HomeMy WebLinkAboutMINUTES - 08261986 - 2.5 UJ
To: BOARD OF SUPERVISORS
FROM: Harvey E. Bragdon, Director of Community Development Cwtra
C )sta
DATE: August 14, 1986 Cou*
a
SUBJECT: Letter of Appeal of Sandra Tomlin of Zoning Administrator's approval of
Land Use Permit 2085-85
SPECIFIC REQUEST(S) OR RECOMMENDATION(S) & BACKGROUND AND JUSTIFICATION
Recommendation: Acknowledge receipt of report from Director of Community
Development concerning correspondence to the Board dated June 26, 1986 and July
99 1986 received from Sandra Tomlin and Wayne Roberson, respectively, regarding
Land Use Permit 2085-85, a transmitting tower located on the north peak of Mt.
Diablo.
Background:
This is in response to the letters from Sandra Tomlin dated June 26, 1986 and
Wayne Roberson dated July 9, 1986.
Attached for additional information, please find a copy of the staff report
prepared for the September 9, 1985 and October 14, 1985 Zoning Administrator's
meetings, the December 3, 1985 memorandum to the Board regarding Ms. Tomlin's
November 27, 1985 letter of appeal and the effective conditions of approval .
Also attached are copies of transcribed pertinent portions of the public hear-
ings.
Following is a chronology of the project:
June 20, 1985: Application submitted, including supplemental information
required by Contra Costa County Communications Policy,
Archaeological Field Inspection Report by Miley Holman,
Preliminary Floral Inventory and Habitat Survey by Stewart
Winchester, and Cultural Resource Assessment by Peak and
Associates, and Supplemental statement by the applicant
summarizing pre-application meetings (met with Bob Doyle twice,
met with and retained Stewart Winchester and Miley Holman, met
with Holman and Wayne Roberson on site at the time of the Holman
site inspection and contacted and received correspondence from
Sandra Tomlin) .
July 1, 1985: Staff circulated application to Public Works, Health Department,
Building Inspection, Eastern Fire Protection District, State
Parks and Recreation, County Sheriff's . Department, Save Mt.
Diablo, Sonoma State Anthropology Department, and the County
Geologist.
CONTINUED ON ATTACHMENT: X YES SIGNATOR ,
RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMM TION O BOA COMMITTEE
APPROVE OTHER
SIGNATURE(S):
ACTION OF BOARD ON August 26, 1986 APPROVED AS RECOMMENDED X OTHER
VOTE OF SUPERVISORS
I HEREBY CERTIFY THAT THIS IS A TRUE
X UNANIMOUS (ABSENT III AND CORRECT COPY OF AN ACTION TARN
AYES: NOES. AND ENTERED ON THE MINUTES OF THE BOARD
ABSENT: ABSTAIN: OF SUPERVISORS ON THE DATE SHOWN.
CC: County Counsel ATTESTED
County Administrator PHIL TCHELOR, CLERK OF THE BOARD OF
SUPERVISORS AND COUNTY ADMINISTRATOR
BY ,DEPUTY
M382/7-83
2.
August 9, 1985:Notice of Preparation on Conditional Negative Declaration
circulated to the above noted agencies and interested parties
plus State Department of Fish & Game, Native American Heritage
Commission, American Indian Council , American Indian Movement,
California Native Plant Society, and Susan Watson.
August 17, 1985: At the request of Sandra Tomlin, the Notice of Preparation was
also sent to Dwight Dutchke of the Bay Miwok Tribe and Jeff Davis
of the No. Yokut Tribe.
Sept. 9, 1985: Public hearing on the project and final date for comment on CEQA
finding. Received letter of opposition to the conditional
Negative Declaration from Sandra Tomlin.
Sept. 19, 1985:Staff requested reconsideration of the project to allow for
consideration of Sandra Tomlin's letter. (Reconsideration
granted by Zoning Administrator - set for October 14. )
Sept. 30, 1985:Additional information submitted by Sandra Tomlin.
Oct. 4, 1985: New public hearing notices sent out.
Oct. 7, 1985: Additional information submitted by Sandra Tomlin.
Oct. 14, 1985: Zoning Administrator rescinded decision, opened new public
hearing, heard testimony (Susan Watson & Sandra Tomlin spoke) and
approved application subject to amended conditions. Sandra
Tomlin advised of appeal procedures and appropriate process to
request waiver of appeal fee.
Oct. 24, 1985: Letter from Sandra Tomlin to Planning Commission Chair regarding
appeal/reconsideration with no fee.
Oct. 25, 1985: Tomlin advised by phone by Ron deVincenzi of appeal procedures
and process to request waiver of fee.
Oct. 28, 1985: Tomlin advised of appeal procedure by phone by Dennis Barry.
