FRAZIER PARK, CA (Monday, Dec. 13, 2010, 8:40 p.m.; UPDATES Tuesday, Dec. 14, 3:54 a.m. and 9 a.m.)— This is an annotated copy of the Kern County Grand Jury report about the destruction of the heritage oak trees at the Frazier Park Branch Library construction site. The report takes aim at Mountain Community residents and this newspaper, rather than at Kern County administrative errors and faulty oversight of a construction company that did not comply with its contract. For this reason, we have included our notes and questions in red italic, along with the report, which is in black.

THE KERN COUNTY GRAND JURY’S REPORT ON
THE NEW FRAZIER PARK LIBRARY HERITAGE OAK TREES

GRAND JURY SUMMARY:
Two heritage oak trees were cut down at the construction site of the new Frazier Park Library in June 2010. (Heritage, in this case, refers to a distinctive community landmark that is passed down from preceding generations). This happened after many months of negotiating to keep the trees, redesigning the library plot to accommodate them, and without any prior notice to the community of their removal. Articles in the local newspaper questioned the county’s authority to remove the trees and implied the lack of consideration of the citizens’ wishes on the part of the county.

Notes from The Mountain Enterprise Newspaper:
[First, the library has been in development for over 10 years. From the beginning, it was promises made by Kern County that the trees would be preserved that won the community’s agreement not to protest use of the oak woodland site for the building.
  
  A negative declaration under the California Environmental Quality Act was issued by the county, saying no environmental impact would occur with the building of this facility. Based on that promise, the community was widely supportive of the new library project. We held a jubilant celebration for the groundbreaking, at which the editor of this newspaper, District Four Kern County Supervisor Ray Watson and many others spoke, cheered and praised the project highly.
   
After destruction of the oaks, our newspaper reported that the county broke its promise. Our articles questioned the county’s failure to provide oversight to prevent a negligent low-bid contractor from destroying heritage oak trees. We did not question the county’s “authority to remove trees.” That has never been stated in any of our articles.
   
In fact, we questioned why the county failed to use its ‘authority’ to protect the trees. We questioned why they did not hold the contractor (Tilton Pacific Construction, Inc.) accountable to the requirement in its contract, as set out on page LPD-1, to put protective fencing around the drip lines of the trees before any construction was to begin. See Maimed Oak Trees Reveal Flaws in Contract Oversight which includes a link to the architect’s specific LPD-1 requirements published byThe Mountain Enterprise following a public records request to the Kern County Construction Services Department. See Tree Protection Notes (LPD-1) .]

The grand jury summary continues:
Further investigation revealed many facts that indicate otherwise. Although the county acknowledges that it dropped the ball as far as letting the community know in advance when and why the heritage oak trees had to be cut down, the county has bent over backwards to let the residents of the mountain communities know what is going on in all areas, what is planned and the respective applicable timeframes for doing so.

The basic problem appears to be the fact that many residents do not bother to find out what is going on and these are the folks that complain the loudest when something happens they did not know about.

TME: [This section of the grand jury report reads as an apologia for the county’s actions rather than a fact-based presentation. Bear in mind that neither the county nor Supervisor Watson’s appointed Municipal Advisory Council (MAC) informed the community that the tree removal was about to happen. Saying the "residents do not bother to find out" is blaming the victim. The fact is, information has been withheld from the residents here.

The county began ‘communicating’ only after the trees had been killed and the community demanded answers to strong questions about county oversight. See Videos of Community Protesting Oak Tree Destructioni in Frazier Park and asking county administrators about their lack of oversight.

The original arborist’s assessment that revealed the contractor had damaged the trees was given to the county construction services department early in April. The community saw that report only after June 15, when the broken promise to preserve the trees was irreversible. The aborist report was published in our newspaper, along with an interview. “They mutilated those oaks,” the arborist said in the interview.]

PURPOSE OF INQUIRY:

Articles in the local newspaper of the mountain communities of southern Kern County echoed the community uproar over the destruction of two heritage oak trees located at the new Frazier Park Library site which were cut down without advance notice. The Administration and Audit Committee (Committee) of the 2010-2011 Kern County Grand Jury has chosen to investigate the processes leading to the removal of these trees pursuant to Penal Code §925.

