Stop the Trucks: Ozena Loses Court Case on Trucking Hours
In a case titled "Elizabeth Ann Vergilio Vs. County of Ventura," the owners of the Ozena gravel mine challenged the County's right to impose hours of operation and transit through the Ojai Valley.
Judge Reiser ruled against Virgilio and Ozena. Even though Stop the Trucks was not a direct participant in this case, it is a huge victory for the Coalition. Much of the County's brief was based on our research and complaints.
The "Stop the Trucks" Coalition has not only been supporting the County's contention that the rules must hold, we've also insisted that the County also actually enforce those rules.
Currently Ozena is only allowed week day trips through the Ojai Valley from 6:00 am to 7:00 am and from 9:00 am to 3:00 pm.
A recent review of weigh tickets from a two month period last year by the Coalition showed that trucks from Ozena were possibly violating the schedule as much as 55% of all trips through the valley.
In defense of the County, government lawyers acknowledge that a number of Planning Division staffers had made a numerous errors in regards understanding and enforcing the C.U.P but "planners have no power to change the terms (of the C.U.P.) approved by the Planning Commission. " County lawyers further note, "staff's misapplication of the Condition passively allowing truck travel during prohibited times does not and cannot effectuate a change to the Condition approved and adopted by the Commission."
County Counsel went on to argue that "…to the contrary, Planning staff has a ministerial duty to apply and enforce all Truck Travel conditions as they are approved by the Planning Commission." And, "the 'clear and present duty' of the County Planning Division is its ongoing ministerial duty to apply and enforce the Condition as written and approved by the Planning Commission and re-adopted in Mod 1.
Lawyers for the County made such a good case in noting both the apparent violations of the C.U.P. by Ozena and of the failure of the Planning Division to enforce the guidelines that Judge Reiser, in a footnote, went so far as to state that, "The initial permit allows for a five-year extension if the Planning Director, assuming, 'all conditions have been continuously complied with' by petitioners, authorizes such continued use. Since the County has already found permit violations; it might well be an abuse of discretion for the Planning Director to authorize such an extension."
Members of the "Stop the Trucks" Coalition will be meeting with County executives in early January to discuss this ruling and numerous other issues related to the operation of the Ozena gravel mine.
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Comments (4)
Along with the snow, the recession,and our hidden cameras, the following sequence of complaints has led to a temporary but significant decrease in truck traffic coming over Route 33 from Ozena and through the Ojai Valley:
----- Original Message -----
From: Kim Rodriguez
To: Howard Smith
Cc: michael shapiro
Sent: Friday, December 12, 2008 1:52 PM
Subject: Re: Stop the Trucks: Complaint Follow Up
I will review the issue of the Bob Walker complaint with staff on Monday to see what the outcome was. That being said, all complaints require follow up with the complaining party so please accept my apologizes if that did not occur.
Carol was at the site yesterday collecting the tickets. I'll will ask that she keep you informed of her findings.
Have a great weekend Howard~
Kim
>>> "Howard Smith" 12/11/2008 5:07 PM >>>
Dear Kim Rodriguez,
This was perhaps the first morning in many months that none of our Coalition truck spotters were awakened by the sound of gravel trucks at 4:30 am. Perhaps your investigations are beginning to have an impact. Thank you...
And thank you for you note - copied below - in which you inform us that Carole Aragon, the SMARA Coordinator, will be investigating our six (6) recent complaints. (also below)
I do not know if you are aware of it or not, but while you were on leave last February and Mr. Richards was overseeing Ms. Aragon, a complaint was filed about Ozena by an affiliate of the Coalition, Bob Walker. This complaint was never fully investigated or responded to in any form. A copy of that complaint is below at the very bottom of this email.
According to documents that the "Stop the Trucks" Coalition obtained through our August 2008 Public Records Request, Ms. Aragon began her investigation but never completed it. To date, no one has ever responded to Mr. Walker about the issues he's raised. (And this isn't the first time a complaint from Mr. Walker regarding Ozena has gone unanswered and perhaps un-investigated.) Further, even though Ms. Aragon, in a letter to John Hecht, Ozena's agent, refers to a number of weigh tickets that she is reviewing, none of those weigh tickets were turned over to the Coalition in the course of our Public Records Request.
Given these two issues, failure to fully investigate and failure to turn over documents under the Public Records Act, and Mr. Richards own record in regards Ozena, I hope you can understand our concern that our complaints are not only taken seriously but are adjudicated fully and properly.
