despite the hostility felt toward Gomez by the Victorville political and governmental establishment, she was returned to the council in convincing fashion, finishing second and well ahead of the third place finisher, Leslie Irving, while Garcia, a Republican, lost, as did Negrete and McEachron. Taking first place was Elizabeth Becerra. In this way, Gomez, first elected in 2016, is now the longest-serving member on the council, having been there for two more years than Jones and Ramirez. Of note is that the council, which is now composed of Leslie Irving, Debra Jones, Liz Becerra, Rita Ramirez and Gomez, is entirely composed of women. Furthermore, it now, for the first time in two generations, consists of a majority of Democrats.
In a development that was nothing short of extraordinary, however, and contrary to the tradition in Victorville going back to the beginning of the Caldwell era, no effort at all was made to rotate Gomez into the mayoral slot. When the newly composed council met on Tuesday, not as is the case traditionally in the council chamber at City Hall but by means of an electronic hook-up as a precaution in the face of the worsening coronavirus pandemic, Gomez was locked out of the meeting and could not participate. Thus, when the council took on the task of appointing council officers, including mayor and mayor pro tem, Gomez did not take part in the nomination process nor in the vote. The upshot was that Jones was selected as mayor and Ramirez was designated as mayor pro tem.
One report had it that city staff, which was responsible for the arrangements for the electronic forum for the council meeting, purposefully prevented Gomez from connecting from her remote location to the software program that conducted the meeting.
When the Sentinel contacted Gomez after the meeting by phone, she steadfastly refused to discuss what had occurred, did not explain why she did not participate in the meeting, nor would she confirm that city staff had blocked her from participating. She instead referred all questions to Bobby Borisov, whom she referred to as her attorney. Borisov, however, is not a member of the California Bar, and does not appear to be a practicing attorney. Phone calls to Borisov went unanswered.
-Mark Gutglueck

By clicking on the blue portal below, you can download a PDF of the December 4 edition of the San Bernardino County Sentinel.

Sentinel 12-04-20

By Mark Gutglueck
Less than a month after more than two-thirds of San Bernardino County’s voters passed Measure K, which calls for those elected as county supervisors going forward to be limited to one four-year term in office and have their total salaries and benefits limited to $60,000 per year, the board of supervisors this week took legal action to prevent the measure’s provisions from going into effect.
In taking the extremely rare legal action of challenging voter-approved legislation, county officials insisted that preserving the current pay of the members of the board of supervisors – whose total annual compensation ranges from $242,941.27 to $280,905.92 – is a matter of maintaining good governance.
In undertaking the suit, the board of supervisors filed suit not against the Red Brennan Group, which sponsored Measure K, but rather, somewhat surprisingly, against their own immediate employee, Lynna Monell, the clerk of the board of supervisors of San Bernardino County. The legal action, nonetheless, was ultimately aimed at the Red Brennan Group, as included in the suit are does 1 through 100, inclusive, among whom the Sentinel is informed, will be any and all members of the Red Brennan Group to eventually be identified by the county. The county is, the Sentinel was told, currently compiling a list of the Red Brennan Group’s membership. The intent is to seek a substantial monetary award from the Red Brennan Group and each of its members, both as a punishment for having pursued the passage of Measure K, and as an intimidation tactic the supervisors hope will convince a substantial number of the group’s members to depart, such that the movement the Red Brennan Group represents will be divided and thus overcome.
The board of supervisors is represented in its legal action by the Los Angeles-based Sutton Law Firm and three of its attorneys, Bradley Hertz, James Sutton and Nicholas Sanders.
In its petition filed on December 2, the board of supervisors requested that “this court award petitioner the costs of this proceeding; and that this court grant petitioner such other, different, or further relief as the court may deem just and proper.”
The Red Brennan Group asserted that the county’s move is a cynical ploy to simply keep the pay level for the county’s ruling elite intact.
In the petition, Hertz, Sutton and Sanders maintain on the board of supervisors’ behalf that only the board of supervisors can determine its members’ pay; that the supervisors have a constitutional right to serve as many terms as they personally wish as long as they can maintain the support of the voters in doing so; that the Red Brennan Group, as Measure K’s proponents, packed too many provisions into the measure; and that Measure K interferes with the operation of county government.