TME: [California Penal Code Section 925 describes the power of the grand jury to investigate county and other government agencies. It is surprising that with all of this investigative power, the grand jury chose not to raise in this report the key fact which nobody disputes: From the first day of construction, the contract granted by the county to Tilton Pacific Construction, Inc. required that they protect the heritage oak trees with industry-standard dripline fencing. If they had complied with this requirement, there would be no need for this report. The trees would still be standing.
     The Kern County Construction Services Department personnel allowed the contractor to continue a full eight months with no protective dripline fencing to prevent damage to the roots, until the damage was done. Only then, after the community’s outrage was expressed through a public meeting and in The Mountain Enterprise newspaper, did the protective dripline fencing appear around remaining oak trees.]

PROCESS:

The Committee interviewed the Kern County Fourth District Supervisor and his Executive Assistant, the Kern County Construction Services Division (KCCSD) Manager, a KCCSD Contract Specialist, a Mountain Communities Municipal Advisory Council (MAC) member as well as members of the community. Portions of the library contract concerning the heritage oaks and their care during construction were reviewed. Also reviewed were arborist reports dated May 19 and October 19, 2010, some KCCSD documents on the subject, and design change drawing LPD-1. Some citizen opinions were gleaned from local newspaper articles and personal interviews.

TME: [The grand jury made no attempt to contact The Mountain Enterprise to seek the basis for the facts that have been reported. The failure to contact us directly is a troubling comment on the intentions and methodology of those who researched and wrote this report.]

BACKGROUND / FACTS:

The southern Kern County mountain communities (communities) consist of Frazier Park, Lebec, Lake of the Woods, Cuddy Valley, Pinion Pines, Pineridge and Pine Mountain Club. The Committee’s initial investigation concerned the heritage oak trees on the parcel of land in Frazier Park where the new library is being built for the communities. The library is located at 3732 Park Drive in Frazier Park. Frazier Park is a community of approximately 2,200 residents located seven miles west of Interstate 5 and approximately 45 miles south of Bakersfield. The population of Frazier Park has changed little in the last ten years.

TME: [As those who live here know, this 2,200 figure from the Grand Jury is misleading. The Mountain Communities as a whole is about 10,000 people—perhaps as many as 12,000 people before the economic implosion (we are all awaiting the census report to be released next week). Our communities extend about 40 miles to the east and west (encompassing the inholdings of Tejon Ranch), and about 20 miles north and south.

This park, its oak woodlands, the Frazier Mountain Park Community Center and the forthcoming library are part of all our lives in the Mountain Communities. Our population encompasses a tri-county region, at the intersection of Los Angeles, Kern and Ventura County lines. Mount Pinos and Lockwood Valley are in Ventura County; Neenach, Gorman and parts of Lebec are in L.A. County; and the majority of our homes are in Kern County, surrounded by the Los Padres National Forest. This creates a unique complexity for residents, who must work with three jurisdictions and the U.S. Forest Service to accomplish basic goals.The region is typically too remote from each of the county seats to be more than an afterthought. In recent years Kern County has been the most involved here. The Kern County Roads Department is particularly appreciated for snow removal.

The communities are a census-designated place (CDP). A CDP is an unincorporated community with no formal form of local government. The Community Resource Center, located in Frazier Park, provides a place for interaction between the communities and the Board of Supervisors (BOS), particularly the Fourth District Supervisor and his staff.

TME: Actually, for many years, the Mountain Communities Town Council was a lively mountain center of debate, problem-soliving and action. Participation ebbed and flowed based upon need. The primary difficulty the Town Council encountered was finding a credible and affordable way to elect representatives from throughout the region. Kern County refused to put Town Council candidates on their ballots. The Rosamond model of a community-elected Municipal Advisory Council (MAC) appeared to some to be a solution, because the county would be required to carry the nominees’ names on the general election ballots. As most here know, that became a bait-and-switch folly, when Supervisor Ray Watson decided he didn’t want to risk having people be elected to a Mountain Communities MAC. He removed the electoral component from the bylaws which had been submitted by the community. Instead, he hand-picked his own protegés.]

Many residents of the communities live there to enjoy a more rural lifestyle in a natural setting with open space and with little government intervention. However, as taxpayers, they expect to receive the same level of service as the rest of the county.

