By Mark Gutglueck
A confluence of factors, including three city council members’ intense distrust of Mayor John Valdivia, is preventing San Bernardino city officials from resolving the environmental hazard that has come about as a result of over a thousand tons of fragmented concrete having been left unattended at the north end of the city.
On June 5, 2020, a fire broke out in the Kuehne & Nagel warehouse, a 600,000 square foot structure in the 2200 block of West Lugonia Avenue in Redlands which had served as a holding/distribution/dispatch facility for large items sold by on-line retail behemoth Amazon. The fire gutted the building, which was a total loss.
The concrete walls were torn down. Initial plans were to haul them off to whatever landfill would take them.
In San Bernardino, some 12.5 miles away as the crow flies or variously 15.6 miles or 18.3 miles distant via differing routes using the local freeway system, there was a place where someone thought the rubble could be put to use.
At the far extension of Palm Avenue in North San Bernardino’s Verdemont District, the so-called Oxbow project, a planned development of 40 single-family residential units by Newport Beach-based Oxbow Communities, Inc. that had been on the drawing board for nearly a decade-and-a-half, was on hold. There had been a number of financial, practical and administrative considerations that were preventing the project from moving forward. A key obstruction was that the land upon which the project was to be built was uneven and would require either intensive grading and then hillside reinforcement or the introduction of fill into the low-lying side of the property or its crevices to render it level. The emerging availability of the concrete from the Kuehne & Nagel warehouse represented what appeared to be an ideal solution to Eric Cernich, Oxbow Communities’ principal. With the approval of Redlands city officials, Cernich arranged to have the concrete walls partially broken up at the Lugonia Avenue property. He then had the concrete trucked over to the Oxbow project site.
In August 2020, Verdemont District residents noted that dump trucks were transiting up Palm Avenue and depositing massive loads of the large shards and chunks of shattered concrete onto vacant land near the Oxbow project site. When they queried of San Bernardino city officials what was happening, they were told that Oxbow Communities had clearance from the city to utilize the concrete as fill. If they would just be patient, those residents were told, the eyesore would disappear as the concrete was pulverized and ground into manageable-sized pieces and mixed with dirt to be thereafter compacted so it might disappear under the foundations of the homes that were to built and the yards and lawns that would eventually surround those homes.
When the wind kicked up, however, the people in the neighborhood found themselves, their houses, cars and pets peppered and pelted with dust and concrete fragments anywhere from the size of sand to pebbles. There was concern that the concrete itself was not stable physically or chemically and that it represented a safety and health hazard. When City Hall was met with complaints, then-City Manager Teri Ledoux downplayed the problem, offering an assurance that the Environmental Protection Agency’s standards contained in its Land Development and National Pollutant Discharge Elimination System guidelines rated the concrete as a low-level or nonexistent health threat.
Residents countered that the dozens of heavily-laden diesel trucks carrying the concrete to its destination were spewing exhaust into the air and tearing up the surface of Palm Avenue.
At that point, in late September and early October 2020, then-Fifth Ward Councilman Henry Nickel, in whose ward the Verdemont District lies, was locked in a reelection effort. For him, the matter represented both a challenge and an opportunity. The challenge consisted of the perception that City Hall was insensitive to the problem, the visual blight and the inconvenience the presence of the concrete represented to the community, and that Nickel was likewise insensitive to the problem or, if he was indeed empathetic to the plight of his constituents, that he was ineffective in bringing about a resolution to the dilemma. The opportunity the situation presented to Nickel was that if he acted effectively in redressing the issue, he would gain, or retain, a reputation as an effective representative of the Fifth Ward, and that would redound to his benefit in his reelection effort.
Accordingly Nickel was the city council’s most vocal critic of what Oxbow Communities was doing, and he demanded that the city ensure that the processing of the concrete – further crushing or grinding to reduce it into composite for fill – take place offsite so as to obviate the generation of dust and particulates that would represent a health threat to those in the area who were breathing it.
City staff took samples of the concrete, intending to subject them to tests to ascertain if the material represented a toxic threat to nearby residents.
In October, Nickel in conjunction with then-Seventh Ward Councilman Jim Mulvihill, who was also up for reelection in November, convinced two of their colleagues – Sandra Ibarra and Juan Figueroa – to issue a demand to Oxbow Communities and Cernich that the concrete be removed, and that any processing of the concrete – crushing, grinding or pulverizing – be carried out offsite.
Councilmen Theodore Sanchez and Fred Shorett, who reasoned that allowing Oxbow to keep the concrete onsite so it could be processed to be used as fill would expedite the progression toward the ultimate completion of the Oxbow project, were opposed to giving Cernich any such ultimatum. Then-Councilwoman Bessine Richard was absent from the October 21 city council meeting, and did not vote on holding Cernich and Oxbow to account. If she had been present and had voted with Sanchez and Shorett, that would have given Mayor John Valdivia authority to veto the vote by Nickel, Mulvihill, Ibarra and Figueroa.
