MemorandumCounty of Ventura . Resource Management Agency' Plenning Division8()O S, Victoria Avenue, Ventura, CA 93009-1740' (805) 654-2478'ventura.org/rnt

DATE: September 4,2012SUBJECT: Additional Comments for Minor Modification No. LU09-0158 (Modification of

Conditional Use Permit No. 4577); Located at 1000 S. Ventu Park Road, in theVentura County Unincorporated are of Thousand Oaks on various AssessorParcel Numbers

Please be advised that the following information has been submitted to be included asan exhibit to the Planning Director Staff Report of September 5,2012 (Exhibit 7).

Planning staff received three letters regarding the proposed project. These letters wereinadvertently omitted from the staff report that was posted on the Planning Divisionwebsite prior to the September 5, 2012 Planning Director Hearing. Below is a list of theletters that were received.

lf you have any questions please contact Kristina Roodsari at 654-2467 orkristi na. rood sari@ventura.org.

Letter from Robert Wallace and Janice Johnson, dated September 3,2012

Letter from Robert McMurry, of Counsel to Gilchrist and Rutter Law Firm, datedAugust 22,2012

Letter from Melissa Barron, dated August 22,2012!

Robert Wallace & Janice Johnston582 5, Ventu Park Road

Newbury Park, CA 91320

September 3.2012

Ms. Kristina RoodsarÌCase PlannerCountv of VenturaRMA-Planning Division t #1740800 S. Victoria AvenueVentura, CA 93009,1740 , .j

RE; Case No. LU09-0L58

Dear Ms. Roodsari

We are the property owners and residents of 582 South Ventu Park Road and have lived herecontínuousfysince1985. OurpropertyislocatedontheprivatesegmentofsouthVentuparkRoad/Ventu Park Fire Road ("SVPR/VPFR"), which serves as the access road to the above referenced projectarea,

In the early years of our residency here, the pr¡väte segment of SVPR was unpaved, and access to thearea was unrestricted. Our roadwaywas afavorite destination for motorists of all types, day and night,many for the purpose of intoxicating themselves with drugs and alcohol. Confrontations withbelligerent motorists and groups of motorists were frequent here, especially on nights and weekends.Cleaninguptheaftermathoftheseactivities,i,e., disposingof emptybeer&liquorbottles,usedcondoms, and fastfood trash was â common chore for us a'nd the other early residents of this area,

Four new homes have been built along the private road during the time we have lived here and theRasnowfamily developed their business and instalfed a controlled gate just beyond our homes, As thenew homes were bgilt, the pavement on SvPR was extended to a poínt just beyond our home, Nearly allofthe early residents are now gone, so there are few who can offer an accurate record of the changes tothis neíghborhood over an extended time period.

There is no question that traffic along the private section of SVPR has signifícantly decreased over tirne,in spite of new residents who have moved into our neighborhood and the creation of the Rasnowbusiness' The blight of nuisance traffic ín our neighborhood has been virtually eliminated, largely due tothe Rasnow's aggressive enforcement of trespassing restrìctions and their construction of the electricgate on upper SVPR,

Ïhe dust along our dirt road has always been a part of the price we residents chose to pay to live ín thisneighborhood' lt existed when we purchased here and it exists today, but, in our experience, the dustproblemwasgreatlymitigatedbytheextensionofthepavedroadsurfaceintheearlylgg0,s. ltisour

understanding thät mäintenance of our prívâte road is the responsibìliiy of all of us who use it and wefeet it should not bè used as leverage äga¡nst the interests of anyone of us.

ln the fíre of October 1993, ianice was an eyewitness to the fire's approach from the southeast. lt wasthe Rasnow's flre cle¿ring efforts that ultimately turned the advancing flarnes away from ourneighborhood.fnrecentyears, theRasnowshaveincreasedthebrushclearedarea along theirrÍdgelíne, improving our neighborhood's defenses from fire coming from that direction. Their weed andbrush abatement progråm utilizes grazing animals rather than power tools în an effort to reduce airpollution and greenhouse gãses.

The Rasnow famíly have been excellent stewards of the property they own for many years, We are notawere of any legitímate negative Ìmpacts to anyone ín our neighborhood resufting from the businessthey operate. Cl¿ims of concerns of greenhouse gas emissions in connection with this business are sounreasonable that they would seemingly call into question the motives of those who make them.

Respectfully,

W/u,¿t** M-.-7/s/tz/Janîce John"ston./nobert Wal[ace

vv|LSHIRE PALISAOEA BUILDINOl20e ocEAN AVENUE, AUIÎE eOO

aANTA MONtcA, CALIFORNIA eoao'r-1qX)

Ms. Kristina Roodsa¡i, M.M.P,A., PlannerVentura County Planning Division800 S. Victoria Ave.Ventura" CA 93009

LAwoFFtcÊsGILCIIRIS|Ddz RIITITER

PROTEI'SIONAT, OORPORA1TION

August 22,2012

IELEPHONE (3lO) 3eMdloFAOS|MTLE (3rO) 3ea{7OO

E+IAIL:

I Ji;i,! ;ì1r t¡j t¡.- l_ . t ¡-

Re:(CaseNo. LU09-0158)

Dear Ms. Roodsari:

'We represent l\¿ts. Melissa Baron, who owns the property located at 566 South VentuPa¡k Road. Ms, Baron's property is located on the private segment of South Ventu Pa¡kRoad/Ventu Park Fire Road ("Private Road"), which seryes as the access road for the cell towerscurrently installed on Rasnow Peak. On behalf of Ms. Baror¡ we wriæ to express her oppositionto the above-referenced proposed Minor Modification of Conditional Use Permit No. 4577("Project"), submitted by applicants Harmon and Eleanor Rasnow ("Applicants"), and commentson the above-referenced Negative Declaration prepared by the County of Ve,lrtura ("County").