According to the board’s writ of mandate petition, “Measure K suffers from the following fatal flaws, which make it unconstitutional, legally invalid, and/or otherwise unenforceable: (a) Measure K violates Article XI, Section 1(b) of the California Constitution, which requires that county boards of supervisors, and not the voters via the initiative process, shall prescribe supervisors’ compensation; (b) Measure K violates the First and Fourteenth Amendments to the United States Constitution by purporting to enact a single lifetime term limit provision for members of the county board of supervisors; (c) Measure K violates the initiative power of the electorate by intruding on matters that are exclusively delegated to the local governing body; (d) Measure K violates Article II, Section 8(d) of the California Constitution by embracing more than a single subject; (e) Measure K violates Article XI, Section 4(d) of the California Constitution, and California Government Code Sections 25000, et. seq, by impairing essential government functions; (f) Measure K violates California Government Code Section 36502(b)’s prohibition on retroactive term limits; (g) Measure K violates California Government Code Section 1235’s prohibition on the adjustment of sitting officials’ salaries; and/or (h) Measure K violates the law because its term limit provision is not severable from its compensation provision.”
According to the petition for the writ of mandate, “Accordingly, and as alleged herein, petitioner/plaintiff Board of Supervisors of the County of San Bernardino seeks judicial relief by way of: (1) a writ of mandate compelling respondents and defendants not to take any actions that would cause the implementation of Measure K’s provisions; (2) injunctive relief preventing respondents and defendants from taking any actions that would cause the implementation of Measure K’s provisions; (3) a judicial declaration that Measure K is invalid and unenforceable; (4) a judicial declaration that if Measure K is valid and enforceable, its provisions do not take effect until 2022 at the earliest; and (5) such other and further relief as the court deems just and proper.”
Noting that “For Fiscal Year 2019-2020, the county has an adopted modified
budget of $7.238 billion” and that “For Fiscal Year 2020-2021, the county has a recommended budget of $6.997 billion,” the petition states, “Given the size and complexity of San Bernardino County, the office of supervisor is recognized as a position that requires a considerable investment of time and due diligence from board members in order to effectively fulfill their duties in service to the public. These duties include but are not limited to: ensuring fiscal responsibility; representing the interest of the public during public meetings and hearings of the board of supervisors and other public committees; participating in the response to natural disasters and other emergencies; conducting meetings with members of the public; ensuring that the county is effectively represented with respect to federal, state, and other local government agencies; and reviewing issues impacting the county and its residents, businesses, developed and natural environment, and health and safety. The position of supervisor requires supervisors to be responsive to the needs of the public on a 24 hours a day, seven days a week basis.”
In addition, according to Hertz, Sutton and Sanders, the board of supervisors has duties beyond serving in each member’s supervisorial role, including as voting and participatory members of multiple regional and local governmental adjunct committees, commissions and boards, including the Agua Mansa Industrial Growth Association, the Arrowhead Regional Medical Center Joint Conference Committee, the Behavioral Health Commission, the Big Bear Area Regional Wastewater Agency, the Big Bear Valley Recreation and Park District, the Bloomington Recreation and Park District, the board of supervisors-governed county service areas, the CAL-ID Remote Access Network Board, the California State Association of Counties, the First 5 Children and Families Commission, the Children’s Policy Council, the Crafton Hills Open Space Conservancy, the Head Start Shared Governance Board, the High Desert Corridor Joint Powers Authority, the Indian Gaming Local Benefit Committee, the Indian Wells Valley Groundwater Authority, the In-Home Supportive Services Public Authority, the Inland Counties Emergency Medical Agency, the Inland Empire Economic Partnership, the Inland Empire Health Plan, the Inland Empire Public Facilities Corporation, the Inland Valley Development Agency, the Interagency Council on Homelessness, the Mojave Desert Air Quality Management District, the Mojave Desert and Mountain Recycling Authority, the Morongo Basin Transit Authority, the Mountain Area Regional Transit Authority, the National Association of Counties, the Ontario International Airport Authority, the Omnitrans Board of Directors, the Quad State Local Governments Authority, the San Bernardino County Employees’ Retirement Association Board of Retirement, the San Bernardino County Financing Authority, the San Bernardino County Fire Protection District, the San Bernardino County Flood Control District, the San Bernardino County Industrial Development Authority, the San Bernardino County Law Library Board of Trustees, the San Bernardino County Local Agency Formation Commission, the San Bernardino County Transportation Authority, the San Bernardino International Airport Authority, the San Bernardino Municipal Water District Advisory Committee on Water Policy, the Santa Ana River Parkway Policy Advisory Group, the Santa Ana Watershed Project Authority, the Solid Waste Advisory Taskforce, the South Coast Air Quality Management District, Southern California Associated Governments, the Southern California Water Coalition, the Successor Agency to the San Bernardino County Redevelopment Agency, the Upper Santa Ana River Washland Management and Habitat Conservation Plan Taskforce, the Urban Counties Caucus, the Victor Valley Economic Development Authority, the Victor Valley Transit Authority and the Victor Valley Wastewater Reclamation Authority.
