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October 24, 2018

 

Statement in Opposition to Construction of the Tesoro Extension of the 241 Toll Road 

Dawn Urbanek, San Clemente Resident

CUSDWatch: Taxpayer and Student Advocate Capistrano Unified School District

 

Opposition Point 1: Action to Quiet Title- Capistrano Unified School District's Tesoro High School property is contained in the Right of Way for the Tesoro Extension - Taxpayer Property Rights Must Be Protected - CEQA requires all entities to protect "Sensitive Receptors"

1. Under CEQA all of the entities (CalTRANS- TCA-County of Orange- Rancho Mission Viejo- the San Diego Water Board and CUSD) have an obligation to protect "Sensitive Receptors". 

2. Tesoro High School (originally Chiquita Canyon High School) is a "Sensitive Receptor" that sits on four parcels of land that have been owned by the Capistrano Unified School District since 1997.

  1. Parcel 125-096-59, 
  2. Parcel 125-096-60,
  3. Parcel 125-096-69 
  4. Parcel 125-096-82.

2. In April 2001, all four of these parcels were transferred into the Right-of-Way for three projects as evidenced by Certificate of Compliance CC 2001-01:

    The Projects are:

  1. Los Patrones aka "F" Street aka the Tesoro Extension of the 241 Toll Road,
  2. The Oso Bridge Project and
  3. The Oso Bridge Gap Closure Project.

3. Parcels 125-096-59, 125-096-60 and 125-096-69 were transferred into the Right-of-Way by San Juan Investment North, LLC. However, San Juan Investment North LLC did not own the three parcels at the time of the transfer. The Capistrano Unified School District owned the three parcels. San Juan Investment North LLC had no right to transfer this land into the right of way.

4. Parcel 125-096-82 was transferred into the Right-of-Way by San Juan Partnership III. However,San Juan Partnership III did not own parcel 125-096082 at the time of the transfer and had no right to transfer Parcel 125-096-82 into the Right of Way. The Capistrano Unified School District owned Parcel 125-096-82. 

5. There are clouds on Title that remain and must be resolved prior to any further construction.

6. This matter was brought to the attention of the Capistrano Unified School District during a Board Meeting in June 2017. CUSD's own attorney confirmed on the record that Parcel 125-096-82 was in fact owned by the Capistrano Unified School District. 

Board Audio at 15:58 Superintendent Vital makes a statement on the record that Los Patrones Parkway was not being built on District Property. 

Board Audio at 46:27 BLUE CARD Dawn Urbanek, Taxpayer and student Advocate. CUSD owns Parcel 125-096-82 and possibly 125-096-79 which means the Toll Road/Los Patrones Parkway appears to be being built ON school district property with no set back, and without the EIR's required protective barrier (a 10' high 3,700' long wall).  Addendum to the SOCTIP Final Subsequent Environmental Impact Report SCH #2001061046 at page 1-4 shows that the road was shifted 800' closer to Tesoro High School. At page 3-15 and 16 it shows the Wall requirement.

Board Audio at 52:23 Superintendent Vital makes a statement on the Record asking Attorney Jeff Hoskinson to comment on land ownership of Parcel 125-096-82 and the roads distance from Tesoro High School property boundary.

Board Audio at 54:15 Jeff Haskins, Attorney for CUSD states that CUSD does in fact own parcel Parcel 125-096-82. He also clarifies that a Health Study may be required to protect the students.

7. In January of 2018, CUSD accepted a Quit Claim Deed for Parcel 125-096-82 but has not taken any further action to took Quiet Title on all four parcels.

8. The failure of CUSD Trustees to protect taxpayers property rights is a breach of fiduciary duty to the taxpayers that Trustees are elected to protect and their inaction may constitute a gifting of public assets.

9. The Failure of CUSD to require any protective barrier prior to grading or new Health Risk Assessments shows a callous disregard for the health and safety of staff and students.

10. All work should have been stopped while all Titles to property were settled and new Health Risk Assessment were completed.  

 

Opposition Point 2: CUSDs' Ownership of Parcel 125-096-82 + the 800' shift in the alignment of the road has resulted in a misuse of the Rancho Mission Viejo's 401 Waste Water Discharge permit for Los Patrones Parkway (a FREE arterial Road)

1. Parcel 125-096-82 is of pivotal importance. Ownership of this parcel by Capistrano Unified School District effects the Right-Of-Way, Waste Water Discharge permits, and CEQA for all three projects. Work on all three projects is being done under Certification Number R9-2014-0144 which was granted to Rancho Mission Viejo for the Los Patrones Project ONLY. Explicit language in the 401 Waste Water Discharge Certification, granted to the Ranch on June 4, 2015 prohibits the Certification from being used to build the Tesoro Extension of the 241: 

"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. Using the 401 Wastewater Discharge Certification granted to the Ranch for the construction of  Los Patrones as a FREE arterial road, the Ranch has proceeded to grade and construct drainage for all three projects. All of the drainage has been designed to drain onto parcel 82. The water is in effect, "trespassing" onto school district property. Tesoro High School sits on soil that can liquify in an earthquake or with heavy vibration. In a recent school facility study (The Kitchell Report at page 7) the report indicated that there was structural cracking that may be the result of soil issues. This study was brought to the attention of both the County Board of Supervisors and the TCA. They chose to ignore that information and have taken no action to protect the health and safety of Tesoro staff or students.

3. The shift in alignment; west towards the school, should have invalidated all environmental studies that were done to determine any adverse effects on Tesoro High School students (noise, air etc).