Ms. Baron's additional comments a¡e included in her August 22,2012 comment letter$rith attaohed exhibits ("Baron Lett€ru), submiüed conctrrently with this letter. Due ûo thenumber of exhibíts attached to the Baron l,ette\ rve are sending only the Baron Letter and theindex of the exhibits attachedto the Ba¡on l,ettsr via ernail. A full copy of this letter, the BaronLetter and the exhibíts to the Baron Lelter will b€ sent to you via Federal Express.

l. Timeliness of the Apolication

CUP 4577's two 1O-year terrns expired in June of 2010 (see Baron Letter, Ex. 8.2,Approval lætter for Approval Date of June 25,1990 ["CtfP Approval"], Planning DivisionConditions 2a and b), although there is some indication that the cr¡rrent term expired onDecember 31,2010 (see Baron Letter, F;x.7, Planning Director StaffReport andRecommendations for Hearing on January 25,2011 ["2011 StaffReport"], p. 3). A slightlydifferent application for a minor modification" with the same case number, was heard in Januaryof 2011, but a decision was not made at that time, ostensibly due to the submission of newinformation of substantial importance made on behalf of the Applicants (see March 4,2071 letterfrom Mr. Daniel Klemann, for the County, to Ms. Julie Bulla" Baron Letter, Ex. 19.l).

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GILCIIRISII! & RUITTEIRPROFEES¡IONAL CORPORAIFÍ ON

Ms. Kristina Roodsari, M.M.P.A., PlannerAugust 22,2012Page2

The staffreport prepared for the January 2011 hearing very carefully described thetimeline for the prior application (see 2011 StatrReporq pp. 4-6). Notably, by contrast, theNegative Declaration does not state when the current term of the CUP ends. Since this Project ismaterially different from the previous application, it appears that, rurder the terms of the CUPApproval @lanning Condition 2b), this Application is a new application and has been made toolate.

2, I4adequate hoject Descriptio+

The Project Description in the Negative Deolaration fails to describe what Projectactivities will result from the installation of the additional long-term new equipment listed atpage2, In particular, it cannot be daemnined from the desoription what environmental impaotswill be created by the future activities that will resulg directly or indirectly, due to the installationof this equipment. For example, if this equipment will, as is likely, enable the owner of theProject to increase its business, that increase in business will íncrease the number of tips on thePrivate Roa{ and, in furn, increase the traffrc, circulation, hazârds, air qualþ, greenhouse gasand noise impacts resulting from those trips. Having failed to include all of the Project's directand indirect activities within the Project Description, the Negative Declaration has failed todescribe the whole of the Project under CEQA (Pub. Res. Code $ 21065; Title 14, Cal. Code ofRegs $ 15378) and, concomiøntly, has failed to analyzn all of the Project's impacts. The amountof equipment to be added in the future provides substantial evidence supporting a fair argumentthat the Projeot could have a significant impact on the environment, including, withoutlimitation, on traffrc, afu qualþ emissions, greenhouse gas emissions and noise.

Additionally, no explanation is provided as to whether buildings A and G, referred tormder Visual impacts $ry.9-12), are new structures, although as described here they appear to benew. If they are new structutts, then this information, too, should have been included in theProject Description.

Moreover, the Applicants continue to advertise to increase the number of customers fortheir cell towers. It is reasonably foreseeable that, as a result of their advertising activities, thesize and scope of the Project will increase in the future, and these future activities must beamlyzrd no\il as part of the Project. As the California Supreme Court insfircted, "An EIR mustinclude an analysis of the future expansion or other action if: (l) it is a reasonably foreseeableconsequence of the initial project; and (2) the future expansion or action will be significant inthat it will likely change the scope or nature of the initial project or its environmental effects."(Laurel Heights Improvement Assn. of San Francisco, Inc. v, The Regents of the Universíty ofCalifornia (1988) 47 Ca1.3d376,396.) Here, the further expansion of the Project is readilyforeseeable given the expansion presently requested and the Applicants' ongoing advertising

greater and more adverse traffic, air quality, greenhouse gas and noise impacts.

LÂVv OFFICES

CIILCIIRIF|IIT d¿ RflItrIlERPRO[ETIEIONAL CÐRPOIIA'IION

Ms. Kristina Roodsari, M.M.P.A., PlannerAugust 22,2012Page 3

As a resulg the County is required to prepare an EIR that includes a complete hojectDescription and that analyzes all of the Project's potential impacts, and then circulate the EIR forpublic comment and otherwise comply wittr all of CEQA's zubstantive and procedural

requirements applicable to EIRs prior to considering the Project for approval.

The Negative Decla¡ation purports to address regional and localized air quality impacts

and the air quality impacts resulting from an emergency generator, although there is no evidence

that it in fact has donè so (it merely refers to, but does not attach "inforrration provided by theApplicants). Hou,ever, its discussion contains no supporting information based on which thep.rUti" can assess the acctracy of its conclusions. In fact, there is no indication whether these

õonclusions address the Project's constn¡ction activities, operational activities, or both. Instead,

the Negative Declaration states only that the Applicants provided inforrration, based on which ithas be.en concluded (p. 4) ttìat the Project would have no significant regional impacts: "airpollutant emissions will be below the 25 pounds per day threshold for reactive organiccompounds and oxides of nifrogen as described in the Ventr¡ra County Air QualityAssessmentGuiáeünes." Similarly, based on "information in the project application" (id.),the Negative

Declaration concludes that the Project will have less than significant local air quality impactswith the implementation of fugitive dust control regulations and the requirement to obtain an aír

distict permit to operate the emergency generator. These conclusory süatements do not containthe substantial evidence required to support them under CEQA.

Moreover, the Negative Declaration fails to contain material analyses critical to an

assessment of the Projectb impacts. A major sor¡roo of the Project's air quality emissions will becreated by Project-generated fafhc. However, as discussed above, the Negative Declarationcontaíns no analysis of the Project's traffrc impacts and, therefore, contains no data or

information based on which the air quality emissions from Project-generated traffrc oan be

estimated. There is no analysis of the number of fips that the Project's proposed new uses andequipment will create (see table at top of p.2) and certainly no analysis of the number of tripsthät ihe "anticipafed long-term future installation of other new equipment on Tower A" willcreatg. Even though the Negative Decla¡ation fails to include this analysis, it is patently clear

that the Project would create a number of new trips on the Private Road. Only a portion of that

road is paved; the majority of the Private Road is a dirt road.

The emissions from the vehicles making these trips are not the only air qualþ impactsthat the Project will create - these üips wilt also exacerbate existing adverse fugitive dustimpacts. Rs the attached Ba¡on Lettpr states, although the Applicants have acknowledged their

obiigations to maintain the Private Road under the mitigation measures imposed by the County

of Vintura in connection with the issuance of the original conditional use pennit in 1990, the

3.