Citing the 1976 case of Meldrim v. Board of Supervisors of Contra Costa County and the 1999 case of Jahr v. Casebeer, Hertz, Sutton and Sanders asserted, “Courts have recognized that [California Constitution] Article XI, Section 1 (b) provides that only county boards of supervisors have the right to set supervisor salaries, and that such salaries may not be set by citizen initiative. Section 4(b) affirms Section l(b)’s limited grant of power, and both of these sections were amended in the State Constitution in 1970 via Proposition 12, entitled ‘Compensation of County Supervisors.’ Proposition 12 removed the power to set county supervisors’ salaries from the California State Legislature and vested such power in the boards of supervisors. Section 4(b) provides that if a county charter includes a provision that compensation is to be set by legislative action, then only the county’s governing body may do so. Section 4(b) does not modify or otherwise affect Section l(b)’s provision that supervisor compensation may be set only by the county’s legislative body. To find otherwise is plainly inconsistent with the Constitution, and is inconsistent with the general scheme of county government.”
Just because the county had allowed Measure K onto the ballot and the voters had voted by a margin of more than two-to-one to approve it does not mean that its provisions are binding, Hertz, Sutton and Sanders maintain in the petition.
“Although boards of supervisors are required to place county charter amendments on the ballot for approval or rejection by the county’s voters, such action is distinguishable from measures such as Measure K, which are placed on the ballot via the citizen initiative process, as opposed to the governing body via an ordinance,” according to the petition. “Accordingly, Measure K violates California Constitution Article XI, Section l(b) by seeking to set supervisor compensation via citizen initiative. Measure K must not be implemented because it exceeds the initiative power of the electorate by intruding on matters that are exclusively delegated to the governing body, in this case the San Bernardino County Board of Supervisors.”
In a letter sent this morning, December 4, to Aaron Burden, a lawyer for the Red Brennan Group, Hertz said, “The petition/complaint is being brought pursuant to California Code of Civil Procedure Sections 1085, 525 and 1060, et seq., on the grounds that Measure K is unconstitutional, legally invalid, and otherwise unenforceable, and that Ms. Monell, among others, must not take any actions that would cause the implementation of Measure K. We intend to demonstrate to the court, via our ex parte papers, and when the matter is fully briefed and heard on its merits, that Measure K is invalid and unenforceable, that imminent and irreparable harm will occur if Measure K is implemented, and that therefore good cause exists to warrant the granting of immediate interim relief, and ultimately, preliminary and permanent relief, preventing the implementation of Measure K.”
On its face, there were several apparent problems and inconsistencies with the petition for a writ of mandate and the position the board of supervisors is taking in pursuing it.
The board of supervisors’ foremost difficulty is that, according to the final certified November 3 election results released this week by the San Bernardino County Registrar of Voters Office, Measure K passed with 516,184 or 66.84 percent of the 772,282 voters participating supporting it, and 256,098 voters or 33.16 percent opposed.
Secondly, the Red Brennan Group on March 20, 2020 presented to Registrar of Voters Bob Page petitions endorsed by the signatures of 75,132 county voters which requested what would later be designated as Measure K on the ballot. Page on May 1, 2020 certified the signatures on the Measure K initiative petitions as sufficient. On May 19, 2020, Page presented his certificate of sufficiency to the board of supervisors. The board of supervisors then delayed until June 23, 2020 voting to place Measure K on the November 3, 2020 Presidential General Election ballot, purposefully temporizing while personnel from the county chief executive’s office, the county chief operating officer’s staff and the county’s in-house stable of attorneys, known as the office of county counsel, researched to determine if there were operational, procedural or legal grounds to justify keeping Measure K off the ballot. County staff was unable to cite adequate grounds for keeping the measure off the ballot.
