February 5, 2019 San Clemente City Council Toll Road Up-date

 

at 12:10 Citizen Marty Benson

at 13:56 Presentation by City Council Member Kathy Ward regarding Capistrano Unified School District

The Alternatives that will effect CUSD Public Schools are 13, 14, 17 and 21.

[see: CUSD Board Agenda at page 666]

Road Detail shows that if Los Patrones (currently a free arterial road); is converted to a Toll Road, the road will be widened and "truck climbing lanes" will be added.

TCA is currently making the decision as to whether or not Los Patrones from Oso to La Pata will be tolled.

Lisa Bartlett just added a new alignment that would go behind the dump and connect to La Pata near the San Clemente/ San Juan Capistrano Border.

 

CUSD's concern is that the TCA is trying to make this a special road for Trucking - moving cargo from Riverside to San Diego. Truck only lanes

[for an example see: Georgia Plans $2 Billion Truck-Only Roadway to Fight Traffic Bottleneck]

Schedule - TCA is not allowing Public Comment until Jan- March 2021 even though they have just added truck climbing lanes and the new Lisa Bartlett route. 

Alignment 21 and the Lisa Bartlett alignment were added without any public in-put and the "Public" comment period is not scheduled until 

CALL TO ACTION:

The Public Must Send Comments NOW! Do not wait until January - March 2021.

It will be to late.

The attorney for CUSD stated that it was his opinion that what was going on, was collusion between three agencies (TCA/ CalTRANS and the County of Orange) to build a Toll Road without environmental review or due process.

*In my personal opinion this is criminal fraud being committed by four entities (TCA/ CalTRANS/ The County of Orange and Rancho Mission Viejo). TCA was denied a wastewater discharge permit to build a Toll Road south of Oso Parkway. The 241 was effectively dead at Oso Parkway until the 4 entities agreed to move the Toll Road on top of the Los Patrones Parkway alignment, and use Rancho Mission Viejo's 401 Wastewater Discharge Permit which was granted to the Ranch to build Los Patrones Parkway (a FREE arterial road). That permit specifically states on it that it cannot be used to build a toll road. These four entities used it for a toll road anyway, and were able to avoid environmental review by doing so.  For Supporting Documentation See: Citizen Complaint filed with the California Department of Real Estate 

The School District remains opposed to these alignments.

*Since July 2017, CUSD has been asked to defend taxpayer property rights at Tesoro High School, and to protect the health and safety of staff and students at Tesoro High School by filing an action to Quiet Title on land that they own that was put into the right of way for the Toll Road by entities that did not own them. CUSD has refused to take that action. Therefore CUSD may be complicit in the fraud that has been committed on the Public.

January 24, 2019 CUSD BOT Meeting Agenda Item #31 Presentation on School Impacts from State 241 Toll Road Extension Alternatives

Board Audio at 44:44 BLUE CARD SPEAKER during Oral Communication: Dawn Urbanek re: Request that CUSD Protect Taxpayer property rights and the health and safety of students by taking action to remove Parcel #125-096-59, #125-096-60, #125-096-69 and #125-096-82 from CC 2001-01 and take action to Quiet Title on CUSD property. 

Board Audio at 48:20 Superintendent Kristen Vital asks Deputy Superintendent Clark Hampton to follow up and clarify "mis-statements of fact".

Board Audio at 57:17 Presentation by CUSD Special Counsel Stan Barankiewiez re: School Impacts from State Route 241 Toll Road Extension Alternatives Agenda Item #31

CUSD Board Agenda at page 666

at 21:53 Presentation by City Attorney Scott Smith of Best Best & Krieger

Report out on the City of San Clemente and The Reserve Lawsuits against TCA.

The TCA had filed Demurrers trying to stop the lawsuits against the TCA.

With minor exception, the TCA lost and these lawsuits will be allowed to go forward.

The part that could not move forward required the Water Board to participate, and they are not currently a party to the lawsuit.

The Court found that the Settlement Agreement and the Cooperative Agreement did not just create an avoidance area, it directed the TCA to take action to find a new alternative. The City of San Clemente is opposed to any new alternatives through the City. 

The Court also found that parties to the cooperative agreement may not have had authority to execute the cooperative agreement. 