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GI ILCHRISíIì & Rt.]ItrIfERPROT.¡fIS¡ONAL CORPORÁTTON

Ms. Kristina Roodsari, M.M.P.A., PlannerAugust 22,2012Page 4

Applicants' have failed to fulfill their obligations properly for the twenty-plus years since 1990.As a result, the Private Road is and has for years been poorly maintained, and taffic on the roadcreates a substantial a¡nount of fugitive dust in dry weather. A number of the residents areseverely affected by and suffer the ill effects of the dust. Additionally, the clouds of dust and thegravel and rocks that the traffic along the Private Road stirs up create a nuisanoe for the propertyowners.

Further, because the Applicants arc currently violating the existing mitigation measr¡resrequiring them to maintain the hivate Road, the Applicants' activities arc creating thesignificant impacts that the fugitive dust mitigation measr¡re recommended by the NegativeDeclaration is designed to address. The Applicants' failure to comply with existing mitígatíonmeasures constitutes substantial evidence that imposing a similar mitigation measure on theProject to reduce what the Negative Decla¡ation has concluded is apotentially significant impactin fact wlll not reduce the level of rhís tmpacl to a less lhøn sígníftcønt level. As such, there issubstantial evidence supporting a fair argument that the Project could have a significant airquality impact due to fugitive dust, requiring the preparation of an EIR.

Without the dat¿ supporting the Negative Declaration's impact conch¡sions, and without asuffrcient analysis of all of the Project's air quality impacts, the Negative Deolaration does notcontains subsøntial evidence supporting its conclusions that the Project's air qualþ impacts willbe less than significant.

The Negative Declaration's failu¡e to include these analyses is a material omission, as aresult of which the County of Ventura has failed to proceed in a manner required by law.Further, there is substantial evidence supporting a fair argument that the Project could have asignificant impact on the environment, including, without limitation, on haffìc, air quality andnoise. As a result, the County is required to prepare an EIR to analyzn the Project's potentialimpacts, circulate the EIR for public comment and otherwise comply !\'ith all of CEQA'ssubst¿ntive and procedural requirernents applicable to EIRs prior to considering the Project forapproval.

4.

The Negative Decla¡ation consludes that the installation of the 27 arûpnnae at a ñ¡tr¡¡edate on Tower A would not have any significant visual impacts, but offers absolutely noevidence, whatsoever, in support ofthis bald conclusion. There is no descripion of theappearance of these facilities, their height, their bullç the location on the cell tower at which theywill be affixed, or any other such descriptive information from which an impact determinationcould be

LAW OFFICEA

GILCIIRI$ITd, RUIEIIDRPROFEÊÊ¡ONAL CORFORÄTION

Ms. Kristina Roodsari, M.M.P.A., PlannerAugust 22,2012Page 5

Additionally, the Negative Decla¡ation reports (p. l1) that the Applicants intend to paintbuilding A and building G with a carnolflage desigr¡ since these buildings are visible frompublio iõcadons, and that the remaining buildings will continæ to be painted in earth tone colors.These assr¡rances arise from the determination in the 1988 EIR prepared for a proposed cell

communication facility (including 9 existing faoilities, only 4 of which were authorized at that

time, and the proposed 5 additional facilities) that the communication facilities would h¿ve a

significant adverse aesthetic effect on the environment, and its recommendation of six mitigation

-éas,yes that were ultimately adopted in 1990 (see Baron Letter Ex. 6.3, Áddendum # 2, FinalEnvi¡onmental Impaot Report for CUP 4ll,RasnowPeak Communications Facilþ[,'Addendum No. 2"¡ atpp. 4-6). However, the Negative Declaration purports to justiffàttmtnotng these previously adopted and still mandatory mitigation mear¡ures simply because

the existing facilities arc currenllypainted in earth tones and apparently new facilities will bepainted *ittt a camouflage design. There is ¿o evidenoe in the Negative Declaration justifringãliminating these mitigation measures, which also became conditions of approval fo¡ CUP 4577.

Without these mitigatiãn measures, and in particular mitigation measures 5 and 6, there is no

assurance that, simply because these facilities will be painted in e¿¡h tones or in a camouflagedesign now, they wili be maintained as such in the futu¡e. Therefore, there is za substantialevide,nce supporting the Negative Declaration's conclusion (at p. I l) that

',maintaining the buildings in such a manner would avoid the creation of the

additional visual impact than what [sic] was previously identifie.d in the EIR and

Addendr¡m prepared for cuP case No. 44112 and cuP case No. 4577.Therefore, ttre mitigation measures that were adopted under the previous EIR and

Addendum are no longer required to be implemented.u

Moreover, given the lack of analysis of the additional facilities planned in the fufire, thepotential exists that the significant vizual impacts identified in the 1988 EIR \ilill b€ intensified,

þarticularly if the previously adopæd mitigation measures are eliminated.

For these rearnns, there is substantial evidence supporting a fair argument that the Projectcould have a significant visual impact and, as such, an EIR must be prepared. The County must

prepare an EIR to analyzn that impac! along with the Project's other potential impacts, ciroulatethe EIR for public comment and otherwise comply with all of CEQA's substantive andprocedural requirements applicable to EIRs prior to considering the Project for approval.

5.Circulation and Fire Hazards

The Negative Decla¡ation contains za analysis of the hafnio and taffic-related impacts ofthe Projec! despite the fact that these are the most severe of the Project's impacts and those thatpotentially could adversely af,tect not only the environmenÇ but also the very saÍety of theresidenß along lhe Prtvate Road. There is no existing setting infonnation regarding the number

LAW OFFICËS

GIIJCIIRISIId! RTJITTERPROFEAÁIIONAL OORPORÀIIION

Ms. Kristina Roodsari, M.M.P.A., PlannerAugust 22,2012Page ó

of trips on the Private Road or the public roads, no description of the Private Road, its geometry,or its condition, and whether it cunently meets Fire DeparEnent requirements. Also lacking isany projection of the number of nips that the Project will ge,nerate, including future trips due tothe future installation of the additional facilities so vaguely described, or of the Project'scumulative taffic and access impacts. Without this information and these analyses, the NegativeDeclaration cannot ¡eøch any lmpact conclusions, whaßoeven

Moreovetr, the Negative Declaration fails to acknowledge the fact that the Applicantscontinue to advertise for new customers for their communícations facilities (seehtþ ://www.rasnowpeak.conr/rasnowpeaVU4EA_Ranch_Enterprises.htnl) ; should theApplicants obtain new customers, the taffïc on the Private Road will further increase, which isanother fact that is not taken into consideration in the Negative Declaration's impact analysis.

