BY LINDA BENTLEY | FEBRUARY 18, 2015
Rose Law Group files $10 million notice of claim against town
CAVE CREEK – On Feb. 12, Attorney Loren Ungar with the Rose Law Group (Vice Mayor Adam Trenk’s employer) filed a notice of claim against the town on behalf of Darrell and Meridy Hulsing (r) and T.C. Thortenson with a $10 million settlement demand.
The notice was served on Town Manager Peter Jankowski, Town Clerk Carrie Dyrek and former Town Manager Usama Abujbarah.
The Hulsings own Petite Acres, the mobile home park east of the Hideaway Bar behind Circle K, which abuts and dips into the southern boundary of Grapevine Wash, designated a 100-year flood plain by Maricopa County Flood Control District (MCFCD).
The MCFCD aerial photo of the property indicates Petite Acres has trailers abutting the wash and encroaching into the flood plain.
The Hulsings assert one trailer has already fallen into the wash, another unit is on the verge of falling in, while a third has been deemed uninhabitable.
The notice states another structure, currently rented by Marcus Mumby, is at risk of falling in and if the town does not take action to immediately correct the problem Mumby’s life and property will be in danger.
Thorstenson, who owns Hogs ‘N Horses saloon and the former Julie Terry property east of Petite Acres, is claiming several structures on his property have also fallen into Grapevine Wash.
Prior to the recent flooding events, the notice indicates Petite Acres used to have a five-foot tall by 18-inch thick, reinforced concrete wall, which, after more than 50 years as serving as a barrier along its northern boundary, was destroyed by a previous flooding event.
Although the wall was said to be several dozen feet away from the banks of the wash, it appears the wall would have had to been located within the flood plain.
The notice claims back in 1993 the wash had two main tributaries and the northern tributary carried more water than the southern tributary and flowed like that for decades “until the town began interfering with the flow of the wash.”
The notice fails to mention what former owner Terry did along the wash at Thorstenson’s property because of bank erosion.
Terry had local contractors dump construction debris on her property to build up the steep bank along the wash.
However, much of that dumped construction debris, consisting of concrete, block, tile, cement, pallets, landscaping waste and contaminated fill, ended up polluting the wash each monsoon season.
After the Cave Creek Landfill closed, contractors apparently found Terry’s offer to dump construction waste on her property too good to pass up.
As Terry was collecting signatures to petition the town to rezone her residential property to commercial, she said she wanted to increase the amount of land behind one of the houses on her property by having contractors dump construction debris behind it and along the wash bank.
Because the property is set high up from the wash, building any sort of retaining wall would have been prohibitively expensive.
When the town learned what Terry was doing, she was ordered to remove the debris and remediate the wash.
As far as we can recall, both MCFCD and the town engineer were involved in instructing Terry how the remediation needed to be carried out.
The notice, however, claims Abujbarah “had been ordering the earthworks, rip-rap, grading and other activities that had been taking place in the wash. It appears the town was engaging in these actions to protect the Desert Awareness Park from erosion and to prevent the road from being washed out.”
While the notice doesn’t mention anything about Terry’s years of construction debris dumping to alter the wash bank and wash flow, it goes on to assert it was the town’s activities had a “substantial negative impact on downstream property owners.”
The notice makes note of the fact that council terminated Abujbarah last year and states, “Although no cause was cited for his termination, it appears from newspaper articles that Mr. Abujbarah was incompetent and inexperienced, engaged in improper conduct, and exposed the town to millions of dollars in liabilities.”
It’s not clear what newspaper articles to which Ungar is referring but it could be articles written by Phil Haldiman, who was since terminated by the Arizona Republic.
Haldiman used to send articles to Trenk for “approval” prior to publication.
Haldiman was also being wined and dined by Interim Town Manager Rodney Glassman, who was only hired because he was a friend of Trenk’s, as he was sorely lacking in qualifications and experience.
Ungar then goes on to claim, “Upon information and belief, a few days after he was terminated, Mr. Abujbarah hired a data recovery professional to go the town manager’s office and securely erase all of his e-mail communications.”
This appears to also be a Trenk fabrication. The town’s IT personnel, according to town policy, removed Abujbarah’s personal information from the town computer so Glassman could use it.
The town’s policy is to erase all e-mails after 30 days, so as not to require increasing the size of their server’s storage space every year.
The common denominator to Ungar’s assertions appears to be Trenk, a Rose Law Group employee, buddy of Thorstenson and defendant in complaints filed by Abujbarah.
Trenk is currently being recalled along with his three fellow slate councilmen Mike Durkin, Reg Monachino and Charles Spitzer.
Thorstenson states his five-acre property, which he too was unsuccessful at getting rezoned to commercial use, is valued at approximately $4 million.
According to Thorstenson, one acre of his parcel has already been eroded into Grapevine Wash and he believes the value is diminished by at least $800,000.
The claimants retained an engineer, who charged them $14,488.75 to determine the town had engaged in unauthorized earthworks in the wash, “which resulted in the wash being moved out of its natural channel and increased its velocity, which in turn caused the damage to claimants’ property.
To prevent litigation, the claimants are willing to settle for $10 million. If the offer is accepted by the town, the claimants will release the town from any and all causes of action.
However, Ungar goes on to offer a couple alternatives, the first of which is for the town to “fix the situation it has caused.”
He suggests the possibility of employing hydrology engineering to revert the water flow to its original location and then use a mixture of dirt fill and gabions to restore the south bank.
Ungar says the other option is for the town to “simply purchase claimants’ property.”
He says this would buy the town time to decide what it wants to do and put a solution in place.
According to Ungar, claimants estimate $10 million might be sufficient to cover the cost of engineering and hydrology services, or in the alternative, the purchase of their property.
If the town does not respond within 60 days, and the matter has not been resolved, Ungar says claimants will have no other choice but to initiate litigation.