Thirdly, while the board of supervisors in its petition for a writ of mandate is maintaining that the county’s voters do not have the authority to set the board of supervisors’ pay rate, on three separate occasions, including as recently as this year, the board of supervisors has placed measures before the voters to have them set the supervisors’ pay. In 2006, the board of supervisors, led by then-Second District Supervisor Paul Biane, championed what was ultimately designated as Measure P, which called for raising the supervisors’ individual salaries before benefits from $99,000 per year to $151,000 per year, while imposing on the supervisors a three-term limit going forward. Measure P passed, and the board of supervisors at no time, including up to the present, sought to block Measure P’s implementation.
In 2012, government reform activist Kiernan “Red” Brennan, for whom the Red Brennan Group is named, succeeded in gathering sufficient signatures to place what was ultimately designated as Measure R on that year’s November ballot, an initiative that was identical to Measure K in its remuneration limitation aspect with regard to the supervisors’ pay level, reducing what was then each supervisor’s total annual $219,471 compensation, which at that time consisted of $151,971 yearly salaries and $67,500 in benefits, to $60,000, composed of $50,000 in salary and $10,000 in benefits annually. In reaction to Measure R, the members of the board of supervisors, alarmed at the prospect that they would be subject to seeing their pay reduced by more than two-thirds but simultaneously recognizing that the public’s appetite for reform was intense, used their authority as government officials to place an alternative measure on that year’s ballot, what was ultimately designated as Measure Q. Measure Q called for leaving the supervisors’ then-$151,971 yearly salaries in place, while reducing their annual benefits from $67,500 to $63,500, thus dropping their total annual compensation to $214,471.
Both Measure Q and Measure R passed, Measure R by a convincing 64.25 percent to 35.75 percent, with 326,939 voters in favor of it and 181,907 opposed. Measure Q achieved passage by a 67.28 percent to 32.72 percent margin, 344,226 votes in support to 157,369 against it. Because Measure Q garnered more votes than Measure R, the former went into effect rather than the latter. Instead of the supervisors seeing their $219,471 per year total compensation packages reduced to $60,000, they were instead cut back to $214,202. The board of supervisors at no point, including up to the present time, objected to or sought to interfere with the provisions of Measure Q.
This year, after the Red Brennan Group succeeded in qualifying what was subsequently designated as Measure K for the November 3 ballot, the board of supervisors sought to replicate the success it had in 2012 by again putting onto the ballot a substitute measure that dealt with the issue of the supervisors’ pay grade. At its July 14, 2020 meeting, the board of supervisors voted to place on the November 3 ballot what its members referred to as a charter reform measure, one which was ultimately designated as Measure J. Though there had been scant discussion of charter changes previously and no expression of a public consensus on what elements of the charter should be redressed, the office of county counsel virtually overnight delivered the language for the charter reform initiative, which included what board members claimed was the important reform of modernizing the charter’s language to eliminate what is now considered outdated and genderist references, such as the charter’s reference to the board’s designated leader as “chairman” and what “his” duties consist of. Further, since the current charter did not directly address the compensation the supervisors receive, their level of pay was deemed an important issue for the redraft. Without any previous discussion of an appropriate remuneration level, the office of county counsel, working from the premise that the supervisors’ current average annual salary of $163,000, further/add-on pay of roughly $17,000 and benefits of $77,000 for a total annual compensation of $257,000 is what the supervisors deserve, hit upon setting the supervisors’ salaries at 80 percent of the salary of a Superior Court judge and giving them benefits equal to county department heads. Thus, Measure J called for setting the supervisors total annual compensation at somewhere in the range of $257,000 to $287,000, depending upon the amount of further/add-on pay or familial health coverage benefits they are provided with. Measure J also spelled out that the three-term limitation imposed on the supervisors by Measure P meant that a supervisor could not serve as supervisor for three years in one district and then move to another district where he or she would be eligible to serve three more terms representing that district. In this way, Measure J reduced the total number of terms an individual might conceivably serve on the board from a maximum of 15 to three.