The Negative Decla¡ation's failure to include the baseline information and these analysesare material omissions, as a result of which the County of Ventura has failed to proceed in amanner required by law.

Rather than containing analyses of the fraffrc and oirculation impacts that the Project'sproposed new facilities will cÍeale,the Negative Declaration instead íncludes an inaccurate andmisleading recitation of the 1988 EIR's conclusions in an improper atûempt to justiff elímínøtingthe mitigation measures that were adopted in 1990, including, without limitation, the Applicants'responsibility to maintain the Private Road in accordance with the Fire Department's PrivateRoad Guidelines, as lhe Applìcanß' sole responslbllþ (with the right to assess their lesseesshould they choose to do so). (Addendum No. 2 at pp.6-7.) The only "evidence" supporting thisproposed elimination are purported unauthenticated "trip logs" provided by the Applicants forthe years 2009,20L0 and 2011, ostensibly reporting trips through their private gate at thetermination of the Private Road. Clearly, at best these logs contain only existing tips, withoutprojected Projecl tríps and, withottl cumulalive lrips onthe Private Road.

Although the Negative Decla¡ation acknowledges @.22) that the 1988 EIRrecommended mitigation measules that were ultimately adopted in order to reduce significanttraffic impacts and emergency service personnel access impacts, the Negative Decla¡ation doesnot accurately describe how those impacts arose. Contary to the Negative Decla¡ation'sassertior¡ the 1988 EIR and Addendum No. 2 determined that the cell communications facilitywould have significant oumulative traffic impacts on the Private Road (1988 EIR at pp. 44-46;Addendum No. 2 at p. 6), not on the public roads as the Negative Decla¡ation states (at p,23).As such, the Applicants' trip logs, whìch are not authenticated, of trips through the gate at theentance to the Project site that a¡e offered to indicate the lessening of the burden of trips on theloealpublic roads do not support eliminating these mitigation measures, which were adopted to

authenticaæd (which they have not been), trip logs including only the Applicants' customers'

LAWOFFICES

GILCHRIF¡{I d, RUIIIIDRPROBtrSÊI¡ONAL OORPORAITION

Ms. Kristina Roodsari, M.M.P.A., PlannerAugust 22,2012PageT

actual trips during 2009,2010 and 201I would not provide any indication of the proie'ct Proiect-relaled or cumulative wíúh Proiect trips on the Private Road.

As the Baron Letter states, the Private Road is shared not only by the Applicants and their

business interests and customers, but also by nine additional homes and an undetermined number

of undeveloped lot olvneñ¡. Assuming just these nine homes generate six trips per weekday,which is a lõw assumption, adds a total of 54 trips $er weekday, or270 trips per five-day workweek. The 1988 Final EIR's concem with cumulative impacts on the Private Road, speeding cars

and the Private Road's unimproved condition remain serious concens today' as the Baron Letter

states.

Because the Negative Declaration fails to inoluile any disoussion of the existing setting, italso fails to describe the current condition of the Private Road. As demonstated by the Baron

Lette4the Private Road is generally in a deterioraæd condition during most of the year due to the

Applicants' failure to maintain the Private Road, in violation of previouslf imngsed mitigationnleasures. In fact, the condition of the Private Road is generally so deteriorated that the Ventura

County Fire Deparfinent notified various residents along the Private Road that, due to the

condition of the-Private Road, the Fire Depoilment couQ not gu.ørantee that they would protect

or delend them or their properties in the event of aJire,' even though, as the NegalíveDecùrafion acknowledges (p. 17), the Project is located ìn a hightire hazt¡d arca. Given thefact that the Fire Department has refi¡sed to guarantee service to the residents and properties

along the Private Roa{ it is inconceivable that the Negative Decla¡ation can conclude Gp,24'ZS) thøtthe Project will not adversely impact fire access, or that mitigationaddressed to theaeiign of new private roads and the maintenance of on-site private roads will eru¡r¡re ttrat theProject will not adversely impaot taptioal aßoess.

Consequently, it is clear that, even wilh the mítlgation m¿a:Íutes ln place, the Applicantshave failed to fulfill their obligation to maintain the Private Road to Fire Departnent PrivateRoad standards, and the County has failed to fulfill its legal obligation to monitor the Applicanls'compliance with the adopted taffic mitigation measures, and lhat thesefaílures have c¡ealedsøßty hazørds that are jeopørdízing the salety of the residenß llvíng along the Prívale Road,øs nbU as causing them gteat lnconvenlence. To remove these mitigation measures no\4r wouldsimply ensure that the current significant impacts on the Private Road and on the safety of the

residents and their properties due to the condition and confrguration of the Private Road wouldbe furtt¡er exacerbated.

For all of these reasons, there is substantial evidence supporting a fair argument that theProject could have a significant impact on the environmelrt including, without limitation, on

¡ lronically, despite the fact that the Fire Departnent will not guarantee to prot€ct or defend the residenb or theirproperties along the Private Road, both the Fire Departnent and Sheriff have and/or are placing facilíties in theProject.

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GILCI{RIS|II & RUITÏTDRPROTTESAIONÁ,I, CORFOR]{TION

Ms. Kristina Roodsmi, M.M.P.A., PlannerAugust 22,2012Page 8

naffic, circulation and fïre hazards. Further, therc ís absoløely no justìfrcalbnfor illegallyelíminating mitígatíon mcusures requÞûng the Applícanß to ¡naíntaín the Prívat¿ Road Ûn asøte condilíon, æceptable to the Fíre Depaúment so lhat il wtll resume prctecling theresidenß ønd theír properlics. CEQA mandates that the County prepa¡e an EIR that fullyanalyzes the Project's potential taffic, circulation and haza¡ds impacts, oiroulate the EIR forpublio comment and otherwise comply with all of CEQA's substantive and proceduralrequirements applicable to EIRs prior to considering the Project for approval.