A great deal of planning was involved in the new library project, including many meetings to obtain community input. The library was located at the western portion of the site in order to mitigate potential seismic risks. The plot plan for the library and surrounding area was redesigned at least once to preserve the existing heritage oak trees. Many accommodations were provided in the design, including ample handicap access, a minimal slope parking lot and heated sidewalks to meet the needs of the communities, particularly the elderly.

In order to assure a safe slope in the parking lot that would minimize slipping in icy weather, the grade of the parking lot was changed resulting in the removal of more soil than originally planned. During the additional grading, the earth moving equipment contacted and damaged the roots of one of the heritage oaks. The KCCSD immediately hired an arborist to access the damage done. The damage to the roots of the tree was so severe that the tree would likely not survive. The arborist checked the health of the adjacent heritage oak tree and discovered it had severe interior rot and needed to be removed as well. Failure to remove either tree could be a potential danger to public safety at any time. On the arborist’s recommendation both trees were removed.

TME: [The grand jury omits the fact that the arborist’s report says both trees’ roots had been damaged by construction activity. The grand jury continues to avoid mentioning the real cause of the problem, which was negligence by the county and contractor causing this incident from the beginning. The county allowed the contractor to operate in violation of its contract for a full eight months, even beyond the day the oak tree damage occurred to the two oaks and beyond the day the trees were cut down. For the arborist’s report, see Arborist’s Report about Library Heritage Oaks Released.  For the context in which we reported it, see Oak Tragedy Sinks Faith in County Credibility.]  

The community had continually been assured that the heritage oak trees would be preserved. In design change drawing LPD-1, each tree within the construction zone was to have either temporary fencing placed five feet outside of the tree’s drip-line or a layer of mulch nine to twelve inches thick over all exposed earth from the tree trunk to five feet outside of the drip-line.

TME: [This is correct, but why would this grand jury report not mention that the county and the contractor failed to provide the proper fencing for eight months and that this failure is what led to the damage to the tree roots?]

The community of Frazier Park had no prior knowledge that the two heritage oak trees were going to be cut down until the sound of chain saws greeted them on Saturday morning, June 12, 2010. This incident has exacerbated the perceived long term communication problem between the BOS and the people of the communities.

A. A valley oak tree of the type growing naturally in the mountain communities grows in three phases: 100 years to establish itself and grow, 100 years to live a healthy balanced existence, and 100 years where it gradually decays and dies and turns into mulch for new growth.

B. People of the community feel they have little or no representation in county government and have a general mistrust of its operation and the way their taxes are being spent.

C. The communities have received more value in services from the county than they have paid in taxes.

TME: [The grand jury should provide a clear accounting to back up this statement. The Mountain Enterprise has, in the past, requested this information from the county and has received only a confused justification, including questionable practices such as charging sheriff and fire services to the community for as far away as Tejon Industrial Complex and the many businesses in their travel center, while not including the tax revenue from those same business areas in the “taxes paid” side of the ledger.]

D. The BOS recently formed the Mountain Communities Municipal Advisory Council to better communicate with the residents. This five member council is appointed by the BOS. The MAC meets on the third Tuesday of every month at 7:00 p.m. in the Frazier Mountain Park Community Center. A BOS representative attends most of the MAC meetings; however there are no other regular meetings held unless requested by the communities or the BOS.

TME: [The grand jury omitted the fact that the fifth member resigned because she felt the MAC was being treated as a political rubber stamp for the supervisor rather than as representatives of the community. See ‘Why I Am Resigning from the MCMAC by Linda MacKay.

The community wanted an elected MAC. But the fourth district supervisor refused to allow elections. The fact that 67 percent of Mountain Community voters opposed Supervisor Watson’s reelection may have been a factor in his refusal to have an elected MAC.

The Mountain Enterprise has written about this in reports and an editorial. ]

E. The Fourth District Supervisor has generated projects in which two million dollars of federal funds have been specifically designated to the Frazier Park area.

F. The Fourth District Supervisor has provided funding for a weather-protected bulletin board to be located in a central area of the community that will provide easy access to current county information, including the BOS agenda and minutes. The MAC is overseeing the process.

