OPINION: Lawsuit alleges more than dirt covers up a Piedmont Park sinkhole

Then the conservancy told restaurateur Katherine Drolett to get back to work.

She didn’t. Since there was never a definitive answer to what caused the sinkhole, her lender, insurance company and contractor all balked at continuing work on her project to build two restaurants in the old building near the park entrance at 12th and Piedmont. Who knows if another collapse might occur?

The war of words and legal salvos have escalated since, as Drolett and her business partner, David Duley, have insisted the conservancy has waged a “cover-up” that began with grout being poured in the sinkhole. The two don’t blame the city, mind you, (a rarity); they claim the conservancy has obfuscated and prevaricated concerning the sinkhole’s possible danger.

The case is set to go to trial Monday in front of Fulton Superior Court Judge Scott McAfee, who has moved on from the Trump racketeering case to now overseeing one concerning loose dirt.

The latest wrinkle in the battle is a report, dated Nov. 15, 2018, from an engineer hired by the conservancy. In essence, it said, nothing to see here, move along.

Credit: Bill Torpy

Credit: Bill Torpy

In 2019, Mark Banta, then the conservancy’s CEO, quoted that report to The Atlanta Journal-Constitution, noting the engineer was “confident the structure is sound and well founded.” He added the grout dumped into the hole by the city “is adequate to prevent further soil erosion that could result in under-slab voids like the one repaired for the foreseeable future use of the building.”

But what Banta was quoting was really the 10th, and sanitized, version of that report.

The next sentence of the original report read: “However, not knowing the exact nature of the soil erosion and possible alternate pathways, we cannot predict if or where a future sinkhole might form. In the interest of caution, we suggest the following measures:”

That sentence had been removed.

The original report, written by engineer Eric Hagberg, then had three bullet-pointed paragraphs with recommendations. 1) Monitor the ground outside the building on a quarterly basis. 2) Have a geotechnical engineer perform coring tests inside the building where the sinkhole occurred. 3) Create entry points in the restaurant’s floor where coring tests can continue.

Again, all removed, as were several other sentences and all mentions of “sinkhole.” They were changed to “void.”

It took three months for the restaurateurs to get that oft-changed report. During this time, then-CEO Banta and the conservancy’s lawyer, Jason McLarry, conferred with at least four others, including a PR exec on the conservancy board, to guide the engineer as to how to write his report.

For instance, lawyer McLarry emailed engineer Hagberg saying, “We met yesterday and discussed your report. … Could you please revise to remove reference to continued monitoring and boring?”

To the restaurateurs, who’ve spent $1 million in attorneys so far, this is evidence — the smoking sinkhole as you were — that lays bare a conspiracy by a powerful group to hide potential danger.

Mind you, no geotechnical engineer ever conducted an in-depth investigation on the sinkhole, err, void. They couldn’t. It got filled in.

Credit: Courtesy

Credit: Courtesy

Also, the Georgia appeals court once noted, “The Conservancy never provided (the restaurateurs) with a geotechnical engineering report identifying the cause of the sinkhole or certifying the area as safe, and work did not recommence.”

After the collapse, Banta, seeking help from the city, called the matter a “life safety emergency,” saying water could be heard “rushing” under the building’s foundation during rains.

Sinkholes can be tricky, as the conservancy knows. In 2016, Banta told The Southerner, the old Grady High School’s newspaper, about one in the park’s meadow that took months to fix.

At first, workers thought a large pipe had cracked. But “when they finally dug down and got it dried out” … “they learned it was actually a terra cotta pipe that had broken. It was a much, much smaller pipe that was part of an old storm sewer.”

I called McLarry and the conservancy for comment and got a statement saying, “We look forward to presenting our case to a jury next week.”

In court filings, McLarry said he spoke with the PR exec to fend off Drolett’s “public attacks,” and the engineer was hired as an expert for the expected court battle.

The conservancy tried to prevent the release of the ever-changing engineering report, saying it was covered by attorney-client privilege. It also asked the judge to prevent Banta’s “life safety emergency” statement from coming up in trial, as well as allegations of a cover-up.

McAfee released several of the documents, writing they were “admissible as prior inconsistent statements” and for “impeachment purposes.” That is to call BS on some of the conservancy’s contentions.

Also, he will allow the plaintiffs to allege the conservancy “sought to cover up the void or made misrepresentations about the repair to the public.”

Such allegations, he wrote, “are relevant to the determination of bad faith …”

A Fulton jury this week will learn all about shifting earth — and stories.