6Impacts

The Negative Declaration does not even purport to include a proper analysis of theProject's noise impacts, as it entirely ignores the most adverse Project -related noise: noisearising from Project-generated fraffic. Instea{ the Negative Decla¡ation contains only ananalysis of the noise that would be generated by the emergency generators on site.

As discussed immediately above, the Project will generate additional traffic on thePrivate Road. However, in violation of CEQA, the number of tips and the impacts of those tipshave not been analyzed. Consequently, the Negative Declaration contains no information basedon which the noise impacts of incremental trips generated by the Project can be assessed. TheNegative Declaration's failure to include this analysis is also a material omission, as a result ofwhich the County of Ventura has failed to proceed in a manner required by law.

For this rea¡¡on, as well, the County must prepare an EIR that frrlly analyzns the Project'spotential noise impacts, circulate the EIR for public comment and otherwise comply with all ofCEQA's substantive and procedural requirements applicable to EIRs prior to considering theProject for approval.

7Greenhouse Gas Emission Impacts

The Negative Declaration does not contain a prcper greenhouse gas ("GHG") emissionimpacts analysis and, for these reasons, as well, violates CEQA.

The GHG discussion does not even purport to contain an analysis of the Project's GHGemissions, but instead relies on the Negative Deolaration's essentially non-existent "analysis" ofthe Project's air quality emission impacts (see discussion above), and an improper "ratio theory"analysis, the Negative Declaration concludes, without any substantial evidence, that the Project'sGHG impacts will be less than significant.

Once again" however, the Negative Decla¡ation's failure to analyzn, the Project's trafficimpacts results inafatal omission from the Negative Declaration's analyses. According to the

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GILCIIRISIIT d, RIIIIIIERPrIOE'EEA¡ONÁ,I, OORFORATION

Ms. Kristina Roodsari, M.M.P.A., PlannerAugust 22,2012Page 9

California Air Resources Board's 2009 GHG Emissions Inventory by Sector(http://www.atb.ca.govloolinventory/daø/gnphlgraph.htm), 38 percent of all GHG emissions inttriJsøte are generated by the transportation sector. Since the Negative Declaration has notanalyzndthe Þroject's taffic impacts, it clearly could not have used the Project's üaffic data toamlyæthe Projecfs air qualþ impacts, on which it purports to rely in concluding that theProject's GHG impacts will be less than significant.

For these rea¡¡ons, as well, the County must prepare an EIR that fully analyzes theProject's potential GHG impacts, circulate the EIR for public cornment and othenrise comply

witfr aU of CBQ¡,'s substantive and procedural requirements applicable to EIRs prior toconsidering the Project for approval.

In summary, for the reasons stated above, the Application is untimely, there is substantial

evidence supporting a fair argument that the hoject could have significant impacts on theenvironmenCand the Negative Declaration lacks substantial evidence supporting its conclusions

that the Project's impact witl Ue less than significant and that the elimination of prior mitigæionmear¡ures will have iess than significant impacts. The County must prepare an EIRthat fullyanalyznsthe Projept's potential impacts, circulate the EIR for public comment and othen¡vise

ro-ily with all ôf CBQn's substantive and procedural requirements applicable to EIRs prior toconsidering the Projeot for approval.

Very truly yours,

GILCHRIST & RUTIERProfessional

Of the FirmACN:djEnclosures

Supervisor Linda Parks, Supenrisor, Second District il Encls. - Via Federal ExpressMs. Melissa Baron w/o Encls.

3 14586_3.DOC/5 I I 8.00 I

co:

Melissa Baron566 S. Ventu Park Road

Newbury Park, CA 91320

August 22,20t2

Ms. Kristina RoodsariCase PlannerCounty of VenturaRMA-PIanning Division L #I7 40800 S. Victoria AvenueVentura, CA93009-1740

t.r-,,- '',=i: '.r ir' , lLi,)l.i4:.: , _!. i- -I

Re: Case No. LU09-0ls8/Negative Declaration

Dear Ms, Roodsari:

I own the property located ât 566 South Ventu Park Road. My property ls located onthe private segment of South Ventu Park Road/Ventu Park Flre Road('SVPR/VPFR"), whlch sentes as the access road for the cell towers cunentlyfnstalled on Rasnow Peak, I am writing to express rny opposltion to the above-referenced proposed Minor Modification of Conditional Use Permtt No. 4577("Profecl'), submitted by applicants Harmon and Eleanor Rasnow ("Applicants"J.Thls letter will serve as my comment on the Negative Declaration prepared by theCounty of Ventura ("County"), which analyzes the environmental impacts of thatProject. For your reference, I am attaching a number of documents as exhibits to thisletter, together wlth an index.

This letter is provlded along wÍth a letter from my legal counsel, Gllchrist & Rutter,Professional Corporation. My legal counsel's letter focuses upon the many defects ofthe Negative Declaratlon. My letter focuses on the historical aspects of theAppllcants' performance under the permits and the proposal under the NegativeDeclaration to eliminate the Transportation/Girculation mitigation rneasuresimposed on the Applicants when the permit was originally issued in 1990.

Please note that references to Exhibits are to the Exhlblts submitted with this letter,and listed on the atrached Exhibit Index.

t

PERSPECTIVEs. VENTU PARK ROAD/VENTU PARKFIRE ROAD

The area ofVentu Park dates to the earliest cabins ofthe 1920s built sparsely on themountain-side, each ratìer indiscriminately placed on.parcels that preceded theCounty of Ventura initial zoning ordinances and uniform building codes of 1947.

Rasnow Peak is on the ridgeline above Ventu Park. ln order to arrive there, onemust drlve SVPR/VPFR, a slngle lane and no extt road (other than an emergency fireroad on the opposite slde of the mountain than SVPR/VPFR). Likewise in exÍting,one must leave via the same one-lane road. To be clear, all traffic ascending mustdescend the same road, a round.trlp travel usage ofthe road.

Ihe use of SVPR/VPFR wlthout a proper and properly monltored'maintenanceprogram is problematic. There are multiple enterprises atop Rasnow Peak, and oneroad ls used for access and egress forthese business operations. The road is notunder the sole ownership of the Applicants, but is shared in ownership with 9 otherroad owners wlth homes along the road and an undetermined number of roadowner.s who have vacant land that abut the road.

