Posted: Monday, October 17, 2016 – 2:32 PM
By Victoria Talbot
A report on the investigation into the events surrounding the removal of trees on Lots 12 & 13 conducted by Parrent Smith Investigations is now available and will be on the agenda for Tuesday’s Beverly Hills City Council Study Session.
It is thorough, but incomplete, we feel, as there is no testimony from key people involved in the cutting, because they refused. That includes former Councilman Willie Brien. The report, which is available as an agenda item on the City’s website confirms several issues put forth by the Courier’s investigations earlier this year.
“From all the interviews we did and documents we reviewed, we believe the answer is simply that the Beverly Hills Land Company wanted to remove the trees and didn’t want the City or the nearby residents to interfere with that desire. They wanted the trees removed for two reasons: 1) they wanted the land to be flat and ready for remediation and ultimately for development and 2) they didn’t want to be liable for a tree falling and harming people or property. There is no question that the BHLC is primarily responsible for having removed trees without notice, without a permit and without the proper precautions to a protect public health. Former City Councilman Willie Brien and former Deputy City Manager David Lightner refused to be interviewed and were not subpoenaed. Lyn Konheim from the Beverly Hills Land Company agreed only to be interviewed with his lawyer present and without a stenographer or recording of the meetings.”
Brien and Konheim are both prominent members of the Hillcrest Country Club, as Brien pointed out. He chose to staunchly defend Konheim, rather than to support his fellow councilmembers and the residents of the City of Beverly Hills.
Investigators Joanne Parrent and Nic Smith concluded that City Manager Mahdi Aluzri, City Arborist Ken Pfalzgraf and Lightner made errors that led to the trees being cut down. They also
“We feel that the above members of the City staff were more focused on accommodating and pleasing Lyn Konheim than on their duty to inform the Council or on their responsibilities to the City’s residents. With such a large tree removal, particularly one done on contaminated property, the staff knew there would be an outcry from residents. Even if there was nothing the City Manager felt he could do to stop the tree removals, it was highly irresponsible not to have consulted with councilmembers about whether to notify the residents of the change that would be taking place in their neighborhood.”
Absent the testimony of key individuals David Lightner and former council member Willie Brien, and without a transcript or recording of the testimony of Lyn Konheim and Bob Barth, owners of BHLC and their representatives, including Peter Ashley, the arborist BHLC employed to recommend the trees be cut down, the report will remain inconclusive. There will always be room for doubt.
BHLC partners and associates were interviewed with attorneys Steve Madison
For example, says the report, “We don’t know if Lightner intentionally tried to keep the Council in the dark so Konheim could remove the trees without interference. Lightner would not speak to us.”
The Courier spoke with Mayor John Mirisch and Council member Lili Bosse to understand why subpoenas were not issued to invoke testimony under oath from Konheim and Lightner. They both said that this is the first chance they have had to see the report. Bosse said, that, “Given the obstacles (Lightner and Brien refusing to talk and Konheim not speaking on record), it’s a very honest, fair and balanced report. Konheim is not going to like it. They absolutely bought the property to develop it.”
“I think its problematic,” said Mirisch. “The City staff is being pushed around by prominent community members, aided and abetted by council members (Willie Brien, who introduced Konheim to key staff members, but has since taken a position out of state.)
The entire affair was conducted in a deceptive manner, says the report. “Knowing that many residents were opposed to development on the Lots and knowing that some on the City Council wish to maintain the City’s reputation as the “garden city”, they planned to remove the trees and shrubs in such a way that it appeared that they were following the rules and procedures that the City required. They obtained an arborist report and used it to justify their claim that they were only removing the trees for public safety reasons . In fact, however, they did not really cooperate with either the City or the DTSC:
- They did not obtain permission or guidance from the DTSC for the tree removal work.
- They did not hire a company with Hazwoper training that knew how to work on contaminated property.
- They obtained an arborist report from a consulting arborist who had never done a large project like that before, then had their attorneys review the report and ask for “structural” changes.
- They never made the arborist report available as part of a public notification process but only showed it to the City Arborist, who they knew would basically concur with the report since he wanted to remove Eucalyptus trees wherever they existed in the City.
- Despite promising to buy replacement trees for the City’s right of way on Civic Center Drive, the BHLC knew that the DISC would not permit digging and planting in many of the areas on the Lots, so this was an empty promise.
- They did not follow the suggestion of the City’s Director of Community Services that they participate in a public notification process and do their tree removals at the same time the City removed trees on its right of way on Lot 13.
- They hired West Coast Arborists that performs the City’s tree maintenance and attempted to use WCA’s blanket permit for the Santa Monica Boulevards closing rather than getting an encroachment permit.
- They never gave written notice of when the trees would be removed to the City Manager or anyone on the City staff.
And, as of August 24, 2016. according to Deputy Building Manager, David Yelton, their attorneys are still resisting recommendations for planting trees or shrubs to improve the aesthetic look of the Lots. This also shows they did not really want to plant more trees but only wanted the land cleared.
Lightner worked closely with Konheim. The report says, “There is no question that the new owners of the Beverly Hills Land Company, Lyn Konheim, Bob Barth and Stanley Black, purchased Lots 12 and 13 in or around July 2014 with the intention of developing the land into a condominium, commercial or mixed-use space. Before they could develop the Lots, however, the BHLC principals had to overcome two major obstacles.
“First, they needed the property, which is contaminated with arsenic, to be remediated with no restrictions as to how they could develop the land. The Union Pacific Railroad, a previous owner of the property, had already entered into a Voluntary Cleanup Agreement with the DTSC to clean up the site. But in order to begin a cleanup, the DTSC requires a Removal Action Workplan (RAW) that is based on the future use of the property. If the land is going to be a park, there is one type of cleanup. If it is going to be developed into a site with one or more buildings and underground parking, a different Level of cleanup is required.
“The second obstacle to a future development of the parcels is, of course, getting the City to re-zone the property — now zoned T-1 for transportation use — to permit commercial and/or residential development.”
The report breaks down involvement into key interested parties, all attempting to take away some benefit from the parcels.
The City interests included a) using the parcels for a construction staging area for the Santa Monica Boulevard reconstruction project (Lightner) b) to get the eucalyptus trees removed from the City’s easement at Konheim’s expense (Zoet) c) to replace those trees at Konheim’s expense (Zoet) and d) the mitigation of the contaminated soil (Aluzri).
The City, particularly Lightner, may also have been interested in getting those lots developed for unknown reasons, hence they helped the developer to navigate through City Hall, around the City Council and past the residents to get the trees cut down.
Konheim’s agenda was first and foremost the development of the property. To accomplish that, first, he had to deal with the safety issue. Union Pacific Railroad has entered a voluntary agreement to pay for the mitigation, and Konheim wants full mitigation to allow for any type of development. Remedial mitigation could be performed for a passive park; he was seeking mitigation to 15 feet. (Interestingly, Aluzri also wrote a letter to that effect.)
But the trees were in the way. And people liked the trees. Konheim had to get around that. By the time he cut down the trees, Konheim had invested quite a bit into plans for a mixed-use development on the property.
The last obstacle is still in place. He needs a zone change. Several City Council members have stated that it will not happen, but there is an election in March and three seats are up for grabs. All Konheim needs is three votes.
The City Council will be discussing the report on Tuesday at 2:30 p.m. at City Hall in the Council Chambers. The Courier encourages the community to attend the meeting and sign up for public comments.