The Ojai Post

The Ventura County Planning Division must meet all of the conditions as follows:

(a) All complaints received by the County shall be directed to the permittee’s contact person established pursuant to Condition No. 12. Contact Person.

(e) If the problem persists, the County Planning Division shall initiate complaint resolution actions as contained in the Ventura County Zoning Ordinance then in effect.

#1: As a result of evidence presented during the recent "Virgilio Vs Ventura County" we resubmitted our complaint of July 2008, regarding massive violations of Condition 72 during the months of July and August 2007.

In "Virgilio vs. County of Ventura" county lawyers acknowledged that a number of Planning Division staffers had made 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 noted, "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 were approved by the Planning Commission." "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 apparently made such a good case in noting both the apparent violations of the C.U.P. by Ozena and 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 for the Planning Director to authorize such an extension."

In a letter to John Hecht, the agent for Ozena, in December of 2007, the Planning Director made an arbitrary decision that Ozena would not be responsible for “past” violations.

It makes as much sense for the Planning Director to dismiss possible “past violations” as it would for the District Attorney to dismiss murder charges as the murder happened in the past.

How can the public and the Coalition consider the Planning Director’s decision to not consider past violations anything but a possible abuse of her discretion?

Furthermore, given the extremely high percentages of daily violations of the permit schedule that were found in a two month sampling of data from 2007 by both the County's Deputy CEO and the Coalition, how was the agency was able to determine that the mine operators had been in continuous compliance? The Coalition's review alone noted that possibly 40% of all trips and 55% of trips through Ojai were in violation.

Were there an appropriate, timely and proper investigation of the alleged violations, it can easily be argued that the extension for Ozena would have already been terminated.

# 2: The Coalition has made and repeatedly referenced several public records requests for all weigh tickets from Ozena. We have reported unconfirmed allegations that weigh tickets may or may not have been falsified or written up by hand. To date, the Planning Division has failed to turn over any of these weigh tickets, which, in and of itself could be considered a clear a violation of state law and public policy.

Furthermore, the Planning Division has failed to respond according to the guidelines established in Section 13, including, but not limited to those of timeliness.

Because of that failure to respond under Section 13 and because of the total failure of the Planning Division to provide any physical evidence whatsoever supporting the Planning Director's claim on page two, paragraph three of her January 14, 2009 letter to the “Stop the Trucks” Coalition, we resubmitted all of the complaints From Stop the Trucks from February 8, 2008 through January 6, 2009 and supported them with further information or clarifications when available.

Given this history, there is simply no way any intelligent citizen of Ventura County could credibly accept any analysis of records by the Planning Division without the very physical evidence the Division appears to be adamant about withholding from public scrutiny.

In her letter of January 14th, the Planning Director wrote, “It cannot be concluded that if a truck is observed in Ojai then it traveled to or from the Ozena mine.” In other words, short of a competent analysis of weigh tickets, the Planning Division has absolutely no ability to monitor C.U.P. compliance. Such monitoring is a fundamental requirement of CEQA, with out which no permit should be granted, much less extended.

#3: In the Planning Director's letter of January 14, 2009 to the Stop the Trucks Coalition, the Director alleges a new interpretation of Condition #72 that is unsupported by any evidence whatsoever.

Her interpretation not only contradicts wording used in every single Planning Division letter and communication to County officials and the Board of Supervisors, including the 2003 C.U.P. modification approval letter, it may also well be looked upon as another possible abuse of discretion.

The phrase in the “Day and Hours of Operation” Chart in Condition 72 reads as follows: “All project related travel on Highway 33 between Casitas Spring and City of Ojai.” The Planning Director believes the word “between” allows her to exclude both Casitas Springs and the City of Ojai from the restricted zone. The Planning Director created a new map on November 17, 2008 – eight years after the Planning Commission approved the C.U.P. - indicating her determination of the restricted zone along Route 33 in the Ojai Valley.

Such an interpretation would mean for example that “consensual sex between two adults” did not involve either party, only the space “between them.” Or that the American Civil War, “The War between the States,” did not actually involve any states, just the people standing on the Mason-Dixon Line. Or that a Conditional Use Permit “between” the County of Ventura and the Ozena Valley Ranch does not actually bind either party, just the space “between” them.

Perhaps such an absurdist’s proposition could be argued over endlessly by lawyers, but again, we repeat the words of county counsel: "…planners have no power to change the terms (of the C.U.P.) approved by the Planning Commission." and "…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.

If this bizarre action on the part of the Planning Director to modify and constrain the restricted zone does not constitute an abuse of her discretion, what does?

#4: In the same January letter the Planning Director wrote: “Some weigh tickets indicated that trucks did leave Ozena mine at times of day that would indicate a potential violation; however those tickets indicate the trucks had an Ojai destination which would not have resulted in a violation of Condition No. 72.”

The C.U.P. makes no exemption for local delivery. The condition reads: “All project related travel on Highway 33 between Casitas Springs and City of Ojai.”

Again, in the words of County Counsel, "…planners have no power to change the terms (of the C.U.P.) approved by the Planning Commission." The Planning Director's reveals not only another possible lapse of judgment but a further abuse of her powers.