All nine hornes on SVPR/VPFR below the Applicants'gate have an unoffìcialneighborhood watch, jolned in some interests, but one most signlflcantly ... lhe road.

As aptly described bythe County of Ventura on March 14, 1988, Errata Sheets tbrDraft EIR for CUP-4411, Traffic Assessment "Existing Conditions" [Ex. 1],SVPR/VPFR is

"rather steep, winding [see Ex. 2], ln poor condition [Ex. 3] andpartlally surfaced [E t 41,'

In addition, there is a bllnd curve [Ex. 5] on SVPR/VPFR, and there is an adjacentmountainslde that is a priorÌty concern for the Ventura County Fire ProtectlonDistrict Now, some 24 yeats after road owners voiced Eheir concerns at the time ofthe Applicants' first CUP, the same concerns still exfst, but have now exacerbateddue to poor maintenance and repair, the lack of implemerìtaLion of the traffic andcirculation mitigation measures and a failure by the County to monitor theApplicants' performance,

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COUNTY MEASURES TO PROTECT THEHEALTH, SAFETYAND PROPERTY OF THE ROAD OWNERS

The County records relating to the current application for CUP-4577 provide thehistory of Applicants'past CUP documentetion. However, to bring into perspective

the updated rhetoric, lt is important to understand that when they obhined theirinitial permit, the Applicants became solely responslble for developing andmaintalning SVPR/VPFR in an appropriate condttlon as a mttigatlon measure andthat the County was responsible for enforcing that mitigation measure:

"The Final EIR for CUP-4411 [Ex. 6.1] identifle¡! a -eafficlmpacl¡ndLdc¡gEed-rnit¡gÈtign-ErcêEufeË...The permittee...will assume soleresponsibllity for carrying out the proposed implementationmeasures to the satisfaction of the County ofVentura...lmplementation of the above mitigation measures must beaccepted by the Planning Director prlor to the issuance of ZonlngClearance for any new permils ...." [Ernphasis added](Exhibit 6.3, Addendum No. 2 to Final EIR for CUP-4411, III(B).)

Applicants chose Option 2, [Ex. 6.3,p.7]

The Department of Public Works stated in Addendum'No, 2 to the Final EIRfor CUP-4417,p.6, [Ex 6.3, p.6]

"The private access road will be developed in accordance with FireDepartments Prlvate Road Guidelines."

and

"The cumulative effect of trips to all communications facilities onRasnow Peak l¡ havlng an lmpact on the privately owned portionof Soutlr Ventu Park Road." [Emphasis added]

Although CUP-44tLwas denied, tbe 1988 EIR and lts addenda were used asthe EIR for the later application. Applicants submftted an application forCUP-4501, which was ultimately granted in fune 1990. The Section C lnltialStudy Checkllst for CUP-4501 [Ex. 6.4], pp. 2-3 reiterates the requirementsand implementãtion of the mitigation measures referenced in the 1988 EIRfor "q¡¡¡ new permits .,.." It goes on to say,

"With the fmplementåtion of these mltlgation measures, no significantcumulative Ímpacts upon the private portion of South Ventu ParkRoad should occur."

It can, therefore, also be said that wftlroutthe implementatfon of the above,signlficant cumulative impacts would occur,

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a)b)c)d)

Owners of SVPR/VPFR received a Notice of a Planning Director PublÍc Hearlng onfanuary 25,20L1, regarding the Appllcants' requested CUP 4577.The Countysubmitted Ventura Planning Director and Staff Report and Recommendations [Ex.71, which were fn error factually. The document restates the May 1988 EIRrequlrements and states that a required mitlgation measure was to "establish arideshare program between homeowners and other sellce vehicle operators". [Ex.7,p.51

However, in reviewing the fune 1990 County of Ventura Approval Letter [Ex. 8.2, p,6 B (25)1, it ¡s SPECIFIC as to the prlvate road portion of SVPR/VPFR requirementsimposed upon Applicants, and a rldeshare program was not one of them, However,the Applicants' compulsory mitigation measures were:

a roadway mafntenance program;signage and other means of policing the road;a controlled gate; andspeed bumps, mirrors or other means of policing the road.

There is yet another lnaccurary in restating the May 1988 EIR requirements [Ex. 6.1,f 17J. A controlled gate "to reduce cumulative traffic impacts along Vennr ParkRoad" was a mitigation measure. However, tle placement by the Applicants of a gatebordering their property, to beneflt them along was not the intent of EIR, and il_d_idrìglspcci&.:et-tLe-en@qce--tg-theRasno¡¿Egpef -qflasindicatedinthef anuary25,2011 County documentation [Ex. 7,p.5f.

The purpose of a gate was to reduce unwanted traffic for all the residents ofSVPRÆPFR; that could onþ have occurred if the gate were located at the entranceto the prlvate road. Now, however, with the gate placed at the entrance to theRasnowproperty, any unwanted traffic travels the enrire length of the private roadto the Applicants'gate. Their securlty guard booms through tlre speaker systemnegotiating entrance witÀ the person Ín the vehicle whose englne continues to run,creatf ng unnecessâry noise and air quality impacts on the residents at that end ofthe road.

Likewiss tlre signage reflected in Ex, 6,1 (Final EIR CUP 44Ll),118 was lntended tobenefit all residents along SVPR/VPFR by deterring unwanted traffic and waywardhikers. However, tlat bene,fìt now fs enjoyed by the Applicants, alone, TheApplicants'interpretatlon regarding the installatlon of a controlled gate and signagebenefits only the ApplÍcants and their property, At the same time, they and theircustomers continue to use, for commercial purposes, the private road that belongingto otlers, which use is necessary in order for Appllcants to perform their businessenterprises, and yet the Applicants conHnue to fail to comply with their county-mandated obligations to properly maintaln and repair that same road, and prevententrance to unwanted traffìc and hikers.

+

The last paragraph of E¡

mitigatíon measures and conditlons, and attempt to distance the Counly from themoniloring requirements set forth ln the 1990 Approval Letter [Ex. 8.2].