Nov. 27, 1985: Sandra Tomlin sent letter to Board of Supervisors on
appeal/reconsideration. (Referred to Community Development. )
Dec. 3, 1985: Response to Clerk of the Board on Tomlin's November 27, 1985
request.
Jan. 8, 1986: Notice of Determination filed with County Clerk.
March 4, 1986: Received copy of a letter to the Board of Supervisors from Tomlin
requesting suspension of the permit approval pending response
from the Governor's Office.
J
3.
March 21, 1986:Received copy of Tomlin's March 17, 1986 letter to the Governor's
Office.
July 3, 1986: Received letter from Tomlin requesting status of responses and
requests for appeal and reconsideration.
July 21, 1986: Received copy of Wayne Roberson's letter of July 9. to the Board
of Supervisors.
In specific response to Mr. Roberson's letter of July 9, 1986 to the Board of
Supervisors, the file does contain a letter from Ms. Sandra Tomlin dated
September 9, 1985 to which she attached a copy of a letter from Mr. Roberson.
The attached letter is addressed to the Freedom Council in Virginia Beach, VA
dated December 15, 1984 and addresses the prior application for a TV Station
(Channel 42) on Mt. Diablo.
Subsequent to that letter, the record shows that according to the applicant,
prior to submitting the application, Mr. Roberson met with him and Miley Holman
(retained to do a second archaeological report) on the site at the time Holman
did his site inspection. A copy of Mr. Holman's letter supporting this
contention and dated April 18, 1985 is also attached.
Mr. Roberson never appeared or spoke at a noticed public hearing or submitted
any correspondence for or against the project.
Although not related to Ms. Tomlin's letter, we are including copies of a letter
from Miley Holman to staff indicating that his firm has been retained to perform
the ethnohistorical research required by condition number 7 and staff's reply to
the applicant concerning this study, for your information. .
Ms. Tomlin was advised of the procedures to appeal the decision of ,the Zoning
Administrator granting Land Use Permit 2085-85. Ms. Tomlin was also advised
that she might request a waiver of the appeal fee, although it would first have
to be paid during the appeal period. No appeal was filed on Land Use Permit
2085-85, and there is no basis for the requested suspension.
DA/aa
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Enc.
cc: County Counsel
County Administrator
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2411 i ienlock St _�t1,� bio , y480b i415) 22j-j)2)
r DISTRIBUTION
'rd Y Board Members
County Administrator
Board of Supervisors 1986Health Services
Cv;v`l't[A CU:al'A CvU,V�'1 I!� } 29 .x !
Community Development
rine and z scobar Public:'Jertcs
,.�artinez , CA-j45
._ County Counsel
hE : Status of two Clarification re tuests on iwec-,ative
_Rciaration onDur 2J85-6
Status of two RA iJiv requests on tve6ative
Declaration on sur 20 85-85.
Status of two appeals filed ori time on the i,e�ative
iJecia.ration on Lbr L0. 85-85
Discussion of the .;;ivil !tights violations on ,matters
dealin; with iv.t . Diaolo
�U1'rLL':+1".IALIl. 1142 ,KuiiiTlJly —request for STAY1JN r-6xivii`1
Dear Supervisors:
'- Since your body nas not responded to my earlier correspondence on
this matter, 1 a-ain br. in� it up to you.
i have made two request for a clarification on the Ne ative
Declaration, cited above . ine was .to the rianninS Commission .
' (See Item A) une was to the board of Supervisors. Neither body
has written any response .on this point , after many phone requests
and a formai- letter to the Board on rebruary 2G, 1 8G. item
i also appealed to the .vovernor to look into the matter and sent
the board a cony of'. that letter. (item C )
-- Di-CuSSijl �Jr CLAKit'iCAT iJiv K.PtiuE;D z)
As discussed in the appeals, the Contra Costa county votice of
�17em ��Determinationln the above cited matter is fraudulent. It is not
the final determination whlen was reached on October 14th at the
hearing. ivews reporters .and Susan oatson can testify.,as can i ,
that the vernal decision was different . The actual decision was
that there would. be siGnificant et ects but tnat these would be
minimal. it was futher stated at the hearin . that otner significant
effects other than those in -the prepared NeGative Declaration "were
discussed," but there was no mention of thein in the he.arinG and
there was not written accounting of these "other significant ef'f'ects. "
I was assured by lcis. r,,athleen lvimr of the FlanninS Commission
that the PlanninG Commission had the authority to order a clarification
be made . However this motion was not Granted either by the rlannin&,
Commission or the Hoard of Supervisors.
I have made two formal requests for This is a
proper lec;ai motion which can be done either at the same Ievel or at
a higher level. i`+iy experience with a FCC case showed that the
keconsideration .was a special consideration that was placed before
a formal appeal, and it could be combined with another motion.
