Date: February 13, 2018
To: Tod Sax, Division Chief, Enforcement Division
California Air Resources Board
To: Dr. Mathew Buffleben, SIU Supervisor
The Office of Enforcement - Special Investigations Unit
California State Water Resources Board
From: Dawn Urbanek, Taxpayer/student Advocate Capistrano Unified School District
Re: San Diego Water Board "F" Street from "A" Street to Oso Parkway Project Certification Number R9-2014-0144
REQUEST FOR EMERGENCY INTERVENTION AND INJUNCTIVE RELIEF
It has come to my attention that the San Diego Water Board is understaffed and cannot properly investigate these matters in a timely manner. As such, I am forwarding this information to your office for Immediate Review and Emergency Action in the form of an injunction which will STOP WORK until legal issues can be resolved.
Parcel 125-096-82 is of pivotal importance in consideration of enforcement, and a Cease and Desist, and an Injunction. Ownership of this parcel by Capistrano Unified School District since 1997 effects the Right-Of-Way, Water Drainage, Air Quality for the following projects:
Oso Bridge Project
Oso Bridge Gap Closure Project
Los Patrones aka "F" Street Project
Statement of Facts
(1) Certification Number R9-2014-0144 expressly states:
"F" Street is not the Tesoro Extension of SR-241 that was denied waste water discharge requirements by the San Diego Water Board in 2013 (proceeding on Tentative Order R9-2013-0007) or a facility related to SR-241 and the Tesoro Extension is not covered by this Certification. "F" Street will be operated by the County of Orange as a free road."
(2) Despite the explicit language in Certification Number R9-2014-0144 Caltrans/TCA/County of Orange/and Rancho Mission Viejo have in fact proceeded to grade the Tesoro Extension of the 241 Toll Road Oso Bridge Gap Closure Project on Tesoro High School Property without any setback, without the EIR required protective barrier (a 10' high 3,770' long wall), and without the minimal vegetative screen required prior to issuance of the grading permit per CEQA.
(3) Despite the explicit language in Certification Number R9-2014-0144 Caltrans/TCA/County of Orange and Rancho Mission Viejo have designed drainage of the Tesoro Extension of the 241 Toll Road Oso Bridge Gap Closure Project to drain into, and underneath Tesoro High School property due to flaws in the Certificate of Compliance Parcels (125-096-59, 60, 69 and 82). The work is being done under Certification Number R9-2014-0144 with the parties representing publicly that the Oso Bridge Gap Closure Project has not begun and that the work being done is the "F" Street from A Street to Oso Parkway Project aka Los Patrones Project.
(4) Despite repeated requests to STOP WORK and verify that the work that is being done is in compliance with Certification Number R9-2014-0144, no party will comply, the work continues, and the PUBLICS request for verification is ignored.
(5) It is my concern that there has been a substantial change in the alignment of the Tesoro Extension of the 241 Toll Road that was administratively approved to avoid re-opening CEQA, NEPA, and the California Coastal Commission review.
(6) The Tesoro Extension of the 241 Toll Road from Oso Parkway to the I-5 Freeway at the County Line is being built in "segments" that are administratively approved for the specific purpose of avoiding CEQA, NEPA and the California Coastal Commission.
(7) The Right-of-Way for this project... Certificate of Compliance County of Orange State of California CC 2001-01 contains material errors.
Capistrano Unified School District has owned Parcels 59-60-69-82 since 1997:
CC-2001-01 shows the owner as DMB San Juan Investment North LLC
CC-2001-01 shows the owner as DMB San Juan Investment North LLC
CC-2001-01 shows the owner as DMB San Juan Investment North LLC
CC-2001-01 shows the owner is San Juan Partnership III
San Juan Investment North LLC and San Juan Partnership III had no rights to convey school district property to the Right of Way because they did not own the property.