TME: [The newspaper has as often saluted Supervisor Watson for his positive efforts on behalf of the community—such as the Frazier Park Streetscape project and finding the funds to replace aging water pipes under Monterey Trail prior to streetscape construction—as we have reported concerns about his less constructive choices. Here, the grand jury appears to be writing to build credibility for the county supervisor. Why is that? ]

G. Someone from the county was at the library site every day to supervise and observe the work being done.

TME: [Why has the grand jury not mentioned that this “someone” failed to do their job— which was, in part, to insure that contract requirement LPD-1 was followed from the first day of construction? The damage to the tree roots would have been prevented had they done so. That is the most relevant fact, and the grand jury avoids it at every opportunity. Why? Is placing accountability not part of their investigatory and reporting task?]

H. The BOS approved the planting of two 72-inch boxed oak trees to replace the two heritage oaks that were removed and revised the landscaping plan to provide enhancement to the library grounds. The planting was completed on October 19, 2010.

I. According to the arborist’s report of October 19, 2010, three other oak trees in the adjacent park have been recommended for removal due to severe decay and a resulting danger to people and property.

J. The mountain communities are served by a local weekly newspaper of limited resources.

TME: [No representative of the grand jury spoke with The Mountain Enterprise newspaper or used any factual basis to make this statement. It avoids mentioning that The Mountain Enterprise has served this community for 45 years, and under current management has recently received 11 state and national awards for excellence in investigative reporting and public service.

Two statewide awards were for a five-year-long series of stories about the campaign to win firefighter paramedic service for Pine Mountain—a measure vigorously opposed by Supervisor Watson and his political allies, including the mayor of Bakersfield, who owns the ambulance company serving 86 percent of the population of the county on exclusive contracts with the Kern County Board of Supervisors. Despite costly misinformation campaigns and political lobbying by Bakersfield interests, the mountain community prevailed in their effort to provide timely emergency medical response to save lives, with a 75% vote in favor of the measure to create Kern County Fire Department’s first firefighter-paramedic program. That program is now a great success and has saved lives.

It appears there is an agenda in this report to build only one side in this scenario. Why?]

K. A newspaper article from a mountain communities newspaper, dated November 14, 2010, indicated the imminent removal of three more heritage oak trees near the new library construction area. These are the trees referenced in the arborist report of October 19, 2010. This was the first time the public was made aware of the additional heritage oak tree removal. The newspaper and the MAC received the arborist report at the same time, just prior to the weekly newspaper’s deadline. The MAC had no time to issue a response. Much of the information in the newspaper article was incorrect or misleading, and implied inaction on the part of the MAC to notify the public.

TME: [This claim is false. There was not even a newspaper published on November 14, 2010.

     A member of the community’s Oak Tree Committee circulated a letter for signatures on November 14, and The Mountain Enterprise reported that fact on its website, including a copy of the letter. Our report is accurate as written.

     In the November 19 issue of the newspaper, we reported that appointed MAC member Rob Peterson (a Tejon Ranch Company employee who owns land in Tehachapi) apologized for not sending out the second arborist’s report to the public in a timely manner. We reported this because it is true. Why didn’t Peterson release the information for a week? “I got busy with other things and just sat on it,” he said. In addition, Peterson never sent the report to the newspaper. We received it from a member of the community Oak Tree Committee.

At this point, the grand jury report is clearly making assertions without specifics, and without checking its alleged facts.)

L. A website for the MAC is currently under construction.

TME: [Does this mean that if a MAC website had been available in November, the MAC would have released the arborist’s report instead of holding it back? Why didn’t the MAC release the arborist’s report to the newspaper as soon as they got it? Why didn’t the county itself release it directly to the newspaper as soon as they had it? This has been the community’s news website for years. We hope it is not true that the supervisor advises his appointed MAC members to avoid providing public information through the newspaper because the newspaper has sometimes been critical of the supervisor’s actions.)

FINDINGS:

F1. Most of the valley oak trees in the mountain communities are in their last phase of life.

TME: [An oak’s lifespan is very long. A ‘mother oak’ in neighboring Hungry Valley State OHV Park is reported to be 600 years old. "The last phase of life" for a valley oak can extend for over 100 years.]