I have place the, motion of RhCJNS1DEi,,AiJir before doth the rlanninz;
Commission and before the board of supervisors. In the Contra Costa
Couftt,,� Fee CnarGes (item E) there is no •fee charges for a reconsideration.
placed before the Planning Commission or board of Supervisors.
June '26, Y986
pa„e, two
--- Discussion of iir:COivalLErir1TIUIv/A rr.a:,
in two conversations with the Chair of the rianning Commission,
iris: Nimr, iwas informed that the rlanning Commission . has the
authority to order a reconsideration of that ire ative Declaration .
riarvey 3ragdon presently the dead of the rlanning Lepartment,
at the time the Zoning Administrator, told me that the riannino
Commission does not- have that-power. Since neither reconsideration
was processed , I am assuming that it is tr,e contention of the
legal department that neither body has the authority to review
a matter and order that 'it be reconsidered? A condition that i
find very absurd . i cannot imagine a county where the riannino
C�ommissinn and the 3oard of Supervisors cannot request a clarification
or a reconsideration;
I amenclosing a copy of the Topanga Case (item r::) which support
both a reconsideration .or a full reversal of the determination.
if major importance is page 742, where it states that the permit
a,ency in co,mpiiance with CE;,A .r,UST find a project to have a
significant impact etc . ,etc . IT Iz) NjT ti ivATfr A jv Crio iCr- for the
permit azencyt ; If there are other overriding considerations
( such as public health and safety, for example ) , then a declaration
of such facts should have been filed . in clear legal lanouaoe the
Topanga Case states that permit a-encies must take proper facts
(public testimony, etc . ) and use rational le&ic and Etdti guidelines,
which do include Appendix t; , and reach a proper decision. They
may not act in an illogical or unsupported manner, for such is
an abuse of discretionary power.
l am enclosing items v , H, i and to illustrate the many significant
impacts/ef'fect/issues that were raised :
1 . ) Si -nif icant fecs appendix C
"A� paza r p•h j ,
project
Cr�tti
will normally have a significant effect on the
environment if it will: disrupt ' or .adversely affect.
a prehistoric or historic archaeological site ora property
of historic or cultural significance toa community or ethnic
;roup" .
a . The archaeio`,icai surveys that have been done were restricted
from the incorporation of' any imput from medicine people ,
or, elders! These surveys did not attempt to identify
et%znobotanical impacts or impacts on heating rocks, which
were known about in 1)63. instead the vr.r��ii Ji Lr.l:i�AriAiluiv
has a CONLITIv v ,f7 ,
b . Condition #7 has not been complied with . . .supposedly "aitnin
six months of the effective date of this permit the applicant
shall submit a report to the County for review as to adequacy
addressing the. spiritual significance of ,q;t . Liabio .
According to the ivCTiCL �,iLLTrx.�:IivAi'I�i� , (ite,i L� the project
was approved on "lv/14/8b. " T nis then is the effective date
of the permit , it is no-Weight months later, i have reviewed
the files, and there is no additional reports in it!
This Condition has not been met.
c . Condition. ;f7 also stipulates, " The report s:.ali be prepared
by a qualified archaeologist , shall include a summary of
r-
rune 2b, 19bb
paSe_;three
available information including oral interviews and shall
identify spiritual artifacts and plants." Again, i have
looked at the Contra Costa Flannin? Department files, and
there is no such report! "rhe report shall be made avail-
able to the State Department of Parxs and Recreation for
use in their longi rar.-e general "Plan for the nark ." in other
words, the healins rocks and ethnobotanically important
plants on the worth Peak of ivit. Diablo are considered
sisnificant for future Park plans for the whole park!
rrhy is the impact upon these resources considered not to be
sijnificant to the current project'? "forseeable probable
future projects" is a definition of "Cumulative impacts,
Section 15355 of CrrpiA which .is a mandatory finding of
significant effect; required by Section 21083 of Cy.�A .
2. ) Significant Effects, A pend ix r , para2 rapn w, CE.�A
A project will normally have a significant effect on the envir-
onment if it will . . . conflict with established recreational,
educational, reiizio.us or scientific uses of the area"
a . See item 69 ,J), (8.4 and following pages on document I
5 and 6.
b. Despite the public testimony and documentation on the usage ,
this significant effect was not listed in the iveoative
Declaration.
NiT.6 ` ANA. �iJTi� j aivD w OF 'I'n CEQA KPPENLix Li were mentioned in the
NAHI-k CJiiliviENTS of September 27 , 1965, many weeks before the iveoative
Declaration was prepared !
}.� Significant Effects, Section 15064, h, ( l j CEQA
If there is aerious public controversy over the environmental
effects of a project, the Lead agency shall consider- the effect
. to be significant and shall prepare an Ein. "
The overall religious significance is surported by item 1 )-8
and by item -4.3-4. iowever the Gounty ignored 2U lines of
authoratative and credible evidence which support the sacredness
of frit . Diablo and emphasized only 4 authorities: a student, two
who are not credible and one who uses a disclaimer in his work .
a . Prejudicial Abuse of Discretion Test. aection 211W5. 5 GE-.1A
"Abuse of discretion is established if the the determin-
ation or decision is not supported by tubstantial evident e ."