Parcel 82 was encumbered on July 26, 2001 by San Juan Partnership III
Parcels 59-60-69 were encumbered on July 26, 2001 by San Juan Investment North LLC
The land south of Oso Bridge which is part of the Oso Bridge Gap Closure project has clouds on title which resulted in encumbrances on Tesoro High School property by individuals that did not own the property, and have no rights to encumber the property.
(8) The Notice of Determination filed by Orange County Public Works to obtain Certification Number R9-2014-0144 indicated that the required analysis under CEQA had been completed. In addition to material misrepresentations of fact contained in the Notice of Determination, substantial changes in alignment were approved "administratively" without outside environmental review. Some documents eliminated Tesoro High School as a "sensitive receptor" and mis-stated the distance of Tesoro High School from "F" Street aka Los Patrones aka Tesoro Extension of the 241 Toll Road.
(9) Without EMERGENCY INTERVENTION Tesoro High School students will suffer permanent and irreparable harm as the result of allowing a Toll Road to be on school district property without the required protective barrier. The shift in alignment is so substantial that all noise, pollution and traffic studies no longer apply. The conduct of all parties: Caltrans/TCA/County of Orange, Rancho Mission Viejo, the San Diego Water Board and the Capistrano Unified School District itself, have demonstrated a callous disregard for the health and safety of Tesoro High School students and staff.
(10) The Oso Parkway Bridge Project Initial Study IP 15-252 states at page 73:
"The Tesoro High School property line is approximately 500 feet from the Project construction areas, while the school buildings are located further away at approximately 725 feet east of the high school at its closest point. Though a public facility, the high school is not considered a visually sensitive use because the visual character of the surrounding areas is not critical to the purpose of the use and the design of the facilities is inward-facing, not oriented to visual surroundings. Additionally, the natural vegetation east of Tesoro Creek Road would provide an element of visual screening of the roadway from the school. The proposed Project would not have an effect on the visual character of the school. The approved Los Patrones Parkway alignment provides for greater separation of the roadway from the high school than what was evaluated in FEIR 584 and FEIR 589, thereby lessening the potential impacts to the high school. The grading for the Project south of Oso Parkway (mainline gap closure) will be limited and within the grading footprint of Los Patrones Parkway analyzed in an addendum to FEIR 584 and FEIR 589. There will also be grading for the bridge structure and some minor grading associated with the placement of the sidewalk on the southern side of Oso Parkway. However, from the high school, the Project would visually be perceived as a continuation of Los Patrones Parkway and would not substantially change the visual character that was evaluated as part of the FEIRs."
*All underlined portions are false statements that cannot be supported with facts.
The Oso Parkway Bridge Project Initial Study IP 15-252 states at page 294
The original alignment:
The current alignment is a single road; a Toll Road, where Los Patrones used to be.
(11) The Oso Parkway Bridge Project Initial Study IP 15-252 states at page 78:
"4.3 AIR QUALITY 4.3.1 SUMMARY OF PREVIOUS FINDINGS"
"FEIR 584 and FEIR 589 analyzed the construction and operational impacts associated with their respective projects, including infrastructure projects in the area of the Project. Both FEIRs identified short-term, construction-related emissions of carbon monoxide (CO), volatile organic compounds (VOC), oxides of nitrogen (NOX), and particulate matter with a diameter of 10 microns or less (PM10) in excess of the South Coast Air Quality Management District’s (SCAQMD) daily significance thresholds and quarterly significance thresholds. Construction activities would result in a significant direct air quality impact for CO, NOX, VOC, and PM10 (NOx and VOC are ozone [O3] precursors). Heavy-duty equipment emissions were calculated using the then-current (2004) emissions assumptions for construction equipment. However, the mitigation measures in FEIR 589 committed to having off-road diesel equipment comply with emission control regulations in force at the time of construction."
"In addition to construction emissions, the FEIRs found that the operational emissions of CO, VOC, NOX, and PM10 on a regional scale would result in significant direct and cumulative impacts based on SCAQMD thresholds of significance."