As weigh tickets are the only CEQA tool the Planning Division currently has to ascertain compliance with the C.U.P., we trust you will take the necessary administrative steps to rectify these oversights.
With sincere thanks,
Howard Smith, Vice Chair
Stop the Trucks
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Re: Thanks & More Complaints (5) & (6) about Ozena, December 10,2008
From: Kim Rodriguez
To: Howard Smith
cc: Carole Aragon
I received your complaint. Ms Aragon from our office reviews these complaints. I see that you forwarded this to her also so she will be getting back with you. Please call me directly if you have any questions on the process~
Kim
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Thanks & More Complaints (#5) & (#6) about Ozena, December 10, 2008
From: "Howard Smith" 12/10/2008 3:45 PM >>
Dear Kim Rodriguez,
Thank you for your response to our prior complaints. Unfortunately we have two more to add.
#5: This morning at about 4:40 am a double hopper truck apparently passed by the hospital & high school heading north toward Ozena well before allowable hours. Later that same morning what appeared to be the same vehicle, a light blue truck from Swader heading south left the restricted zone near Casitas Springs at about 7:10 am.
This afternoon, at precisely 3:24pm two more double hopper, both white in color, came south from Ozena and again passed by the high school and hospital. If correct, all of these would have be potential violations.
#6: Two independent sources familiar with the gravel industry have reported that the alleged new operator, Alliance had possibly moved and expanded the processing plant; had expanded the size and location of the pit; and were allegedly washing and processing old concrete. If true, all would be potential C.U.P. violations.
Further, at an October Ojai City Council meeting, the lawyer for Tony Virgilio and Ozena presented the City with a weigh ticket purportedly from October 8th, two months after the Virgilio family had allegedly leased the operation to Alliance.
That Virgilio had weigh tickets in his possession for that date leads us to wonder if in fact the Virgilo Family has both leased the operation to Alliance while continuing to fill orders separately as some means to appear to be in compliance while not actually being so. In other words, is he double dipping?
We appreciate your efforts in investigating these matters.
Sincerely,
Howard Smith, Vice Chair
"Stop the Trucks"
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Complaint (#4) on Gravel Trucks Violating the C.U.P. on Tuesday, December 9, 2008
Dear Kim Rodriguez & Chris Stephens,
On Tuesday, December 9, 2008, between 8:22 am and 8:25 am we spotted three double hopper gravel trucks apparently violating the Ozena C.U.P. by heading north on Route 33 in the Ojai Valley restricted zone.
That same afternoon we spotted three more double hopper trucks, two of which were from Swader, apparently violating the C.U.P. by traveling south bound through the Ojai restricted zone between 3:21 pm and 3:50 pm, which would, once again, put them right in front of Nordhoff High School as students are leaving for the day.
Your department's attention to this urgent matter is greatly appreciated.
Sincerely,
Howard Smith
---------------------------------------------------------
----- Original Message -----
From: Kim Rodriguez
To: Howard Smith
Cc: Carole Aragon ; Chris Stephens ; Patrick Richards
Sent: Wednesday, December 10, 2008 8:40 AM
Subject: Re: Another Complaint (#3) on Gravel Trucks Violating the C.U.P. on Monday, December 8, 2008
Good Morning Mr. Smith -
We have received your complaint and will follow up. We will keep you posted on our findings.
Kim Rodriguez, AICP
Planning Director
County of Ventura
805.654.2481
kim.rodriguez@ventura.org
--------------------------------------------------------
Complaint (#3) on Gravel Trucks Violating the C.U.P. on Monday, December 8, 2008
----- Original Message -----
From: Howard Smith
To: Kim Rodriguez ; chris.stephens@ventura.org ;
Sent: Monday, December 08, 2008 4:18 PM
Subject: Another Complaint (#3) on Gravel Trucks Violating the C.U.P. on Monday, December 8, 2008
Monday, December 8, 2008
Dear Kim Rodriguez & Chris Stephens,
On Monday, December 8, 2008 I spotted two more Swader double hopper gravel trucks apparently violating the C.U.P. by traveling south bound through the Ojai restricted zone at 3:33 pm and at 3:38 pm, which would again put them right in front of Nordhoff High School as students are leaving for the day.
Your department's attention to this urgent matter is greatly appreciated.