The critical evaluation of substantical evidence is
defined as "examining the entire record" in Section 15365,
b. The County attempted to shore up its exceedingly weak line
of evidence against the sacredness of the iv,ountain by
referring to arcneolooical analysis oil Sonoma estate of their
ecords. however lir. David A rredrickson, the head of the
rchaeological Bepartment at rn e time , advised the County
in a subsequent letter that inxptrtaining to reijious
values, "Dur office does not systematically maintain such
information." So the work done ray Sonoma State cannot be used
to support the County position that the mountain is not sacreds
(See item L)
June 26 , 1986
pace lour
c . The County attempted to snore up its exceedin6iy poor line
of evidence by using the letter of Jonn Smith of the
ivative Ei.merican rierita e Commission. nowever you might
notice that lir. rredrickson specifically refers to �Ir. neck,
the current birector'. who is called an Executive Secretary ,
and o,s jspitai . doth of these individuals are native
American, and ivir. .)eck is California Indian , Now the reason &,,t
Dr. rredeickson refers to Indian members of the staff . is
because the :,acred Ijands :.study is considered so special that
the records are not open for i4on-lndians,of any kind .,to ioQK
at . F.r. Smith is a non-Indian and as such, was restricted
from the full use of the Sacred ;,ands Study :
d . riowever I did obtain a declaration from ,s.abei ivic nay , the
elder who placed it. Diablo on the Sacred Lands Study .
( See terra IVO (She is a Tomo elder)
e , `Fieri ' s another declaration from an elder of the r+intun
`Price . (See item N ) �Laime nayem)
i`ote that these two declarations of romo and iiintun elders were
obtained for tie purpose of the Appeai nearin`, oefore the
?tannin Commission) whici was iile--ally denied , and wnicn never
took place .
f . i understand that Juanita Centeno , a Cnumasn elder, has
also sent a tetter into the County, but in my record search,
i nave been unaole. to locate it .
4 . ) Sicnificant Effects, section 150b4- (h) 92) -dA
"If there is a disa�reernent between experts over the sijnifi.cance
of an effect on the environment , the lead ii;ency shall treat the
effect as significant and shall }prepare an r.I.Lc
to
a . Lonna Endom ' can be seen to be ar-�uin-; with the dead of the
School of Anthroplo-y at' uC Berkeley in the irioune article
(See J11 ) . However Dr. Simmons agrees with the Indian
position that the ,viountain is sacred .
b . Again, there is wide documentary evidence , the statements
of three elders, and the statements of Lr . rorbes of uC
Davis, wno is a professor of anthropoioy as well as an
Indian. ijr. rorbes; presents a len6thy discussion of ,it . l:iabio
in one of his works.
5. ) A subsequent E.Ih is required under CE.jA 151b2 if "irew information
becomes available , and . . . The information was not known
and could not have been known at the time the previsous Lirt
was certified as complete
a . The issue of the sacredness and desecration of tv,t . I iIablo
was not covered in the : ih of ly7b, and a subsequent
ETR should be required .
b • ) There .is an "effects on other laws" section of CLy Section 21174
"No provision. of this . . . is,iimitation or restriction on the
power or authority of any puolic agency in the enforcement
or administration of any provision of law which it is sf;ecif icaik.
permiteed or required to enforce or administer
dine 2c , 1 y�t,
.; pale f ive ;
Additionally there is an other laws stipulation in the Gondemna-
tion-.yrder (See Item U
'Le fend ant . . shall comply with all applicable federal ,
state and county rebulations, laws and ordinances, in exercisin^.
any of the rignts reserved in said easement ."
Ine f'ollowin "otner. laws" nave not oeen iollowed .
a . The easement permit for this project, uur 22Uj-75, went
tnrough a five year review and Conditions for its
approval section i�ee Item r)
"Ei comprehensive report anb tnorough inventory of' the area
witnin lUO feet, of the sites shall be undertaken to
include the following : z tnn000tanical studies should
be performed . "
There is no, ethnobotanical report on file in the rlanning
Lepartment!
0. There is a County Televi sl_on vrd finance 11 62-2c. There
is an overall policy stated in the negative 1Leclaration
( see n-)i
"The policy established to guide decision-makinE- relative
to communication sites states .as its goal ' to meet present
and future communitpation needs within Contra Costa County: "
It further requires "demonstrable proof of need. for new
sites.'
