Summary:

Our client, who was involved in litigation for an estate, received a low-ball offer from a private equity firm he was suing on behalf of the estate. The offer was based on what our client believed was a false representation of the amount of the sale of a particular company. We were able to research the sale and provide the actual amount paid for the company, which was much higher than that alleged by the private equity firm. Our client turned down the offer and later prevailed in the litigation, receiving a much larger monetary award than what was offered. was an uproar by residents in a local city when approximately 100 trees were cut without any public notice. We were hired by the city council to investigate why this large tree removal on vacant land happened without public notice and without complying with the Department of Toxic Substance Control's requirements for such work on contaminated property.

The Story:

For a local city, we were retained to investigate the removal of trees from contaminated vacant land. Our charge was "to find out the truth, whatever it may be, in connection with the events which led to the large tree removals" and "to establish accountability."

 

For this investigation, we interviewed forty-one people, including members of the city's staff or former staff, the City Council, City Commissioner, various attorneys, employees of a tree removal company, a scientist from the Department of Toxic Substance Control (DTSC), residents, as well as partners and an employee of the company that owned the land, the arborist and employees of the tree removal company the landowner hired. In addition to the interviews, we reviewed documents including transcribed voicemails, emails and schedules of particular individuals. We also requested records on this property from the DTSC.

 

We tried, as indicated by the large number of witnesses we spoke to, to get as many versions of the events as possible from different individuals involved. In some crucial areas, we had to evaluate the credibility of witnesses since what one may have told us differed from information we received either from other witnesses or from the written documentation we reviewed.

 

We prepared a lengthy written report and made a presentation to the city council at the conclusion of our investigation. The main question we tried to answer was: why did this happen - why were so many trees removed from this contaminated property when virtually no one in the City knew it was going to happen until the day before? And, who was responsible for it happening in the way that it did?

 

We concluded that the company that owned the land 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 to prepare for possible development and also didn't want to be liable for a tree falling and harming people or property. They had the trees removed without notice, without a permit and without the proper precautions to protect public health.

Knowing that many residents were opposed to development on the land, the company 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 hired an arborist who had never done a large project like that before and then had their attorneys review the report and ask for

"structural" changes. They did not obtain permission or guidance from the DTSC for the tree removal work nor hire a company that knew how to work on contaminated property. They never engaged in a public notification process. Despite promising to buy replacement trees the company knew that the DTSC would not permit digging and planting in many of the areas on the Lots, so this was an empty promise.

They hired the tree removal company that performs the City's tree maintenance and attempted to use that company's blanket permit rather than getting their own. They never gave written notice of when the trees would be removed to the City Manager or anyone on the City staff.

 

We also found that the City Manager and the Deputy City Manager bore some responsibility for way the large tree removal happened. The City Manager, neglected to prevail upon the company to hold off their tree removals until there was a public notification process, but instead assured other staff that they could cut their trees without any public notice because it was private property. Nor did he inform Councilmembers or get their opinion on whether or not to give public notice, or take precautions, given the contaminated soil from which the trees were to be removed. And, he did not ask his staff to contact the DTSC so that they would ensure that the company would be complying with DTSC requirements when they did the removal work on contaminated property.

 

The Deputy City Manager contacted the DTSC, but did not inform them about the planned removal of a large number of trees or inquire about the process for removing almost 100 trees but only asked about planting new trees on the property. When he was told by the DTSC project manager that planting new trees would disturb the soil, he still did not ask the DTSC whether the large tree removal that was planned would also disturb the soil.

 

It was our conclusion that the above members of the City staff were more focused on accommodating the landowner rather than on their duty to inform the Council or on their responsibilities to the City's residents. With such a large tree removal 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.

 

It also seemed particularly irresponsible that the City Manager and his staff did not do more to ensure that the work would be done in a way that would protect public health. The staff knew or should have known more about the contamination issues. At the very least, they should have consulted the environmental attorney in the City Attorney's office, who was also very familiar with those contaminated parcels. The CEO of the company that owned the land was a charming and sophisticated individual who owned other properties in the City, has many friends in the City and has a reputation as someone who cares about the City. It is understandable that some on the staff would want to please him. His argument that he was terribly worried someone would die and he would be responsible was somewhat compelling. Despite those arguments by the landowner, it was still the city staff's obligation to inform Councilmembers or notify the public and residents, whose lives and property were affected by the landowner's actions.

 

At the end of our report, we provided suggestions for actions that could be taken by the City to avoid situations like this in the future.