The 1990 approval language is quite differentthan that of today's PlanningDepartmenb which has chosen to relnterpret the 1990 Approval Letter to includemeasures more convenfentto the County and the Applicants. There was a momentof hope related to Exhibit 9.7,which is an email dated February 22,20Ll,inwhichPlanner Roodsari admitted that the County had required that a roadwaymaintenance plan be completed by Applicants, but that lt had not been completed.The email then went on to say,

nBased on the Public Works Agenry TransportaÈion Divisionprofessional Ínterpretation of what constitutes a roadwaymaintenance plan currently, tlris includes resurfacing the road, flxingpotholes, etc. The condition for the subject modiñcaHon has beenrevised Èo reflect this clarification. Thereforg the private portfon of S.Ventu Park must be improved to through a roadway maÍntenanceplan, whlch includes resurfacing tlre road fixing potholes, etc,

To ensure Compllance with the mitigation measures and permitconditíons for the subject project, the project has been conditloned torequire that the applicant set up a conditfon compliance monitoringaccount. This wilì allow the Planning Department to conduct a fullrevlew of the proJect lncluding compliance with the project'scondltlons, several times throughout the life of the permit. The AccessRoads improvements condition...has been revised to require thatdocumentation of the road improvements, in the form of color photosand receipts be submitted to the County every two years during thelife of the perrnit to ensure that the maintenance work is performedregularly,"

After this email, you wfll not find thÍs compliance language in any CountydocumenÈation related to CUP-4577. The assurance was only presented in an email,The County of Ventura would like to use the road, yet absolve ltself from anyresponsibility.

The County was .to perform a monitoring program, paid for by the Applicants, ttrinsure that the Applicants dld their job. Apparentl¡ when Ex, 8.2 was created, thecounty had the foreslght to belleve that without a county monitoring system,Applicants would not perform, or would minlmally perform,

"(d.) THE RESULTS OF THE MONTTORINC PROGRAM "$HA*tL[EMPHASIS ADDED] BE REPORTED TO THE VENTURA COUNTYPLANNING DTVISION, WHICH WILI BE RESPONSIBI,E FORMAINTAINING THE CORTESE REPORTING FIIES... (3) The appticant'sfull compliance ,.. will be reviewed and approved by.,. dre Resource

6

Management Agency, and as such, will satisfy the proposed mÍtigationmeasure."

[Ex.8.2, p. 6 (emphasis added)]

The County relies on a 1988 EIR, an EIR that dates back 24years and notes thatthere have been no significant changes since that timq though there are moreresidents both below and above lhe ApplÍcantl gate, and new business enterprises,both commercial and charltable and orBanlzational meetlngs, atop Râsnow PeakCertalnly over those 24years,without proper maintenance and repair, the road lsno better. The reason is simple, KnowingthaE the County was not monitoring theiractions, the Applicants performed poorly and minímally any malntenance below theApplicants' gate. Presumably, not once in 20 plus years has the County monitoredthe Applicants' performance of the mitigation meesures. After all these years andno monltorlng, one must asktlte question, howhas the County acqulred ltsínformatÍon to create the reports tbatsubstandatetlre Negatlve Declarationand previous reports? A possible answer could be that other than usingregurgitated material from24 years of CUP applicadons, the County has used thedocumentation created ancl provid ed by Applicants.

Imagfne my surprisg after ieviewing the suppordng documentation for theupcoming hearing on the "Notice of Availability of and Intent to AdoptNegatlveDeclaration" [Ex. 10], when I saw that the miügation measures initiated in theorigÍnal CUP:4411 and related 1988 EIR and addenda relied upon for all CUPapplications to-date, and discussed at lengh lastyoar between private SVPR/VPFRroad owners, Applicants'representatives and the County of Ventura, had beenstricken in their entlrety. All of them, every last sentence, have vanished from allcurrent substanciating documentation for CIIP-4S77, even after an email from theCounty with the assurance that these rneasures had been wrltten jn to protect theroad owners. [Ex.9.7]

Thereforg some?Z years after the County's 1990 Approval Letteç the mitigationmeasures have never been properly implemented and are now belng suggested forelimination fn connectlon with the issuance oÍ CIJP-4577. This ls not only a travesty,but unconsclonable and conlínu es a Z4-year course of neglect toward the privateroad owners by deliberately ignoring the requÍrements and agreements that arespecifÌc to implementation, maintenance, repalr and monitoring of SVPR/VPFR incohnection with the existing permits.

APPIICANTS' FAILURE TO TMPTEMENT MITTGATION MEASURES,

I am a proponent of buslness enterprise, and understand that certalnresponsibilfties and expense travels wlth a commerclal endeavor. Presumably, thecommercial lnvestrnent of cornmunicatlon towers atop Rasnow Peak of at least 24years ls oneworth the expense of legal counsel, consulÈants, the permltting process

7

and liabilities. Likewlse, seemingly this type of venture also merits the same by theCounty of Ventura in its need for use of these communication facilities.

Poor maintenance and repair of the prÍvate road over a 20 plus year period has ledto a cumulative effect of wear, tear and dlsintegration, There are more Rasnowcustomers now and more planned for the future. There are more licensees/enterprises and workers atop Rasnow Pealç and more homes below and above thegate,

As nored above under'COUNTY MEASURÉS TO PROTECT THE HEALTH, SAFETYAND PROPERTY 0F ROAD OWNERS," the Appllctnts themselyes chose to be solelyresponsiblo for the rnaintenance and repair of the road. It was antlcipated, even atthat tlme, that the Appllcants' bustness enterprise would grow, increase over timeand wtth it certain issues concerning traffic irnpact.

"There is potential for an addition to the cumulative traffic impactsexperienced by the share-users of South Ventu Park Road (privateportion)."(Addendum No. 1 to the Final EIR for CUP-4411 18x.6.2,lll(a)1,)

As a result of the County of Ventura Planning Director and StaffReport andRecommendations Hearlng on fanuary 25,20L1[Ex.7l,three meetings were heldwherein SVPR/VPFR owners [E:r-17.3|expressed each of their concerns [expandedupon in detall ln this letter) to representatives of the Appllcants. Over a perlod of acouple of months, the private road owners tried to understand the nature of theroad issues and resolve them amongst themselves, The result of the meetlngs wasdisappointlng for them, Beforq in-between and after these meetlngs, various roadowners communlcated dlrectly with both Planner lftistina Roodsari and DanlelKlemann (atthe fime was the Manager of the Commercial and Industrial PermltSectionJ, the detailed nature of their concerns for past poor performance inmaintenance and repair of private SVPR/VPF& the non-lmplementation of therequislte mitigation measures, the failure of the County of Ventura to moniùor theperformance of the applicants and the status of the multiple meetings [Exs.9,collectivelyl.