F2. In hindsight, an arborist should have been brought in for consultation before any construction on the library project was started. This would have eliminated the surprise of the tree removal, as their deteriorated condition would have been identified early on. Other associated costs could have been reduced or eliminated as well.

TME: [The Mountain Enterprise confirmed with arborist Conway Lopez, who was hired by the county to review the construction company’s mistakes in April 2010, that the grand jury never spoke with him before writing this report. He told us on December 14, this week, that the cavity in one oak tree was not life-threatening. It was the root damage by construction activities that killed both heritage oaks at the library site.

The grand jury is again evading the facts here. The arborist’s report indicated these trees may live another 100 years. If the architect’s instructions on LPD-1 had been followed from the first day of construction, no damage to the trees would have occurred. Industry-standard “best practices” —prepared by arborists—for procedures to protect heritage oaks during construction were already outlined in the contract on page LPD-1. These ‘best practices’ were ignored by both the contractor and county personnel. Why does the grand jury report fail to acknowledge this? ]

F3. Although the damaged roots were outside the required protective radius of the tree, there is a question whether or not the protective fencing was in place at time of the incident. The presence or absence of the protective fencing on the date of the incident has not been established.

TME: [This is flatly false and brings into question the motive of the grand jury for writing this report.

    At no time during the first eight months of construction was there any properly installed protective dripline fencing in place, including the time when the tree roots were damaged. We have published numerous photographs and have a town full of witnesses who know that no one here has ever questioned this truth. We have photographs showing a deep drainage trench within ten feet of both tree trunks before the trees were destroyed. How is it possible that a grand jury investigative committee report could be full of so many false statements?]

F4. Attendance by the communities at the MAC meetings is generally low.

F5. Citizens lacking effective communication with their governmental representatives may develop perceptions refuted by the facts.

F6. The mountain communities weekly newspaper’s articles appear to be inaccurate and/or inadequately researched.

TME: [The grand jury, in this report, has demonstrated such a clear bias toward the county supervisor’s wishes to try to discredit our community’s newspaper, and to lessen the frustration of the appointed MAC members about the community’s lack of respect for their role, that a response to this one is hardly necessary. If the grand jury wishes to cite specific errors or inadequate research regarding our oak tree reporting or our September 10 editorial on the county’s negligence, they are invited to send an email to editor@mountainenterprise.com. We’ll publish it along with our response.

In the meantime, as stated above, the grand jury’s failure to contact us directly to discuss this charge with specifics is a troubling comment on the intentions and methodology of those who researched and wrote this report]

F7. The MAC website has the potential to be a primary source of information and notification for citizens of the mountain communities.

TME: [Such as withholding both arborists’ reports, which is what happened before the local newspaper published them? The conclusions of one of the reports, by arborist Conway Lopez, was distributed in Bakersfield county offices in April, but was not released to the public until this newspaper secured it late in June—only after the trees had been killed. The other was available in early November, and was only released late that month, when the newspaper published it.

If Supervisor Ray Watson is in control of both the community’s news and the MAC, what would be the impact on the public’s right to know? The struggle for self-determination, and the ability to independently verify often-questionable information emanating from an urban county seat 50 miles away is the issue for many Mountain Community residents. The  inaccuaracies showcased in this grand jury report models precisely why citizens are concerned.

All news media in our state, and the nation, should be concerned about the turn of events being proposed by this grand jury report.]

COMMENTS:

Communication is a vital aspect of our civilization today. A lack of communication between parties can cause misunderstanding and a small problem can often balloon into something needlessly unpleasant. It is apparent in the case of the heritage oak trees that effective communication was lacking between the county and the communities. Had better communication taken place, the need to cut down the oaks would have been better understood and accepted by the community resulting in much less anger and frustration.

RECOMMENDATIONS:

R1. The residents of the mountain communities need to acknowledge that most of the valley oaks growing naturally in the area are in their last phase of life and will be decaying and dying naturally over the next decade or two, and accept the fact that, from time to time, some of these trees may have to be removed for public safety.
TME: [Nobody disputes this, and nobody ever has. In fact, it is the community that has been researching reforestation techniques and has brought reforestation programs to the county parks administration and the Board of Supervisors as recently as this month. The newspaper has reported about this.]