Cn 5ite six,tne county required Channel 42 to snow need ,
and in 1982, letters were received from a flew -.local ministers
wnich supported a community need .
riowever site 5, to be developed by Channel 64, has not been
required to mate such a showing of proof' . riowever in. 19065,
submitted considerable arGu�tmert that the needs for such
services had gone oeyond the saturation point in Contra
Costa County , and indeed were on a national decline since
197o. At this time I would lute to introduce more evidence
(1tem QJ in a news article aoout nay area rundamentalist
Anonymous.
In the documents and nearinas on the cite 5 development ,
no Count: need was estaolished .
c . 'There is a necessity clause in the kublic resources Code
Section 5097. 96 C�iapter 1 . 75.
"Oo public a-ency, and no private party usin5 or occupying
public property , or operatin-, on public property , under a
public license , permit , grant , lease , or contract made on
or after July 1 , 1977, snail in any manner wnatsoever
interfere with the free expression or exercise of iNati\te
American relie,ion as provided in the united estates Constitu-
tion and the California Constitution ; nor shall any sucn
agency. or party cause severe or lrrparaole damage to any
Native American sanctified cemetery, place of �.orsnip,
relizious ceremonial site , or sacred shrine located on
public property, except on a clear and convincing showing
that the puclic interest and necessity so require . '
again, the County and the developer nate shown no need for
the project .
r rune 26, i'98b
pa`! _six
d . There are Mate and National .Historic rreservation Acts .
The Office of Historic Preservation in .aacramento has
not commented on this matter, and the County has not
requested it even thou-n:
The County has _letters from archeologist lir. Thomas
rain-_ , Lirector of the advisory Council on riistoric
Preservation ( sent to the iCC on ,;arca 21 , 19i8jj kitem n-9j
"concerninE estab lish,nent of a transmitter tower on the
north peak of ��_t . Diablo in California . it appears
that this undertakin- may affect a property included in
or eli,'imie for the National ne ister of ,historic rlaces. "
The County has a letter from ; eorge Uobs. (to,arch 2i , 1963)
(Item S) This local arcneoloaist says the reit . Liablo has
"already 1)rob_ ble eligibility for inclusion in the
National Ae'ister of Historic ;laces. "
I brought up the National register requirements from ly8j
to 198;; . (see item r,-2) "r lease note that ideolo -1 .and
apiritaal values have been used oy the )ecretary of the
Interior to determine eligibility for listing on the national
nezister of riistoric :laces, under the National .-iistoric
i-reservation Act (ivrirgay i)8j referrence for that state-
ment was "ir;ay , 1981 , "rieiKau riistoric iiistrict. "
.;n "wept . ), 1)85, in relation to LUr 2085-85, i a-ain ,,, 1543
brought up evidence to support nomination to the ,National
�e_ister. (aee G-2j
;vir. . is Rue nas not complied with State and federal
Taws, nor has the county.. zoth are violating both Cr�A
and the Condemnation order, as well as the atate riistoric _
Preservation Act and the national Historic rreservation Hct .
e . There are a number of Constitutional violations. To
descrioe these violations; i am enclosinL, my recent letter
to the Grand Jury. (bee item T)
The violations i mention are
Separation of Church and State Doctrine-rirst Amendment of
the US Constitution
neligious Freedom- First Amendment of the Ua i;onstitution
Freedom of Speech to express grievances-iiist Amendment of
the LAS Constitution
Due rrocess-14th Amendment of the US Constitution
intention and spirit of CE.4A-following expressed Purpose
of 1iEPA
improper filing of the Notice: oil Determination.
TWO VAIJiD AirEA"'
Prior to placing the second appeal , I contacted a pro oono
lawyer and asked her to find out what the procedures were . i had
been unable to determine much , but a lot of- conflicting information,
on my own.
J Ghe 26, 1986
r page. seven"
r-n e
i ifgd' been told by lion de:Yincenzi inlrlannin5 Department to staple
the raaiver letter to the Appeal so that it would not bet separated .
I was told by Jinny Crawford of Supervisor ,r;c Teak' s office that
it did not matter what department kriannino, etc . j i submitted the
waiver to, the waiver snould get processed anyway . i had about
20 other conversations with Manning and legal staff' and never
got a clear impression of the process. There is no r�; �iE�lYZ form
with instructions on it or procedures on it! i had asked the
rlannins Commission to process the waiver for me , since i could
not set clear instructions at the time . However the first fee
waiver was never processed .
Harvey 3raJdon told me i had to submit ,p100 with the fee waiver,
which seemed to be absurd since that process should be described' as
a r'ErErUivL not a waiver. I advised him of a case citation used
by. ti(,',Lu: Connover vs :fall 11-Cal-Aept .-JD-842, in which there is
no fee requirements for indigent people who have Constitutional
complaints. I told him further that the California Indian Legal
Services said that the practice of requirinj X100 before processing
a fee waiver could be cnallen�aed in court .