According to the final certified election results released by the San Bernardino County Registrar of Voters, Measure J passed, with 378,964 votes or 50.72 percent of the 747,188 votes cast supporting it and 368,224 or 49.28 percent opposed. In 2012, Measure Q, which had been placed on the ballot by the supervisors to thwart the drastic reduction in their salaries embodied in Red Brennan’s Measure R, received the greater number of votes and thus went into effect. This year, Measure J, which would have kept the supervisors’ generous salaries intact, received fewer votes than Measure K. Thus, according to the practice of resolving a conflict between the provisions of two measures simultaneously adopted by the voters by implementing the provisions of the winning measure that gets the most votes and disregarding the conflicting provisions of a winning measure that gets fewer votes, the board of supervisors is to see its members’ total annual compensation reduced to $60,000 going forward. In placing measures before the county’s voters, the board of supervisors has not hesitated in giving those voters an opportunity to set the pay grade for themselves in their capacity as county supervisors.
Fourthly, the contention by Hertz, Sutton and Sanders that Measure K violates the single subject limitation on measures runs head-on into the consideration that the county has on numerous occasions, as with 2006’s Measure P and this year’s Measure J, placed measures on the ballot that were in violation of the single subject limitation for measures. Measure P had multiple provisions, including raising the supervisors’ pay level and subjecting the supervisors to a limitation on the number of terms they can serve. The board of supervisors at no point, up to the present, contested the applicability or implementation of Measure P because it violated the single subject limitation.
Fifthly, Hertz, Sutton and Sanders maintain in their petition for a writ of mandate that Measure K violates the First and Fourteenth Amendments to the United States Constitution by putting into place a lifetime term limit provision for members of the county board of supervisors, even though both Measure P, placed on the ballot by the board of supervisors in 2006 and passed by the voters, and Measure J, placed on the ballot by the board of supervisors this year and passed by the voters, impose a lifetime term limit provision on the board of supervisors.
In these ways, to some it seemed that the filing of the petition for a writ of mandate was aimed less at the somewhat unrealistic goal of preventing Measure K from ever going into effect than it was being used to ensure that the provisions do not take immediate effect. There is law and precedent to establish that a measure that is applicable to elected officials only pertains to office holders elected after such a measure is passed. For example, the current dean of the board of supervisors is Josie Gonzales, who was first elected to the board in 2004. In 2006 Measure P, limiting supervisors to three terms in office, was passed by the county’s voters. Yet, Gonzales, at the conclusion of her first term, successfully ran for reelection in 2008, ran again in 2012 and ran once more in 2016. Gonzales’s tenure in office has now run to four terms. Her first term on the board, from 2004 to 2008, was not subject to Measure P, while from 2006 onward, she was subject to Measure P. In this way, the terms she was elected to in 2008, 2012 and 2016 represent the three terms she was entitled to hold, pursuant to voter approval, under Measure P.
By way of further illustration, Second District Supervisor Janice Rutherford, who was first elected in 2010 and reelected in 2014 and 2018, will be termed out in 2022 under the term limitation provision of Measure P. Since she was reelected in 2018 under the terms of Measure P, she is entitled, by most interpretations, to finish her current term and to receive the remuneration that was in place at the time she was reelected in 2018, meaning she is eligible, until leaving office, to receive her current total annual compensation of $265,738.17, which includes $166,150.75 in salary, $17,000.10 in other pay add-ons and benefits of $82,587.32. One interpretation of the term limitation provision of Measure K, however, is that Measure P has now been superseded, and Rutherford is no longer bound by Measure P. So, by one interpretation, Measure K has yet to apply to her, making her eligible to seek reelection in 2022 once more, though if she is successful she would have to take a cut from her current $265,738.17 in total annual compensation to $60,000.
Curt Hagman, who was first elected in 2014, reelected in 2018 and is currently receiving $254,373.11 in annual total compensation, including $160,746.94 in salary, $17,000.10 in add-on pay and $76,626.07 in benefits, is entitled, under the provisions of Measure P, to continue to receive $254,373.11 in annual total compensation for the remainder of this year, for 2021 and for most of 2022 until the current term to which he was elected in 2018 comes to an end in December of that year. Under Measure P and Measure K, Hagman can seek reelection in 2022. Under Measure K, if Hagman in fact runs for reelection in 2022 and is successful, upon his term commencing that December, he will have to take a salary cut to $50,000 annually and a benefit reduction to $10,000. Under both Measure P and Measure K, he will be termed out in 2026.