Under normal circumstances, Valdivia, as mayor, is not empowered to vote. He does, however, have veto authority on 4-to-3 or 3-to-2 votes. Since the vote to order the removal of the concrete had passed on a 4-to-2 vote, Valdivia did not have the reach to veto it.
Valdivia was motivated to assist Cernich in keeping the concrete at the Verdemont site. Cernich had provided Valdivia’s electioneering fund with $1,500 in two $750 installments, one on July 14, 2020 and another on September 8, 2020. Greenleaf Engineering of Huntington Beach, owned by Tim Greenleaf, who had the contract for the demolition of the Kuehne & Nagel warehouse and relocating its concrete walls to San Bernardino, had provided Valdivia’s election fund with $2,000 in two $1,000 installments on October 2, 2020 and on October 7, 2020.
On December 16, 2020, Ben Christmas-Reynoso, Kimberly Calvin and Damon Alexander were sworn in to office to replace, respectively Nickel, Richard and Mulvihill, all of whom lost their council berths as a consequence of the 2020 political season.
If Cernich had hopes of convincing the council to allow the concrete to remain onsite so he could crush it there and combine it with dirt and pour it into the crevices and ravines at the site where the subdivision is to be built, that was dashed when Chirstmas-Reynoso proved every bit as adamant as Nickel in seeing the concrete removed and Oxbow Development prevented from crushing it on site.
In December or thereabouts, Cernich handed the Oxbow project off to another entity, Carson-based Pacific Coast International Group. In turn, Pacific Coast International created a sub-entity, Palm Avenue Development, based in Irvine, to see the residential subdivision built.
The council at some point in a closed session resolved to mandate that the concrete be removed. On January 15, 2021, Pacific Coast International/Palm Avenue Development and Jazzar Construction Group, a parallel entity involved in the Oxbow project, were presented with a notice that the city was giving the new Oxbow project developer 30 days to remove the concrete.
The city indicated that if an effort to remove the concrete was not under way by January 25 and substantial progress toward the complete removal of the concrete was not made by February 14, it would undertake to do that removal and slap a lien against the property to ultimately recover its costs in carrying out that job.
February 14 came and went without any of the concrete being removed.
The city then made good on its threat, seeking from the San Bernardino County Superior Court authorization to go onto Pacific Coast International’s property at the top of Palm Avenue and begin the removal of the concrete rubble. Superior Court Judge Charles Umeda granted the city’s request for the warrant to do the abatement, contingent upon the city giving Pacific Coast International 24 hour’s notice via posting at the site or 48 hours notice by U.S. Mail or email delivered to the head of Jazzar Construction Group, Ronald Aljazzar.
On April 7, the city council voted to authorize the expenditure of $2 million toward the concrete removal effort, slating the work to begin on April 12 and proceed at a steady pace, such that the debris would be removed 50 days hence, on June 1. The work was to be done by Cemex, a Mexican multinational building materials company with California corporate headquarters in Ontario. To pay for the abatement, the city intended to place a lien on the property, such that it would be able to recover the $2 million from Pacific Coast International/Palm Avenue Development/Jazzar Construction Group before the construction on the Oxbow subdivision could proceed.
The vote to give Cemex the concrete removal assignment passed 4-to-3, with Christmas-Reynoso, Calvin, Sandra Ibarra and Damon Alexander prevailing, and councilmen Fred Shorett, Ted Sanchez and Juan Figueroa dissenting. Valdivia then vetoed the approval of the abatement plan.
Sanchez, Shorett and Figueroa believe that subjecting the developer to the cost of removing the concrete from the site and carrying out the processing of the material elsewhere before relocating back to the site where it will be used to form the base beneath the subdivision would be prohibitively expensive and that once the material is removed it will never come back and the project will be abandoned, with the land lying fallow for another 15 years.
Shorett prides himself as being pro-development and does not want to see the city surrender the prospect of having upscale homes built at the site.
Sanchez told the Sentinel that the fears expressed by some residents that the concrete represents a health hazard do not comport with actuality.
“The concrete has been tested by two scientific labs and they have found it is not toxic,” Sanchez said. “It will not be hazardous to crush it where it is, as long as it is done correctly. What will be far more hazardous is making thousands of trips using diesel-fueled trucks to get it out of there. The ideal way is for the developer to crush it onsite and then use it as fill along with earth that will be compacted to even out the ground, because those houses cannot be built on those slopes. Doing it any other way at this point will be difficult and will cost millions of dollars.”