So i. called an attorney, irtaryanne mitten of Concord . k415) 825-9448
She called the County and A r'r.vv ,viii�UTr"S later called me back . Sne
told me that the procedure was that the appeal is first accepted
as bein filed on time , then the fee waiver is processed ! She did
not _et the run around for days that i got .
i nave filed two valid appeals. They have peen illegally
denied , and 1 have not been informed of that fact. riarvey Srasdon
promised to write me a letter explaining why the rlannin5 Commisbion
does not have the power that the Chair of the Commission claimed
it does have and explainins, why the appeal was denied . 1 am still
waitins for that letter., I have asked the Board of supervisors
for the official status of the api�eal and you have not answered me !
1 am not an attorney, but I believe that the US Constitution is a
primary force in law, and that the Civil Ai;�,hts violations,wnicn
illegally denied two appeals that were filed on time and were valid
in every respect, have ramifications on the suoseauent Notice of
Letermination and permit issuance . The tippeal is valid and the follow-
ing procedures are not . i believe that the Civil ni;;hts violations
have the potential to reopen the Cr.d:i ,iearin_s on iur2ii85-85.
And i demand the hearings be reopened ! Also , Vfraudulent iveoative i;eclara
tions do not invokL.tne CE,tti 3U day limitation on action to review.
4wgin , I ask for a stay on this permit . To proceed is in clear
.violation of ;;ivii nights, 0.6.tA and the Condemnation :;rder which
grants easement .
Sincerely
�-
S--nd ra Tomlin
Enc to : listed on next pale (',��
CC : State HxC
Justice Lepartment
u rand Jury
~ ' June 26, 1980:
C.
Duly 1986
ci;
TY
Board of Supervisors ;-PT.
P11xi, Lur 2085-tis Liaroid Cami), g o gamily stations, Inc .
Dear. Supervisors:
I wish to comment about your recently appointed Lirector of rlannino .
ivlr.. Harvey E . Braod on is a L!Ax!
In a memo to the Board , on December 3, 1985, he said , "in fact ,
Wayne Roberson, the native American who usually testifies . . . was
satisfied with the proposal. " iviy official comment on channel b4
is in the record , submitted September yth, . 1985, "here is no
justification for any violation of our religious rights, exo-ept for
arrogance ' pn the level of tintiochus Dpiphanes." :-iow iv,r. Garvey E . zra�-
don has interpreted this statement to mean that i ryas satisfied
is beyond imagination, for I have never been satisfied with any
television tower on the North Teak.
vvhile iv:r. Harvey E . Bra=don says that "anyone wanting to modify
such requirements can ask the hoard to amend the Code and fee
schedule , " it appears that the Director has done so , on his own!
The Code says that "any person" may appeal "an administrative action
taken by any officer of this County. " .But iiir. riarvey B . Bra--don
says that "if' the issues were important enouh to others the
4i100 could have been raised . " It appears that "others" are more
important that the individual ri-,hts specified in the Code .
So important , that a LIQ is put in the. record about this indian and
used to restrict the apk;eai rights of another .indian person .
The fee sheet lists iw FEE nE-,4UI z.ivizNTS for sendinga .reconsideration
to the Board or elannin Commission. but when wr. Garvey L . Bragdon
refused to process 2 reconsiderations without a 9,100 fee , in effect,
he amended the fee requirements and enforced a ,p100 fee which did
not officially exist!
The Native American rieritage Preservation rro ject finds that
ivir. riarvey E . nra ;don illegally restricted 2 valid appeals and
reconsiderations made oy- an Indian person. This is unconscionable ,
and such violations of the State and US Constitution maxe the permit
and easement rights for .development invalid .
Sincerely,`
RECEIVED
Way e Roberson JUL 1 6 1986
Director of NAH?k DISTRIBUTION
✓ PHil BATCHELOR
bard Members "I 4018 of SUIERVIs Rs
--_ County Administrator C M osrA o.
l411 422, alth Services
. Community Development
Pub!;*Works
-1,z OW-4 Ccur,:y Counsel .
l
Community Development Contra Costa County
ZONING ADMINISTRATOR MEETING
Monday, September 9, 1985 - 9:30 a.m.
Agenda Item #7
FAMILY STATIONS, INC. (Applicant) KNOX LA RUE/STATE OF CALIFORNIA (Owners) (2085-85):
I. INTRODUCTION:
This is a request to amend a previous land use permit to allow,, a new television tower and the
replacement of an existing equipment structure with a new structure on an existing communications
site on the north peak of Mt. Diablo.
H. RECOMMENDATION: Approve with conditions.
III. GENERAL INFORMATION:
A. General Plan: Major Open Space.
B. Zoning: General Agriculture (A-2).
C. CEQA Status: Conditional Negative Declaration (see attached).
D. Related Actions: In 1975 the County received an application for a land use permit (#2203-75) to
establish seven communication sites on the north peak of Mt. Diablo. An Environmental Impact
Report was prepared and public hearings conducted and in May of 1977 the permit was granted
allowing six towers and five equipment shelters on five sites. The permit required mandatory
periodic reviews.