Dawn Rowe, who has been on the board of supervisors in an appointed capacity since 2018, along with Congressman Paul Cook and Rialto City Councilman Joe Baca, were all elected this year under the terms of Measure P, meaning each is entitled to a total annual compensation of around $240,000, consisting of a salary of $160,000, add-on pay of $15,000 to $20,000 and benefits ranging from $60,000 to $65,000 for the next four years. Beginning in 2024, each would then be subject to the provisions of Measure J, meaning they could seek reelection at that point but would be subject, if victorious, to seeing their salaries slashed to $50,000 annually and their benefits reduced to $19,000. If they indeed chose to run in 2024 and remained in office by being reelected, they would need to leave the board in 2028 as a consequence of the one-term limit under Measure K.
If the board of supervisors proves successful in its suit against its own clerk of the board, none of the Measure K limitations will apply.
“Measure K has been approved by more than two-thirds of San Bernardino County voters,” Red Brennan Group spokeswoman Natalie Zuk told the Sentinel. “Regardless, the San Bernardino County Supervisors, in an act of naked self-interest, are suing to keep the successful measure from going into effect. The measure, proposed by a local small business owner and sponsored by The Red Brennan Group, deals a blow to the concept of the ‘career politician.’ San Bernardino County voters have spoken clearly and in no uncertain terms. Citizens want to be represented by peers rather than a political elite. Local voters no longer support elected officials dedicated to protecting their own self-interests at the expense of their constituents. The incentives associated with the current model are amiss. Legislators are attracted to lucrative pay, pension benefits and perks that come with elected office. The result is the people’s representatives are at the whim of political party dynamics, special interest groups, corporations, and private individuals as they scrape to keep their hold on the power and perks of office. Measure K was designed specifically to overhaul the incentives to serve as a county supervisor. Rather than a quarter-million-dollar a year pay and benefit package, Measure K allows for a benefit package equal to the median household income in the county. The measure also provides for one four-year term to serve in office.”
Zuk continued, “This measure was placed on the ballot by 75,000 registered county voters. Measure J was placed on the ballot by five panicked supervisors desperate to protect their excessive pay and benefit packages. Touted as an effort to replace an ‘outdated’ charter containing sexist gender pronouns and dated workplace governance procedures, the measure was actually designed by county attorneys to protect supervisor compensation and consolidate power in the hands of the county bureaucracy. Measure J was barely approved, squeaking out just over 50 percent of the vote. With both of the two competing measures passing, Article II Section 10 of the California Constitution states, ‘If provisions of two or more measures approved at the same election conflict, the provisions of the measure receiving the highest number of affirmative votes shall prevail.’ Because Measure K has received significantly more votes than Measure J, and the two measures conflict, Measure K will be implemented while none of the provisions in Measure J will stand. In previous rulings, the Supreme Court of California stated, ‘If the measures propose alternative regulatory schemes, a fundamental conflict exists. In those circumstances, section 10(b) does not require or permit either the court or the agency charged with the responsibility of implementing the measure or measures to enforce any of the provisions of the measure which received the lesser affirmative vote.’”
Zuk said, “County Supervisors are blatantly attempting to subvert the expressed will of the people with respect to Measure K. Three days following the certification of the county election, the board of supervisors filed an injunction in an arrogant attempt to stop the implementation of Measure K. As of Friday, December 4, 2020, the board of supervisors had made no formal mention of the lawsuit on their website. This despite the fact that attorneys from The Sutton Law Firm, funded with taxpayers’ resources doled out by the board of supervisors, will be in court on Monday, December 7, seeking a temporary restraining order against the clerk of the board which would halt the implementation of Measure K. The lawsuit comes just days after the announcement of a payout in which the county granted $65 million in taxpayer money to multimillionaire Jeffrey Burum and the Colonies Partners. This is an example of the horrendous performance supervisors provided managing the county’s finances. In fact a butcher’s bill created by a runaway county budget meshed with cavalier management of the county pension fund has bankrupted the county. Rather than forcing the bureaucracy to live within its means, which is supposed to be job number one for elected representatives, the county’s elected officials have worked hand-in-glove with senior bureaucrats to fleece the county’s working-class residents. This sustained track record of abysmal performance is the reason Measure K was placed on the ballot. Elected supervisors should be partnering with the electorate to ensure the measure is implemented as approved by voters. Instead, San Benardino County’s elected officials continue a long history of partnering with public unions, developers, and political parties against the people’s interest.”