#5: On 12/31/08, "Stop the Trucks," informed the County that we had already filed three Public Record Requests (PPR's) for all the weigh tickets from Ozena in order to confirm potential violations or to clear the mine of those allegations.

These weigh tickets are also critical to establish base lines for any environmental impact review and to determine average daily and maximum daily trips. Without that information there is no way a reasonable EIR review can even be undertaken. We have received nothing to date.

#6: On 12/19/08 "Stop the Trucks," informed the County that we recently learned that three environmental firms (URS; Lilburn; & Envicom) have responded to an apparent "Request for Proposal" (RFP) prepared by the department last July.

First, the Planning Division failed to include these documents in our Public Records Request of August, a clear violation in and of itself.

Secondly, the RFP was prepared prior to the public scoping process. Normally under the California Environmental Quality Act (CEQA), the public scoping to determine what should be in the RFP occurs BEFORE an agency sends out an RFP.

Third, and perhaps most critically, we have also learned from our last Public Records Request that the three firms (URS; Lilburn; & Envicom) which responded to the RFP were not only either recommended by the agent for the applicant, John Hecht, (aka West Coast Environmental & Engineering) but may have also had significant contact with the applicant that was in fact encouraged by Pat Richards.

Fourth, URS had already responded to a "sole source" RFP on Ozena last spring, which was rejected by Mr. Hecht as being too expensive. Mr. 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.

We have sent to County Counsel and County Deputy CEO, Matt Carroll, several recent documents from Fresno County that indicate that John Hecht, through his company West Coast Environmental & Engineering, and the Lilburn Corporation possibly worked side by side as co-consultants on a large project for Vulcan Materials. This project may still be ongoing.

There may or may not be anything inappropriate about Lilburn submitting a bid under these circumstances. As lay people this is not something we can judge.

Should we, however, think that in the public's perception of these matters, it might not appear to be a bit too cozy a relationship when companies that have worked together are then called upon to evaluate each other?

A further point... It is our understanding that URS, which apparently re-bid the Ozena C.U.P. work at a lower price after the sole source was rejected, was the same firm that Santa Barbara County used to evaluate Troesh's Diamond Rock proposals. The work for Troesh was done by West Coast Environmental & Engineering, supposedly putting them on opposite sides of this case.

However, during the entire six year course of the work on the Diamond Rock proposal, no one, for example, notified District Seven of Caltrans that a significant portion of the proposed truck traffic was to cross out of Santa Barbara County on Route 33 and come through the Los Padres Forest and Ojai. District Seven was stunned to learn of this project, which they did from us, especially since it was too late to have any impact on the proposals. (We have these emails, which are available to you as well.)

Nowhere in the Environmental Impact Report (EIR) work ups by West Coast or in the reviews by URS was any real consideration given to the impacts of this project on the Ojai Valley; on our air quality or air shed; on traffic impacts; or on impacts to the road bed of Route 33 through the Los Padres Forest which did eventually collapse; etc.

The Diamond Rock proposal was finally amended after a year of extensive legal battles with Stop the Trucks to essentially void traffic coming south into Ventura County.

Given these significant oversights - and despite URS' reputation as a world-wide environmental firm - wouldn't there be reason to question the validity of using this firm to evaluate a project where the parameters are nearly identical to the ones that they may have failed to notice in their prior review?

And what would an already skeptical Ojai populace or the citizens of Ventura County think if this were the type of firm chosen to once more review the work of West Coast Environmental and Engineering? How could we be assured that they'd catch every possible mistake and oversight?

And lastly, a question about Envicom: They have frequently worked for the City of San Buenaventura, where John Hecht, principal of West Coast Environmental & Engineering and the agent for Ozena, has been a long standing member of the Planning Commission. What assurances can the public be given to avoid even the perception that Envicom's possible work on the Ozena C.U.P. is not some sort of Quid Pro Quo?

#7: On 12/19/08 "Stop the Trucks," informed the County that after a nearly 2-1/2 year delay, Mr. Richards, head of the Industrial Sector of the Ventura County Planning Division, finally responded to a letter from the Ojai Valley Municipal Advisory Council (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 possibly 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 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 the Planning Division have engaged in over the eight years of the Ozena C.U.P.

#8: On 12/10/08 "Stop the Trucks," informed the County that 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.

#9: On 12/3/08 "Stop the Trucks," informed the County that it was almost one year since the Planning Director 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.

Last month the lawyers for "Stop the Trucks" 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.

#10: On February 13, 2008, "Stop the Trucks," and Bob Walker of Ojai filed a complaint about gravel trucking incidents on February 8, 2008, that no one in the Planning Division ever responded to, despite the fact that Ms. Carole Aragon did launch an investigation.

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. 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 the Planning Division's own record in regards Ozena, we hope the County understand sour concern that our complaints are not only taken seriously but are adjudicated fully and properly.

#11: On April 8, 2008, "Stop the Trucks," representatives made a presentation before the Board of Supervisors on the failure of the Planning Division to have adequate reasonable and feasible mentoring of truck traffic coming out of the Ozena mine. The Board of Supervisors instructed the Planning Division to come up with reasonable monitor measures. To this date however, the Division has apparently done nothing to insure compliance.