The Court also found that the allegation that the Brown Act was violated when the Settlement was reached could move forward as a viable cause of action because the Statute of Limitations had not run. 

*If the Brown Act Violation is up-held then it would mean the Settlement Agreement that created the avoidance area would be overturned.

The Court also ruled that the City of San Clemente could bring an action to enforce California Fish and Game code that the TCA is violating by placing a Toll Road through San Clemente Open Space.

The Court is allowing the City and the Reserve to amend their complaint to stop the TCA from spending $19,878,667.60 million in Developer Fees that it may not have the authority to spend. 

[See County of Orange Oso Parkway Bridge Construction Project Change Order

The City and the Reserve are attempting to move the hearing up to a sooner date. 

The City is also going to try and stop the TCA from collecting any further Development Fees from San Clemente since the benefit (connection to the I-5) may no longer be there.

Court Documents can be found at the following link:

Riverside Superior Court Public Access: Case RIC 1800232 

Case RIC1800232 - Actions/Minutes 

Viewed
Date
Action Text
Disposition
Image
  04/15/2019 8:30 AM DEPT. 04  HEARING RESERVED FOR: MOTION FOR LEAVE TO FILE A SECOND AMENDED PETITION - RES87041  Calendared (Reservation Hearings)    
  04/15/2019 8:30 AM DEPT. 04  HEARING RESERVED FOR: JOINT MOTION TO BIFURCATE TRIAL - RES87407      
  04/15/2019 8:30 AM DEPT. 04  HEARING RE: MOTION TO/FOR LEAVE TO FILE A SECOND AMENDED VERIFIED PETITION FOR PEREMPTORY WRIT OF MANDATE BY CITY OF SAN CLEMENTE, PEOPLE OF THE STATEOF CALIFORNIA EX REL.      
  04/15/2019 8:30 AM DEPT. 04  CASE MANAGEMENT CONFERENCE HEARING - COMPLEX CASE.      
  04/08/2019 8:30 AM DEPT. 04  HEARING RESERVED FOR: MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT - RES87020      
  01/31/2019  ON-LINE MOTION RESERVED ON BEHALF OF THE RESERVE MAINTENANCE CORPORATION.      
  01/31/2019  HEARING RESERVED SET 04/15/19 AT 8:30 IN DEPT. 04 - RES87407      
  01/29/2019 8:30 AM DEPT. 01  CASE MANAGEMENT CONFERENCE HEARING - COMPLEX CASE.  Continued Not Heard    
  01/29/2019 8:30 AM DEPT. 04  HEARING RE: MOTION TO/FOR STRIKE THE FIRST AMENDED RESERVE MAINTENANCE CORP PETITION BY FOOTHILL/EASTERN TRANSPORTATIONCORRIDOR, BOARD OF DIRECTORSOF THE FOOTHILL/EASTERN  GRANTED IN PART    
  01/29/2019 8:30 AM DEPT. 04  HEARING RE: DEMURRER TO 1ST AMENDED WRIT OF MANDAMUS-CEQA OF CITY OF SAN CLEMENTE BY FOOTHILL/EASTERN TRANSPORTATIONCORRIDOR, BOARD OF DIRECTORSOF THE FOOTHILL/EASTERN   SUSTAINED IN PART    
  01/29/2019 8:30 AM DEPT. 04  HEARING RE: MOTION TO/FOR DEMURRER TO INTERVENOR CAPISTRANO USDS PETITION AND COMPLAINT IN INTERVENTION BY COUNTY OF ORANGE, BOARD OF SUPERVISORS OF THE COUNTY OF  SUSTAINED IN PART    
  01/29/2019 8:30 AM DEPT. 04  HEARING RE: DEMURRER TO 1ST AMENDED WRIT OF MANDAMUS-CEQA OF CITY OF SAN CLEMENTE BY STATE OF CALIFORNIADEPARTMENTOF, MALCOLM DOUGHERTY,ACTING IN HIS OFFICIAL   SUSTAINED IN PART    
  01/29/2019 8:30 AM DEPT. 04  HEARING RE: DEMURRER TO 1ST AMENDED CONSOLIDATED COMPLAINT OF THE RESERVE MAINTENANCE CORPORATION BY STATE OF CALIFORNIADEPARTMENTOF   SUSTAINED IN PART    
  01/29/2019 8:30 AM DEPT. 04  HEARING RE: MOTION TO/FOR STRIKE CITY OF SAN CLEMENTES 1ST AMENDED PETITION FOR WRIT OF MANDATE BY FOOTHILL/EASTERN TRANSPORTATIONCORRIDOR, BOARD OF DIRECTORSOF THE FOOTHILL/EASTERN  DENIED IN PART    
  01/29/2019 8:30 AM DEPT. 04  HEARING RE: DEMURRER TO 1ST AMENDED CONSOLIDATED COMPLAINT OF THE RESERVE MAINTENANCE CORPORATION BY FOOTHILL/EASTERN TRANSPORTATIONCORRIDOR, BOARD OF DIRECTORSOF THE FOOTHILL/EASTERN   SUSTAINED IN PART    
  01/29/2019 8:30 AM DEPT. 04  CASE MANAGEMENT CONFERENCE HEARING - COMPLEX CASE.  Continued    
 