R2. Citizens of the mountain communities need to regularly attend the MAC meetings to keep informed of what is going on in the community as well as what is being planned, and to give each resident an opportunity to voice his opinion before decisions are made.

TME: [The supervisor’s own decision not to allow the MAC to be an elected body here, as it is in Rosamond (Kern County’s only other MAC) is the source of disinterest in the MAC locally. The newspaper has routinely reported about what transpires at the MAC meetings, which so far is very little that is meaningful. Is the supervisor so desperate to legitimize his appointed MAC that he is now willing to subvert the grand jury system to try to accompish that?]

R3. The residents of the mountain communities need to more actively use the available avenues for communication with the BOS.

TME: [The Mountain Communities are very active in their use of available avenues for communication with the Board of Supervisors. They have made frequent treks to Bakersfield to express their concerns directly to the Board of Supervisors. They do not hesitate to call our salaried county administrative personnel and often receive excellent direct response from those departments, although budget limitations are a factor. For the supervisor to attempt to impose a board of unpaid politicized volunteers between the citizens and their public employees is viewed as a barrier, rather than a facilitator, to communication.]

R4. The mountain communities should not overly rely on the newspaper as their sole source of information.

TME: [ The grand jury has used this entire report to attempt to lay a foundation for this statement, based on misrepresentations of fact too numerous to summarize here, but detailed above.

•This recommendation alone raises significant concerns about political influence on the grand jury’s own procedure. Its failure to pursue even basic fact-finding regarding the deeper issues, and the payment of $70,000 in change orders to a contractor which appears to have been in breach of contract is another red flag.

•We have long been supporters of the grand jury system in California, so we find it of great concern that this grand jury seems to be indulging in a classic case of “shoot the messenger” rather than looking with more diligence at the underlying basis of facts that have been published. It is unconscionable that no member of the grand jury has approached The Mountain Enterprise to go over the underlying documentation we have utilized in our own research regarding the issue of the oaks, the contractor, and the change order payment.

•Change Order No. 4, placed as Item 20 on the Kern County Board of Supervisors 2 p.m. Agenda August 24, 2010, from Tilton Pacific Construction, Inc., asked for $9,968 to remove the stumps for the trees they had destroyed by not following the LPD-1 instructions in their own contract, and $60,046 to do the oak tree protection work which was already encompassed within the scope of that contract—service which the company had not delivered from the first day of construction as agreed in the contract it signed. Additional payment for oak tree protection was allocated by the Board of Superviors August 24 without one question: $70,014. Bear in mind, the public is already paying for this under the terms and within the price of the original contract.

•Why does the grand jury nowhere report about the issue of this change order, which is a legitimate concern about spending public money?  We fully reported this in EDITORIAL: County Was Wrong to Double Pay Library Contractor .]

•Our positve proposal to the Kern County Board of Supervisors in that editorial:
The Kern County Board of Supervisors should rescind its August 24 vote on Change Order 4 and direct Construction Services to see that all costs related to the damage, destruction, removal and replacement of the two heritage oaks; plus all costs related to all protective measures that were neglected for eight months, are to be charged back to the contractor. This should include every penny spent to mitigate the results of the contractor’s breach of contract.

This report from the Kern County Grand Jury is the only reply we—the staff of The Mountain Enterprise and the community—have received from Bakersfield regarding our published concerns about safeguarding the public’s tax money.

The Kern County Board of Supervisors and the Mountain Communities Municipal Advisory Council should each post a copy of this report where it will be available for public review.

Persons wishing to receive an email notification of newly released reports may sign up at
www.co.kern.ca.us/grandjury, click on: Sign up for early releases.

Note: Present and past Kern County Grand Jury Final Reports and Responses can be accessed through the Kern County Library system and the Kern County Grand Jury website:
www.co.kern.ca.us/grandjury.

RESPONSE REQUIRED WITHIN 90 DAYS TO:

PRESIDING JUDGE
KERN COUNTY SUPERIOR COURT
1415 TRUXTUN AVENUE, 2ND FLOOR
BAKERSFIELD, CA 93301

cc: FOREMAN
KERN COUNTY GRAND JURY
1415 TRUXTUN AVENUE, SUITE 600
BAKERSFIELD, CA 93301

This is part of the December 10, 2010 online edition of The Mountain Enterprise.

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