An issue with the crushing of the concrete is that it will be to some degree powderized into particulates that when stirred up by the wind could spread over the area. Those breathing that concrete dust could suffer severe lung damage. A methodology that could be applied, building industry sources maintain, is to spray the concrete as it is being cut, crushed or stamped into smaller fragments to anchor the dust, after which the final product would be covered until it is mixed with dirt and pressed into place as the base for the construction site.
Sanchez acknowledged that the wind does blow debris from the piles upon piles of concrete mounded about the neighborhood. He also acknowledged that Valdivia has an “ulterior motive” in seeking to help out the developer. Nevertheless, Sanchez said, working out a solution to the circumstance that avoids trucking the concrete away and back while getting the project site ready for development was the best way to approach the quandary.
Sanchez said he was certain that Christmas-Reynoso and Calvin could not be persuaded to give Pacific Coast International/Palm Avenue Development/Jazzar Construction Group an opportunity to process the concrete onsite to redress the property contour issues and move ahead with the project, and that it was highly doubtful that Ibarra could be made to come around and support Pacific Coast International/Palm Avenue Development/Jazzar Construction Group, either. He did hold out hope, however, that Alexander would see his way clear to fall in line with him, Shorett and Figueroa in forming a coalition with regard to letting Pacific Coast International/Palm Avenue Development/Jazzar Construction Group use the concrete fill too expedite the completion of the Oxbow subdivision.
Henry Nickel, who has now been out of office for more than four months, says he believes that the concrete rubble debacle did him in last November. Nevertheless, he said, “I’m 100 percent behind Ben [Christmas-Reynoso] on this. Ben’s definitely on the right track. That concrete needs to be abated. Aside from being a nuisance and an eyesore, it’s a hazard. They [Pacific Coast International/Palm Avenue Development/Jazzar Construction Group] are in absolute violation of whatever permits were issued, of the city code, of everything. That area is not zoned for concrete crushing or grinding. They do not have permits to use that as a dump site or holding site for concrete. It was a major staff faux pas to let them do that.”
Nickel said there was a lot of finger-pointing by staff, with no one willing to acknowledge responsibility for having given Oxbow Communities clearance to move the fragmented concrete onto the property near the top of Palm Avenue.
The only criticism he made of Christmas-Reynoso was to say that his successor needs to sharpen his skills in political horsetrading and logrolling. “I wish Ben could get five votes,” Nickel said. “Four votes is not enough. Four votes simply throws the decision to the mayor. Ben has to figure out how to amass five votes. He has to figure out how to win Juan’s [Figueroa’s] support on this. Juan is the swing vote. In October, Juan voted with us. Ben has to work to get that fifth vote. The fifth vote will come around. It’s a matter of trade-offs. He has to ask himself what he is willing to give and what Juan is willing to accept so he can get that fifth vote.”
Nickel said, “Staff dropped the ball on this. They should never have let the concrete be set down there in the first place. It is hurting our community. The bottom line is that the council has to reconcile this. How do they fix it now that staff has overstepped their authority and their discretion? This is an example of how there is this constant tension between elected officials and professional staff. Staff should have been defending the community. If they were going to let them bring that concrete in, they should have required a bond in case it had to be abated.”
Nickel said he suspected that Cernich and Greenleaf were provided with $2 million by the owners of the Kuehne & Nagel warehouse to haul the concrete off. He said he further suspected that Oxbow Development/Cernich and Pacific Coast International/Palm Avenue Development are one and the same.
“They may very well have created these shell companies and LLCs,” he said. “Corporations have funny ways of moving things around. I have seen so many deals like that, it wouldn’t surprise me. Whoever holds that property, whether it is the original owner in another guise or a new owner, has assumed the liability. The city needs to move in there and abate it. We need to get compensated, so we should slap a lien on the property and recover our costs. If it is a new owner, the new owner bought this mess. If the problem wasn’t disclosed because the previous owner violated the terms of the permit, then the new owner should sue for nondisclosure.”
Nickel said that Shorett was not willing to support forcing the abatement of the concrete because, ‘He doesn’t want to be seen as doing something that will hurt developers. The thing is, I think it is pretty clear the developer in this case accepted money to take the concrete off the hands of the owner of that warehouse and dump it someplace. They ended up dumping that material near existing residential properties. That was probably fraudulent conduct and possibly criminal. The city and the residents are being played for fools here. I am not against development, and I would say that I was as pro-development or more than anyone on the council. But in this case, the developer is taking advantage of the city. This is a threat to the health and safety of the community. There can be no crushing activity in that area. If I was on the council, I would be more than happy to go after everybody who had a hand in this. That is what the council needs to do: The city should front the costs of cleaning this up and then go after anybody and everybody who tried to take advantage of us. We should sue, and not just stop there, but put a lien on their property. We should make their lives a living hell. We need to say to them, ‘If you want to pull a fast one on the city, you are going to get your ass handed to you and we are going to get our pound of flesh.’”
By Mark Gutglueck