Sincerely,
Howard Smith
-----------------------------------------------------------
Complaint (#2) on Gravel Trucks Violating the C.U.P. on Wednesday, December 3, 2008
From: Smith, Howard
Sent: Wednesday, December 03, 2008 8:37 AM
Subject: More Gravel Truck C.U.P. Violations on December 3, 2008
Dear Kim Rodriguez & Chris Stephens,
Thank you for your response to our earlier complaint. We appreciate your quick action.
Please add this to our prior complaint about C.U.P. Violations in conjunction with gravel tucking and the Ozena mine operation.
Today, December 3, 2008, a double hopper truck went north up Maricopa Highway (Route 33) past the high school and hospital towards Ozena at 4:40 am, well before the 6:00 am to 7:00 am allowable access through the Ojai Valley.
At 7:10 am another double hopper, this one from Swader trucking (apparently one of the most regular possible violators) also went past the high school heading north as students were arriving.
At 7:18 am, a third double hopper - possible another one from Swader - also headed north.
About ten minutes later, at 7:30 am, a fourth truck was spotted doing the same. The last two trucks were the same color as the Swader trucks but their logos were hard to identify at the speed they were traveling.
It is almost one year since you informed the operators of the Ozena Valley Ranch and Gravel Mine in writing that they must comply with the hours of the existing C.U.P.
When I met with Matt Carroll in July of 2008, I noted that violations of the time schedule were still occurring on essentially a daily basis. Many of us have not only witnessed these violations but have filmed some as well.
These apparent ongoing violations were confirmed recently by the spouse of a former Planning Department employee who during a four day stay at the Ojai Valley Community Hospital, was repeatedly awoken as early as 4:00 am each day by gravel trucks accelerating as they headed north out of the traffic light at the"Y" and past the hospital and/or when coming south, braking at the same intersection.
Last month the lawyers for "Stop the Trucks" had reported to Ventura County Counsel that as of August 4, 2008 the Virgilio Family had apparently been leasing their mining operation to Alliance, a gravel and trucking firm from up north. In our last public records request there was no indication that Alliance had agreed in writing as required by the C.U.P. to obey all conditions of the permit.
Wouldn't it make sense given all that has transpired to require Ozena and Alliance to turn over all of their weigh tickets for the last 12 months to confirm compliance? And if not for the last 12 months, certainly as of August 4th? Doesn't this makes far more sense than doing it piecemeal?
Wouldn't you agree that given what we all suspect to be the actual truth, a review of those records could be the beginning of the end of this entire conflict? And that is something I am sure we could all happily agree upon.
Happy Holidays,
Howard J. Smith
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Complaint (#1) on Gravel Trucks Violating the C.U.P. on Friday, November 21st & Monday November 24th, 2008
November 24, 2008
To the Ventura County Planning Division and Resource Management Agency,
Please consider this email my formal complaint against the permit holder for the Ozena Valley Ranch and Gravel Mine for violating the C.U.P. restrictions on hours of trucking through the Ojai Valley.
On Friday morning, November 21st, I personally witnessed two double hopper gravel trucks heading north on Route 33 go through the "Y" intersection between 7:30am and 8:00am in direct violation of the C.U.P. limits on hours of travel through the valley.
At 7:15 am today, November 24th, I personally witnessed one double hopper gravel truck from Swader Trucking heading up Route 33 and past Nordhoff High School in possible and direct violation of the C.U.P. limits on hours of travel through the valley.
This afternoon I personally witnessed four different double hopper gravel trucks coming down Route 33 apparently from the Ozena Valley Ranch and Gravel Mine. The trucks all passed through the Ojai valley between 3:00pm and 3:30 pm, also in violation of the C.U.P.
We expect a full and complete investigation of this complaint.
Thank you,
Howard Smith, Vice Chair
Stop the Trucks
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Formal Ozena trucking complaint of February 8, 2008
Bob Walker
Ojai, CA. 93023
February 13, 2008
Carole Aragon
Patrick Richard, Acting Director
County of Ventura
Planning Division
800 South Victoria Ave.
Ventura, CA 93009
Dear Carole and Patrick:
I am sending you this formal complaint in response to seven trucks that I witnessed on February 8, 2008 violating Ozena Sand and Gravel Mine's hauling time restrictions.
At 8:40 A.M. two Southbound Swader trucks hauling 3/8" gravel passed in front of my house. That would put those trucks in the Ojai City limits during the restricted time. Also, I witnessed five Northbound, empty, Valley Bulk trucks in front of my house starting at 8:45 A.M. This would place the trucks passing through the Ojai Valley during the restricted times. The first Valley Bulk truck returned Southbound loaded with washed concrete sand at 11:03 A.M.and the second truck at 11:06 A.M.