at 27: 41 Comments by City Counsel Member Dane Bane

The entire City Council is opposed to any Toll Road alignment through San Clemente. 

The Case can finally move forward on the merits.

 

The Capistrano Unified School District also had a hearing on January 29, 2019 that was not really mentioned in the City of San Clemente's Toll Road up-date. 

HEARING RE: MOTION TO/FOR DEMURRER TO INTERVENOR CAPISTRANO USDS PETITION AND COMPLAINT IN INTERVENTION BY COUNTY OF ORANGE, BOARD OF SUPERVISORS OF THE COUNTY OF 

 

* The Capistrano Unified School District is responsible for the Health and Safety of staff and students at Tesoro High School. The District has an obligation to enforce property rights in order to protect taxpayer property and the health and safety of staff and students.

In June 2017 CUSD was made aware of the fact that a Toll Road was being constructed on CUSD property without proper health and safety risk studies and without protective barriers such as a wall (3,777' long 10' high).

[see: CUSDWatch: June 28, 2017 CUSD BOT Meeting Agenda Item #38 RESOLUTION NO. 1617-89, RESOLUTION OF THE CAPISTRANO UNIFIED SCHOOL DISTRICT OPPOSING ANY TOLL ROAD EXTENSION ALIGNMENT THAT ADVERSELY IMPACTS DISTRICT SCHOOL SITES AND STUDENTS]

Board Audio at 15:58 Superintendent Vital re: Construction of Los Patrones Parkway

"CUSD has asked legal council to examine the Grant Deeds for Tesoro High School and had them plotted by a licensed land surveyor. Based on that plotting, Los Patrones Parkway is not being constructed on District property. It is; as we have maintained, on land adjacent to the District's property. 

It is a County approved project and does not involve any District approvals, easements or agreements.

Los Patrones Parkway in either the form it is being constructed today, or in the original SR-241 Toll Road Alignment were part of, and addressed by the districts CEQA analysis for both Tesoro High School and Esencia K-8 School.

Air quality and noise impacts among others were all part of the environmental consideration under taken not only by the District, but also by the County in approving the EIR's for Rancho Mission Viejo.

Neither the Districts environmental documents for our sites nor Rancho Mission Viejo environmental documentation suggests the presence of toxic soils.

Concerns, relative to dust from grading are legitimate concerns shared by the District—and the District will do its part to report any observed fugitive dust emissions to the Orange County Planning Director, as called for in the Rancho Mission Viejo EIR and addendums for the Roadway.

Before TCA can construct the ultimate Toll Expressway extension to Interstate-5, it will be required to identify, and environmentally review, a new alignment for such a project. The District will continue to monitor and review such proposals, and can address any concerns created by that proposal if and when it is presented."

Board Audio at 46:27 BLUE CARD Dawn Urbanek 

Clarification of Kristen Vital's opening remarks regarding Tesoro High School Property Parcel Nos 79 and 82. A Toll Road is being graded that is 500' feet from Tesoro's Tennis Courts and inside Tesoro's property boundary. 

Board Audio at 52:23 Superintendent Kristen Vital

Kristen Vital asked CUSD attorney Jeff Hoskinson to clarify the concerns expressed about Los Patrones because with so many people in the audience she did not want the Public to have mis-information. "It is really important that we clarify and provide accurate information to our community and our Board that is accurate."