"FEIR 584 and FEIR 589 also found the following:
• Local operational impacts would be less than significant. The FEIR 589 analysis showed that 1-hour and 8-hour CO concentrations at all analyzed intersections would be less than State and federal standards.
• The operations of the Ranch Plan are not expected to expose a substantial number of people to objectionable odors.
• The Ranch Plan would not conflict with or obstruct implementation of the Air Quality Management Plan (AQMP) because implementation of the proposed Ranch Plan would not exceed growth projections for the subarea."
In conjunction with certification of FEIR 589, the County Board of Supervisors adopted a Findings of Fact and a Statement of Overriding Considerations for construction and operational air quality impacts. In certifying FEIR 584, the Findings and Facts in Support of the Findings, adopted by the Board of Supervisors, referenced the Statement of Overriding Considerations previously adopted for FEIR 589."
Air Quality Studies excluded PM2.5 which is more lethal than PM10.
12) The Oso Parkway Bridge Project Initial Study IP 15-252 states at page 287
"The closest noise-sensitive uses to the proposed project are the tennis courts and school buildings at Tesoro High School. Table E shows the build-out traffic noise levels at the tennis courts and nearest school building façade. The location of the Tesoro High School tennis courts and school buildings, along with their respective distances from the proposed Los Patrones Parkway, are shown on Figure 4. While the increase in noise level would be perceptible to the human ear in an outdoor environment, the build-out noise levels would remain below the County’s exterior noise standards and would not result in any significant noise impacts."
These studies would not be valid for a Toll Road next to the school rather than a Parkway. Because a Tool Road is being built- the distance from the road to the property line of Tesoro High School is no longer 500'. The Road is built on the Property line less than 100' from the Tennis Court with no protective barrier. The difference in the volume of traffic and the speed of traffic on a Toll Road vs an arterial would also negate this study.
(13) The Oso Parkway Bridge Project Initial Study IP 15-252 states at page 285
"Construction Vibration Impacts Vibration generated by construction equipment can result in varying degrees of ground vibration, depending on the equipment. The operation of construction equipment causes ground vibrations that spread through the ground and diminish in strength with distance. Buildings on soil near an active construction area respond to these vibrations, which range from imperceptible to low rumbling sounds with perceptible vibrations and slight damage at the highest vibration levels. Typically, construction-related vibration does not reach vibration levels that would result in damage to nearby structures."
Kitchell Report Tesoro High School November 2018 at page 7:
(14) State Route 241 Foothill South and Tesoro Extensions Settlement Agreement shows an avoidance area east of Los Patrones from the Oso Parkway all the way south to the I-5 at the County Line. There was not enough land to build both a free arterial road Los Patrones aka "F" Street and the Tesoro Extension of the 241 and that is why only the Tesoro Extension of the 241 is being constructed and why the construction is now on school district property.
San Diego Water Board Permit allowed the Ranch to utilize drainage on CUSD property without notifying CUSD and the Public because it did not realize that the Certificate of Compliance CC 2001-01 was flawed. As a result, the water from all three projects is designed to drain onto Tesoro High School Property/Parcels. It is illegal for water from these three projects to trespass on to Tesoro High School parcels.
When you blow up the pictures on Google Maps- Zillow and Bing it is obvious that a lot of work has been done on Tesoro High School Property line without the legal set back.
If you zoom in close, you can see all the drainage culverts that have been created on Parcel 82 when the High School was built 1997- 2000, and approved by the Army Corp of Engineers. This drainage system is now being used by these three projects.
The water then runs underground
Farther South along Tesoro Creek Road, culverts drain water from the Toll Road west to Tesoro High School.
The first one is below
The second one is below. It is on the property line of Parcel 125-096-82 and it looks like it is intended to drain onto school district property.
The culvert continues and actually passes under Tesoro Creek Road in two places.
First one shown below
Second one shown below
And new gravel is draining water from Tesoro Creek Road West to the Tennis Courts
There are four more culverts that run between the California Native Plant Garden and Tesoro High School Track.