Site 5 (the subject area) was specifically limited to "two guyed towers, not to exceed 90 feet
each and one 18' x 18' x 8' equipment shelter.
During the same time frame (1975-1977) the County reviewed and revised their policy on
communication facilities.
In January of 1983 there was a request approved subject to certain conditions which allowed a
television facility to occupy Site 6.
Also in January of 1983 the first required review was begun. Certain conditions of approval were
added and amended and subsequently appealed by Mr. La Rue to the Board of Supervisors at
which time additional alterations to the conditions were made. A copy of the final conditions is
attached.
August 18, 1985, a hearing was held before the County Planning' Commission to determine if
cause existed to revoke Mr. La Rue's land use permit for the communication facilities.
Ultimately the conditions were satisfied and the revocation action dropped.
2085-85 pg. 2
E. Site Description and Existing Land Use: The proposed alterations would be on Site 5 as indicated
on the attached locational map. Currently there are two existing towers and one building.
IV. STAFF CONSIDERATIONS:
A. Nature of Request: The applicant proposes to install a new 90 foot high guyed tower (136'feet to
top of highest antenna) remove one existing tower and the existing structure, stairs, etc. and
construct a new two level equipment structure.
B. Health Department: No comments.
C. Public Works Department: No comments.
D. State of California:
1. James Doyle, Supervisor Environmental Review Section (June 25, 1985): (Summary) The
subject site is in an area of great sensitivity and its environmental integrity must be
protected to the extent possible. The proposed building is larger than the existing approved
buliding at Site 5. The structure building should be no larger than necessary to house
equipment that can be reasonably accommodated by the two towers at Site 5. The
submitted botanical repoert and its recommendations will protect the rare, theatened and
sensitive plants on the site if scrupulously carried out, however the experience with
construction of the Channel 42 facilities demonstrated that no such assumption should be
made. A combination of fencing and surveillance should be required during construction. A
performance bond could be a substitute to the surveillance.
2. Department of Parks and Recreation, Jeffrey Anderson, Chief and Stuart Hong, Associate
Landscape Architect, Development Division July 22, and Aug. 5, 1985 . ' Complete
construction plans must be done by a State licensed architect and submitted to Department
of Parks and Recreation for approval. Compliance with Title 24 of the State Building Code
will be required.
A California Park and Recreation Facilities Bond 'Act of 1984 project proposes to study the
feasibility of a consolidation of all communication facilities on Mt. Diablo. This will be
done concurrently with the General Plan Study for the Park and funding has been scheduled
for the study in Fiscal Year 1985/86. The Department of Parks and Recreation feel it would
be preferable to delay this replacement (and expansion) and coordinate on the consolidation
study.
3. Department of Parks and Recreation, William Beat, District Superintendent, Diablo District:
July 26, 1985 Details on construction and protection of plants are unclear, as is the intent
for additional expansion on other sites by Mr. La Rue. Because of the untimelyness of the
application in consideration of the pending General Plan for Mt. Diablo and future
consolidation study it is requested that the County delay any action on this proposal for 30
months.
4. William S. Briner, Director, Department of Parks and Recreation (August 16, 1985): "Pend-
ing completion of the feasibility study, the equipment for the project site should be housed
in a temporary shelter, such as a trailer, which can easily be removed."
2085-85 pg. 3
5. Marvin Schwei ert Senior Architect, Department of Parks and Recreation (August 28,
1985 : Summary The proposed building, located in a draw conforming to contours,
supported on concrete piers to allow free flow of air and rainwater shows concern for
environmental values. The fire resistant, prefabricated, steel post and beam framing can be
delivered to the site for fabrication and can be relocated in the future if appropriate.
E. Archaeological Review:
1. Department of Anthropology, Sonoma State University: A cultural resource field study
- resulted in no identification of cultural resources and further study was not recommended
(July 30, 1985).
2. Cultural Resource Assessment, Peak and Associates, Inc.: "There are no sites, and no
further works is necessary. Ms. Loretta Allen, Executive Officer of the Native Amercian
Heritage Commission, was present during the survey and will solicit information regarding
Native California Indian concerns within the project area." (January 16, 1985).
3. Archaeological Field Inspection, Miley Holman: (Summary) Some Native Americans have
sought to have the archaeological significance of the mountain, including the spiritual
significance for the Native American Community assessed accurately. I have inspected this
portion of the north peak twice before to locate any archaeological materials which might
still be found there; the first two occasions were inspired by the pending construction of a
t.v. tower now in place. In both my earlier visits I and another archaeologist, Mr. George
Coles, failed to find any physical evidence of Native American usage of the mountain top.