The roads had been closed due to the recent snows. As soon as they were open, the trucks went right back to their old habits.
Sincerely, Bob Walker.
Comment #1 Posted by: hjs | December 18, 2008 03:04 PM
Dear Kim Rodriguez and Carol Aragon,
#7) It appears that the enforcement work of the prior weeks with Ozena has been to little avail. This morning, December 18, 2008, and only hours after Route 33 was cleared of snow and re-opened to traffic, a dark blue, double hopper truck from Pride Trucking passed by Nordhoff High School just as students were arriving heading north at 7:37 am, in apparent violation of the allowed hours of travel through the Ojai Valley.
#8) The Stop the Trucks Coalition has recently learned that three environmental firms (URS; Lilburn; & Envicom) have responded to an apparent RFP prepared by the department last July according to your own billing records.
The Planning Division failed to included these documents in our Public Records Request of August, a clear violation in and of itself.
Next, the RFP was prepared prior to the public scoping process. Normally under CEQA, the public scoping to determine what should be in the RFP occurs BEFORE an agency sends out an RFP.
We have also learned from our last Public Records Request that the three firms (URS; Lilburn; & Envicom) that responded to the RFP were not only either recommended by the agent for the applicant, John Hecht, but have also had significant contact with the applicant that was in fact encouraged by your staffer, Pat Richards -- another clear violation.
Finally, URS had already responded to an "sole source" RFP on Ozena last spring, which was rejected by Mr. Hecht as being too expensive. Hecht wanted competitive bidding to lower the price of the RFP while also adding in a second proposal for Aqua-culture for one price.
That the applicant gets to determine the size and scope of an EIR review based on cost instead of what is necessary and appropriate runs contrary to CEQA guidelines.
Documentation of all of this is openly available in your own files.
#9) After a nearly 2-1/2 year delay, Mr. Richards finally responded to a letter from the Ojai Valley MAC regarding several key issues related to the Ozena proposals. The MAC had expressed serious concerns regarding Ozena, including ground water standards; seismic damage to the roads, especially Route 33; and the concepts of average daily trips and maximum daily trips. Although in his response Mr. Richards assures the MAC that all of these concerns have been taken care of, he in fact ignores the actual reality.
Application, for instance of the Ventura County Ground Water Standards could in itself cause the termination of the Ozena mine. The low cost bid for the RFP further ignores the fact that Highway 33 DID collapse this year and that no seismic review is indicated in the RFP's nor are their sufficient funds being set aside in the bidding process to even begin to accomplish this task.
Furthermore, the concept of average daily trips and maximum daily trips also violates CEQA standards because the Planning Division has absolutely no means to measure either of these numbers nor any ability to determine what the "baseline" is for CEQA impacts. The only possible tool the Division might have is weigh tickets, which it has assiduously avoided obtaining for the first nine months of the year.
All of these actions are highly inappropriate and only add to the list of "theater of the absurd" practices that Mr. Richards and the Planning Division have engaged in over the eight years of the Ozena C.U.P.
These are among the many, many issues the Coalition will be bringing to the attention of County executives and County Counsel when we meet in early January.
Is it too much to ask that you clean them up by then?
Sincerely,
Stop the Trucks
Comment #2 Posted by: Complaints #7; #8; & #9 | December 20, 2008 11:14 AM
Get real. Instead of whining about the real world, take action. Let's face it, you live in Ojai to insulate yourself against the real outside world because you don't want to live in it but when it encroaches on your small insulated world you b*tch and moan-like the leaf blowers and trucks. Get real-you sit there and go on about helping the whole world but you don't do anything active to help it. Only "safe" things like b*tching and moaning and maybe a field trip to demonstrate in Westwood or going on about the rain forests and world peace. Get out and LIVE REAL LIFE and then post. Or get a life.
Comment #3 Posted by: tatiana | January 10, 2009 05:24 AM
tatiana, I've been away from the OP for a while so I'm not sure if you make these comments often, but if you lived in Ojai, you would know how absurdly ironic your last two comments are. Howard and evan are two of the most active and socially responsible residents of the Ojai Valley (and there just may be more per capita in this valley than most places I have ever lived). Do you even know anything about them???
Maybe they are not the ones who need to "get a life".
Comment #4 Posted by: LTOR | January 10, 2009 06:09 AM