And next to Tesoro High Schools Base Ball Diamond
This grading and drainage work is being done inside Tesoro High School property boundaries on Parcels 60, 69 and 82.
Administrative Approval by two County Employees
It appears that on March 5, 2015, Robyn Uptegraff, Assistant Director of Orange County Public works filed a Notice of Determination indicating that the required analysis under the California Environmental Quality Act ("CEQA") had been completed.
Robyn Uptegraff - Assistant Director of Orange County Public Works
Shane Silsby - Director of Orange County Public Works
Khalid Bazmi - County Engineer
The document filed with the San Diego Water Board to obtain a 401 Waste Water Discharge Permit contained material mis-statements of fact as high lighted below.
Tesoro High School Facilities Report November 2017
Could the cracking be the result of the construction of the road so close to a school?
The noise studies that were done in the original EIR were done on a different alignment:
The Tesoro Extension of the 241 Toll Road was a separate road much farther to the east of Tesoro High School. Los Patrones aka "F Street" was a separate road that was designed as a "Free Arterial Road". Because an arterial road is not as wide as a "Toll Road", Los Patrones aka F Street would have been at least 500 feet from Tesoro High School property line.
January 24, 2018 CUSD BOT Meeting Agenda Item #39 RESOLUTION NO. 1718-31, RESOLUTION OF THE BOARD OF TRUSTEES OF THE CAPISTRANO UNIFIED SCHOOL DISTRICT AUTHORIZING THE ACCEPTANCE AND RECORDATION OF A QUITCLAIM DEED RELATIVE TO ORANGE COUNTY ASSESSOR PARCEL NO. 125-096-82
A toll road is much wider and has higher traffic volumes and speed.
The shift in alignment should have triggered a new review of noise and air pollution effects on Tesoro High School staff and students.
In addition to Robyn Uptegraff's mis-statements on the Notice of Determination it appears that Shane Silsby, Director of Orange County Public Works began ADMINISTRATIVELY approving changes to the alignment and construction of the Tesoro extension of the 241 Toll Road; such the there is now a single road, a Toll Road that is on the alignment of what was suppose to be Los Patrones aka "F" Street (a free arterial road).
*It should be noted that while a single road is being built, there was two separate funding sources- One for "F" Street aka Los Patrones"; and separately, one for the Tesoro Extension of the 241 Toll Road (this requires some further investigation).
The Addendum to FEIR 584 and FEIR 589 removed Tesoro High School as a "Sensitive Receptor" and stated at page 4-10:
"The Rancho Mission Viejo Planned Community Plan is consistent with regional and State air quality planning programs. The proposed alignment of “F” Street would not result in any new impacts, nor would it increase the severity of a previously identified significant impact as analyzed in FEIR 589."
There are now clouds on Title within the Caltrans right-of-way. Work has been done on parcels that were not owned by the parties who signed the Certificate of Compliance for the Right-of-Way. The Capistrano Unified School District was not a party to this document.
CUSD owns Parcel 125-096-59, 60, 69, 82, and has since 1997. CUSD may also own a piece of Parcel 79.
Construction of the Tesoro Extension of the 241 should be enjoined while property rights are settled, and clouds on the titles to Parcels 59 - 60- 69 -79 and 82 are removed. There may be a substantial number of other encumbrances on these parcels as a result of the Freeway Right of Way established by CC 2001-01.
The San Diego Water Board should be asked to REVOKE it's 401 Wastewater Discharge Permit as the Capistrano Unified School District was never notified that this work would be done on Tesoro High School property. Work was done on Parcel 82.
Orange County Public Works - OC Survey Land Records 2.0 shows something very different?
Source: http://www.ocpublicworks.com/survey/products/records Click on the map.
Parcel 82 looks the same
But Parcel 79 is totally different
And Parcel 83 has changed and look- the 241 Direct Connection to Los Patrones is on this map
What is going on with these Parcels? Who owns them.