The CUP process was delayed in order for the Planning Director to have"sufficient tirne to consider the new information regardfng the current traffìcconditions of the road' [Ex. 19.1 (emphasis added)]. Applicanrs'representatives have claimed that because they no longer have lessees, butlicensees, they cannot recoup expenditures they make toward rhe miilgationmeasures; additionally, they claim that, because the road was materiallyalrered during the construcdon of two honles on the paved portlon of theroad, the Applicants' responsibitlty to midgation measures as been absolved[Exs. 18.1 and 18.2]. Therefore, this combined wlth the pubtic commentconcerns was the rationale for the County to posþone a decislon IFj,t,19,Zl,

I

Bluntly, ft appears that the Appltcants do not want to pay for the business exPensesregardlng SVPR/VPFR required to keep their enterprise in operation; they wouldlike others to incur that cost. It has taken 24 years to bring to a head the failure ofthe Applicants to comply with the mitigatÌon required from the original CUP-4411documentation in 1988, in the 1990 Approval Letter and referenced and relied uponby both the Appllcants'and the County in each further CUP documentadon andcorrespondence to date.

ln the year and a half slnce the prlvate road owners brought thelr concerns to light,there still has been minimal maintenance and the road remains in "poor condition.'If there ever was a tlme to prove the Applicants' "good intent" this last year wouldhave been opportune, a momentto shine while under scrutiny. TheAppllcants håvenot, which leaves little doubt as to whether they will maintaln the road òver the next8-10 years of the permit term. ln fact the omission of the mitigation measures fromthe recent CUP documentatÍon Ieaves the Applicants without responsibility towardany maintenance, repair and improvement otler than the respon.sibility they mighthave as any other road owner between 553 to 1000 WPRÆPFR.

If the appllcants have no responsfbility for maintenance, repair and improvement ofthe road, the County of Ventura has nothing to monftor. Consequently, without thepresence of the existing and perhaps stronger mitigation measures, there will be nolegal way to insure that the Applicants perform any malntenance or road reparationother than through a costly civil suit.

The Applicants benefÌt financ-ially ftom the continuÍng use of a one way, no exiù,single-lane road that leads to and from their buslness enterprlses. The County ofVentura benefits wlth communicatlons facilitfes atop Rasnow Pealç whÍch beneñtsthe communlty at-large. How do the SVPR/VPFR owners benefit? They do NOT, Infact, traffÌc traverses and damages their property on the sole road leadÍng to andfrom the multiple buslness enterprises at the top. The County agencles andcustomers of the Appllcants have been and will continue to be allowed to use theroad and not contribute toward its rnaintenance/repair, and the Applicants havebeen and will contirtue to collect revenue without paying for the maintenance,repair and improvement forthe deterioration of the private road.

However, whatthe SVPR/VPFR road owners, below the Applicants'gate, endure is:

the aftermath of floating dust from the cars on the dirt portion [Ex 11][Despfte the mitigation measures imposed on the Appllcants, it is obvlousthat County monitoring of SVPR/VPFR has not been performed (let alonereported) in the last 10 years or they would have observed the floating dustturbulence each time a vehlcle passes up or down the road on a non-wet day,regardless of whether lt is the dirt road portJon or the paved section. TheCounty must belf eve that dust particles landlng ln the resldents lungs, ontheÍr bodies, on their vehicles, and coatlng the exterlor and in the interlor of

L,

9

2.

their homes is the norm and harmless; and that impaired vislon due to thedust flurries is safe.];

speeding cars traveling uphill, downhlll and around a blind curve [Ex. 12].[The same dangerous condltlon as was noted in the 19BB EIR Errata (Ex. 1)contlnues; cars (more cars slnce that report 24years ago) drive at excesslvespeed both rip and down without one speed bump on the prlvate SVPR/VPFRto slowthem down, Speed bumps were a required mitigating measure 24years ago; they were not lnstalletl, and they do not exlst today, TechnÍcianswho work the communicatÍons facilitles have no vested interest in the road,They care about gettlng to the tower quicldy and leaving even more quickly,Despite the yells of neighbors to 'SL0W DOWN' and previously calls to theApplicants' compound, speeding continues.]

flying gravel churned from the poor maintenance of the dlrt road portion,which dings cars and lands on the paved portion contributlng to thecontinuing disintegration of tle paved road [Ex. 13].[The improper maintenance creates large size gravel and small rocks, whichtravel downhill. They ding parked and passing cars, ultimately resting in bulkalong the roadway of the first houses of pavement downhlll from the dlrtroad. These rocks are ground along the pavement as vehicles pass over them,and this further disintegrates the road pavement.]

protrudlnB rocks and divols on the dirt portion, a result of poor gradinglEx.14l.[Improper maintenance produces large projectile rocks f utting out of the dirtportion the dirt portion, and depressions in other areas. The travel up anddown bounces the vehlcles drivlng atop, whlch adds to the disintegration ofthe dirt road and vehicle damage.l

wash-boarding on the dirt portion [Ex. 15].flmproper maintenance and grading creates wash-boarding of the road.Vehicles going uphill build up speed before entering the dirt portion and thenas they hit üe dirÇ the drivers "gun their engines." When the wheels don'tcatch, they spin, creating dust and more noise. 0n the downhill route, speedbuilds and there is mlnimal traction to stop, Frequently, one hears thedragging sound of wheels spinning and a car having a difficult time trying toslow down or stop,]

a road in dangerous condldon for any type of travel, let alone as an exitin case of flre [all exhlbits, supre, and Ex, 76 and 17 .21,[The Venn: Park fire zone has burned in varlous areas approximately every20 years since 1955. In 1993, the tìre burned across the lop ofthe ridge anddestroyed a significant portion of the Appllcants' properfy. It is now almost20 years since ùhe last flre, The majortty of the shrub on tle hillside servicedby SVPR/VPFR has not burned ln more than 50 years, It is on Ventura

3.

4,

5.

6.

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Count¡y's list of priorlty concerns. The road is the sole ingress and egress forresidents and workers using SVPR/VPFR'I

A review of a topographical map [Þ