4. In addition to the above, the parties have been grading adjacent to Tesoro High School without any protective barrier. The EIR page 3-15 and 16 shows the Wall requirement. required a 10' high 3,700' long wall which has never been constructed. There is not even the minimal vegetative screen that was required prior to issuance of the grading permit by County of Orange per CEQA which wrongly omitted Tesoro High School (a "Sensitive Receptor"). 

5. The students at Tesoro have potentially been exposed to fugitive dust that may have long term health consequences as a result. Despite repeated requests to STOP WORK no party will comply, the work continues, and the PUBLICS request for verification has been ignored. The callous disregard for the health and safety of Tesoro High School staff and students in unconscionable. 

 

Opposition Point 3: CalTRANS- TCA-County of Orange- Rancho Mission Viejo- the San Diego Water Board and CUSD appear to have acted in concert to build the road in segments for the purpose of avoiding CEQA.

1. The TCA applied for a 401 Waste Water Discharge Permit for the extension of the 241 on November 14, 2012. That application was denied on June 19, 2013. The TCA appealed that decision to the State Water Board. On September 23, 2014 the State Water Board remanded the decision back to the San Diego Water Board for final determination.

2. On June 24, 2014; while the Appeal was pending; the County Board of Supervisors, through a Cooperative Agreement approved a decision that would allow the County and the TCA to compensate Rancho Mission Viejo Company for the cost of the Right-of-Way, grading and construction of Los Patrones Parkway. They also required that Los Patrones be built to toll road specifications. Under the Agreement, the County of Orange continued to act as Lead Agency for CEQA. (Did Rancho Mission Viejo get compensated from the TCA for CUSDs' 4 parcels of land? Land they did not own?)

3. While the TCA Appeal was pending; on November 24, 2014, Rancho Mission Viejo filed an incomplete application for a 401 Waste Water Discharge Certification with the San Diego Water Board for Los Patrones Parkway.

4. On March 4th, 2015 Rancho Mission Viejo shifted alignment of Los Patrones Parkway to the west, closer to Tesoro High School.

5. On March 5, 2015 County of Orange Filed a Notice of Determination "F" Street Alignment (Cow Camp Road to Oso Parkway) The Notice of Determination did not acknowledge that Tesoro High School is a "Sensitive Receptor", and in fact incorrectly stated that "there are no sensitive receptors in the Ranch Plan Area". 

6. On March 16, 2015 the San Diego Water Board denied the TCA's appeal effectively terminating the Tesoro Extension of the 241 at Oso Parkway.

7. On April 9, 2015 Rancho Mission Vejo completed its application for a 401 Waste Water Discharge permit for the Los Patrones project using the new alignment (which was closer to the Tesoro High School). The Los Patrones permit also allowed for grading land and preparing of waste water drainage on parcels located between the Los Patrones on and off ramps to the Oso bridge (the Oso Bridge Gap Closure Project. 

8. In mid August 2016, Rancho Mission Viejo began construction of Los Patrones Road including the on and off ramps to the Oso bridge. Rancho Mission Viejo also began the preparation for the Oso Bridge and Oso Bridge Gap Closer Projects by clearing brush, grading land and preparing waste water drainage in the area between the Los Patrones on and off ramps. The work being done was to create water drainage onto Parcel 82. This would not be a problem if Rancho Mission Viejo had owned Parcel 82, but they did not and had no right to encumber CUSDs' land.

9. On February 8, 2016 Attorney William J. White of Shute, Mihaly & Weinberger LLP representing the Save San Onofre Coalition wrote the Orange County Board of Supervisors a letter expressing his concern over the Oso Bridge Project:

stating at page 2:

"The Coalition is concerned that TCA is now using the Oso Bridge project as an attempt to circumvent the decision of the Water Boards by building a direct connection between the current 241 terminus and Los Patrones Parkway, a county arterial built in lieu of Tesoro. The bridge appears to have no purpose other than to create a direct connection that would allow the Parkway to effectively serve as an extension of the 241 tollroad - in other words, to become the equivalent of the Tesoro Extension. Thus, as with Tesoro, the Oso Bridge project may not be approved until TCA has identified the full scope of the 241 extension project and has conducted a full environmental review of that project as CEQA requires."

10. The documentation provided in Mr. White's letter clearly shows that the change in alignment of the Toll Road to F Street/Las Patrones required Federal review under NEPA. CalTRANS, not the County of Orange should be the lead for the Oso Bridge Gap Closure Project. A new CEQA should have opened by CalTRANS in order for the the 241 Toll Road to continue past the Oso Bridge project. 

11. The Save San Onofre lawsuit was settled in November 2016. But CalTRANS, the TCA, the County of Orange, Rancho Mission Viejo continued to build the 241 Toll Road in pieces to avoid a proper CEQA, NEPA and a review by the California Coastal Commission. 

12. The water drainage for Los Patrones Parkway, The Oso Bridge and the Oso Bridge Gap Closure was specifically designed to TRESPASS water onto school district property. That trespass is continual and ongoing.

 

Opposition Point 4: There exists a Conflict: Los Patrones has always been marketed as a "FREE" private road to home buyers within Rancho Mission Viejo. Los Patrones is now being built to Toll Road specifications and is being paid for by TCA (Bond Holder money). 

1. The lawsuit settlement between the County and San Clemente designates Los Patrones as a FREE road.

2. If Los Patrones remains a FREE arterial road then the project has been mis-represented to TCA bond holders.

3. If Los Patrones becomes the Tesoro Extension of the 241 then the settlement is breached and the Ranch has mis-represented Los Patrones to its home buyers. 

 

Documentation

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

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

February 13, 2018 REQUEST FOR EMERGENCY INTERVENTION AND INJUNCTIVE RELIEF- Enforcement Division CARB and California State Water Resources

  

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.

San Diego Water Board 401 Water Quality Certification