And these documents show encumbrances?
Certificate of Compliance:
Tesoro High School Property 125-096 Parcels 59 - 60 - 69 - 82
The San Diego Water Board 401 Water Quality Certification
The San Diego Water Board 401 Water Quality Certification expressly stated in its permit on page 1 and 2:
"The Applicant proposes to construct a new County of Orange arterial road called "F" Street that will extend approximately 5.5 miles from Cow Camp Road north to Oso Parkway, at the current terminus of State Route-241 (SR-241 ). In the future, "F" Street will be renamed to Patrones Parkway. "F" Street is not the Tesoro Extension of SR-241 that was denied waste discharge requirements by the San Diego Water Board in 2013 (in the proceedings on Tentative Order No. R9-2013-0007) or a facility related to the SR-241 and the Tesoro Extension is not covered by this Certification. "F" Street will be operated by the County of Orange as a free road. "F" Street is proposed to be a County of Orange Rural Secondary Highway, modified to include a raised median and a future community trail on the west side. "F" Street supports development of the Applicant's Planning Area 2 and Planning Area 3 projects, provides an alternate route to Antonio Parkway, and improves vehicle throughput to the SR-241 . On June 24, 2014, the Orange County Board of Supervisors approved an agreement for Grant of Fee Credits with the Applicant, which will allow the County to grant fee credits to the Applicant and accept the road right-of-way and improvements if the Applicant constructs "F" Street.
In addition; on page 2, the permit specifies the actual size of the "modified Rual Secondary Highway":
The Final Question...
Did the Orange County Board of Supervisors give Shane Silsby Administrative authority to make changes to "F" Street aka Los Patrones aka the Tesoro Extension of the 241 Toll Road?
It appears they did!
Colby Cataldi is the Deputy Director OC Public Works/Development Services
Satinder Verma is the Inspection Services Manager
This department provides inspection services related to grading and subdivision inspections as well as encroachment inspections.
Shane Silsby will now replace Colby Cataldi and Satiner Verma in the review of the items listed on page 5.
The Oso Bridge project is an Orange County Capital Improvement Project
Oso Parkway Bridge Replacement
The County of Orange's Manager of OC Flood Control and Shane Silsby have replaced the Manager of Watershed and Coastal Resources in reviewing the Items on page 6.
Shane Silsby has also replaced the Director, PDS (AQMP) Air Quality Management Program
Apparently Shane Silsby unilaterally decided that Tesoro High School was not a Sensitive Receptor and not only did not install the 10' high 3,700 foot wall that was required he also made the decision NOT to install a vegetative barrier to protect students from fugitive dust.
Shane Silsby unilaterally decided that approval from the United States Fish and Wildlife Service is not needed.
Shane Silsby unilaterally decided that the review of the following items by both the OC Public Works and the Manager of Harbors, Beaches & Parks was not required.
HUMM? Did the County Board of Supervisors delegate approval authority to Shane Silsby in February 2016? It looks like they Did-
OC PUBLIC WORKS
8. Approve cooperative agreement D15-033 with Foothill/Eastern Transportation Corridor Agency and agreement MA-080-16011316 with State Department of Transportation for future construction of Oso Parkway Bridge over State Route 241; authorize Director or designee to execute future amendments to cooperative agreement and Freeway Agreement under certain conditions; and make California Environmental Quality Act and other findings - Districts 3 and 5
Letter with Attachments from Shute, Mihaly & Weinb (The Attorney for the Environmental Groups that Settled with the TCA to preserve San Onofre)
There appears to be collusion between the TCA/County of Orange/Rancho Mission Viejo/the San Diego Water Board and even the Capistrano Unified School District to complete the Tesoro Extension of the 241 in segments to avoid CEQA even at the expense of Tesoro High School Staff and students.
Background Documentation on Chiquita Canyon High School aka Tesoro High School