Kristen Vital then restated that in her opening comments she talked about the fact that the road was not being graded onto CUSD property. She stated that mis-information had been reported about wether or not this was CUSD property.

Board Audio at 53:00 Attorney Jeff Hoskinson

The attorney clarifies by stating that Parcel 82 is owned by the District based on the deeds CUSD has. Parcel 79 where construction is partially taking place is not owned by the district. 

Board Audio at 54:15 Attorney Jeff Haskins 

It appears that the road is 500' from the tennis court.

Tesoro EIR:

The 1996 EIR Analysis for Tesoro is not correct because it did not do any studies within 500' of the schools because it was not required at the time. That statute did not come into effect until 2004. That statue requires that a health risk assessment be done for any road that is within 500' of a school.

Esencia EIR:

The 500' study was done for Esencia however it was done assuming Los Patrones was a Parkway.  EIR Analysis for Esencia is not correct because it was done assuming that Los Patrones was an arterial road NOT a toll road. It is now a Toll Road so the review is not accurate. 

The 2004 EIR 589 contained the following statements pertaining to risks to Tesoro High School from Los Patrones - a FREE arterial road. No Health/risk studies were done for a Toll Road on the Los Patrones Parkway alignment. 

Impacts from Construction of an arterial road included - Landslides- Liquefaction- Drainage- Noise - Air Quality

There is no valid CEQA for the Construction of the 241 Toll Road from Oso parkway south.

CUSD should have filed a Cease and Desist to Quiet Title on its property and taken measures to protect the health and safety of staff and students that it identified in it's Januaey 24, 2019 Presentation as potential impacts to schools:

CUSD, as the owner of Parcel 125-096-82 should have been included as landowner within the subregion, but they were not.

2004 EIR 589 at page 2-4

2004 EIR 589 at page 3-24

2004 EIR 589 at page 3-30

2004 EIR 589 Exhibit 3-22 (at page 130 of the document)

Environmental Setting, Impacts, and Mitigation Measures:

at page 4.1-2

2004 EIR 589 at page 4.1-5

2004 EIR 589 at page 4.1-18

2004 EIR 589 at page 4.1-23

2004 EIR 589 at page 4.4-11

* The following are the threats to Tesoro High School Staff and Students:

2004 EIR 589 at page 4.1-12 LANDSLIDES

2004 EIR 589 at page 4.1-17 LIQUEFACTION

2004 EIR 589 at page 4.1-18 Did CUSD receive the required "letter of consent" permitting off-site grading?

* Prior to any construction of the Oso Bridge Gap Closure Project, CalTRANS was required to open NEPA. Instead, TCA/ CalTRANS/ The County of Orange and Rancho Mission Viejo used the 401 Wastewater Discharge Permit granted to RMV to build Los Patrones as a FREE arterial road. These parties designed all of the wastewater onto CUSDs' Parcel 125-096-82 and underneath the school. So, there is a continuous trespass of water onto school district property.

The permit specifically states 

2004 EIR 589 at page 4.5-82 DRAINAGE

2004 EIR 589 at page 4.8-30 NOISE

* Noise studies were taken by Tesoro High School Tennis Courts for an Arterial Road - not a Toll Road.

2004 EIR 589 at page 4.9-162 Funding of RMV Open space

* There is currently a pending investigation into the validity of CC 2001-01 (The Right of Way for the Tesoro Extension of the 241 Toll Road). RMV claimed ownership and transferred all four parcels of land owned by the Capistrano Unified School District into the right of way. Land the Ranch did not own since 1997 and 1999. 

[see: Complaint to Department of Real Estate]

Funds are being transferred every time land is transferred. Isn't this a gifting of public assets to Rancho Mission Viejo?

2004 EIR 589 at page 7-10 Cumulative Impacts - Projects without CEQA Documentation

2004 EIR 589 at page 7-36 Impacts on CUSDs' District Office 

 

2004 EIR 589 at page 7.3.12- Projects without Approved CEQA Documentation. Capistrano Unified School District - San Juan Hills High School (Construction has been Initiated)

 

2004 EIR 589 at page 7-61 SOCTIIP

 

2004 EIR 589 Exhibit 7.3-3 at page 1,324 SOCTIIP Alternatives

2004 EIR 589 at page 8-2 Parties that were consulted

2004 EIR 589 at page 9-3 References