Judge Wades Into a San Bernardino County Flood Control Dispute

A Superior Court judge on Tuesday began sorting out a legal scuffle between San Bernardino County and a politically connected developer that has triggered allegations of secret legal negotiations and leaked government memos, and prompted county supervisors to offer to take lie-detector tests.

The county and developer Colonies Partners are squabbling over who should pay for flood control improvements made to the company’s huge commercial and residential project in Upland, and the land on which they are built. The Rancho Cucamonga developer alleges that the county owes it more than $200 million.

In 1997, Colonies Partners bought several hundred acres near the Foothill Freeway in Upland to build about 1,100 homes and a retail center.

The developer sued in March 2002, contending that the county should have paid for flood control improvements and for the portion of Colonies land needed to divert runoff from the freeway and flood water from Cucamonga Creek around the project.

On Tuesday, Colonies attorney Heidi Timken said that because water from the newly constructed Foothill Freeway was being drained onto Colonies property, the company was forced to build a flood control system it would not otherwise have had to build. Colonies was forced to build it on its own, because the water could create a hazard, she said.

San Bernardino County officials argued that the county had no responsibility to pay for any land used for flood control because it already had decades-old legal easements, which grant limited property rights. The county also denies that it is responsible for the cost of building the flood control system.

A state appellate court in Riverside ruled that the easements gave the county rights to some -- but not all -- of the property that would be required to build a flood-control basin of more than 60 acres.

The court sent the case to San Bernardino County Superior Court Judge Christopher J. Warner, who will determine only how much land the county easements include -- a precursor to any monetary decision. The trial is expected to last at least two weeks.

During opening statements, Tom Malcolm, an attorney representing the county, played a tape from the deposition of Colonies’ Jeffrey Burum, in which the managing partner appeared to agree that an easement blanketed most of the Upland project.

In recent months, the dispute between the county and the developers has triggered a nasty political fight among county supervisors.

The project split the board this summer when the Riverside Press-Enterprise reported that Supervisor Paul Biane and Board Chairman Bill Postmus had negotiated with Colonies representatives without the county’s attorneys present.

They and Supervisor Gary Ovitt had accepted thousands of dollars in campaign donations from Colonies or its partners. And Biane, a former real estate agent who has long favored settling with the developer, had worked on at least one business deal with Colonies partner Dan Richards.

The county’s consultant in the matter, former state Senate Republican leader Jim Brulte, also had previously done consulting work for Colonies.

An internal county memo leaked to local news media in June detailed the $77-million settlement that Biane and Postmus had reached with the developer but that the board never approved. County lawyers criticized the proposed settlement offer as excessive.

Biane surprised his colleagues at a board meeting when he offered to take a “lie detector, polygraph, whatever it takes to get to the bottom” of who leaked the memo.

Other board members -- including Supervisor Dennis Hansberger, whom Biane blamed for the leak -- said they would as well.

In a July statement, the county district attorney’s public integrity unit called the polygraph tests a “pointless effort” that would be inadmissible in court, and said prosecutors could not determine the source of the leak.