My earlier inspections and the latest one conducted by me were done to locate any of the
typical archaelogical materials or features which might have survived, principally features
of stone.
My inspection of the tower area for the third time with the applicant and Mr. Wayne
Roberson , also did not reveal any indications of archaeological materials. Historic damage
has been considerable in the area of the proposed tower, and other than obvious historic
destruction, there was nothing noted which might have had any meaning to Native
Americans.
Archaeologists work in the realm of the physical, and are restricted by their training to
dealing with real items. Occasionally one is confronted with a desire to intrepret how
Native American peoples mixed with their environment and made use of it.. A place which
had or has spirtival meaning may be as important as a place which contains abundant
physical evidence of their use of the area. The Native American however, is absolutely
necessary in guiding the archaeologist in first the identification of such' areas, and their
ultimate interpretation to the non-Indian public. Requests for ethnohistorical research in
many cases are necessary for an adequate Cultural Resources Study. (April 18, 1985).
F. Planning Geologist: (Summary) For the recommendations of the Stuart Winchester report
required mitigations) to be effective, a bonded security firm should implement their observance.
G. In addition to the above, the Notice of Preparation for the Conditional Negative Declaration was
sent to the following (with no written response received):
1
2085-85 pg. 4
Department of Fish and Game
Native American Heritage Commission
American Indian Council, Inc.
American Indian Movement
Native Plant Society
Susan Watson
Save Mt. Diablo .
Countv Sheriff's Communications Division
1. Native American Heritage Commission (Sandra Tomlin) contacted staff on August 27th
requesting that transmit information directly to the Bay Miwoks and Northern Yokuts tribal
representatives. In addition the applicant contacted Ms. Tomlin in January, 1985, to discuss
the proposed project and has forwarded her letter to him of January 17th wherein she
suggested the need for additional market research and a suggestion that a number of small
stations with varied_formats and target areas may be more productive.
2. Save hit. Diablo (Bob Doyle and Susan Watson) has been involved with the subject application
since prior to its submittal. Written comments are expected and will be attached.
V. STAFF ANALYSIS:
A. Appropriateness of Use on Site: As indicated above, the goal of the County policy on
communications facilities encourages maximum utilization of existing and limited facilities.
Also, as indicated above by the State Architect, the proposed building is designed in a manner
which is most sensitive to the environment and allows for its relocation with the least damage to
the site possible. The proposal preserves to the greatest extent possible the existing flora and
fauna and utilizes (and improves) an existing site with the least visual impact.
B. Proposed Mitigation: The aC:)licant will be required to comply with the recommendations of the
biotic report done by Stewart Winchester. In addition an acceptable bonded security firm should
be required to insure observance of the recommendations.
C. Compliance with Ordinances/Policies/General Plan: Approval of this request would amend
Condition 3.(D) of the original permit to allow a larger, bulding on Site 5 than 18' x 18' x'81.
Compliance with all other conditions of LUP 2203-75 as revised by the Board of Supervisors will
be required including compliance with the mandatory periodic review to begin no later than May
1, 1986.
D. Discussion of Comments: The design and construction techniques of the proposed building could
be cz)nsidered temporary as it is a removeable building.
With regard to expansion, iVir. La Rue has indicated that Family Staticns, Inc. will occupy 34% of
the proposed floor area; present equipment at Site 5 will use 21%, 19% is for committed
custorners; 20% for commas areas such as stairs, halls and storage leaving 6% for future
expa_rision.
E. Genera! Discussion: All applicable conditions of LUP 2203-75 (attached for reference) have been
inccrporated into the recommended conditions of approval. The proposed use is consistent with
the intent of the County Con munications Policy, impacts the environment to the least extent
possible, allows for ultimate consolidation should the State establish such a program/facility and
upgrades an existing site.
VI. CONCLUSION:
Based on t:e staff report above, staff finds the request appropriate subject to attached conditions.
DE•plp°--:gip
Community Development Contra Costa County
ZONING ADMINISTRATOR MEETING
Monday, October 14, 1985 - 1:30 p.m.
Agenda Item #4
FAMILY STATIONS, INC. (Applicant) KNOX LA RUE (Owner) (2085-85):
1. INTRODUCTION:.
This is a request to amend a previous land use permit to allow a new television tower and
the replacement of an existing equipment structure on an existing communications site on
the north peak of Mt. Diablo.
II. RECOMMENDATION:
Staff finds the Negative Declaration appropriate and recommends that the project be
approved subject to the attached amended conditions.
III. BACKGROUND:
This application was originally heard and approved on September 9, 1985. The original
staff report submitted to the Zoning Administrator is attached. The review period for the
Negative Declaration however was not up until September 9, 1985. On that day we
received two letters which should have been considered prior to making a final
determination on the Negative Declaration or a decision on the project.
As a result, under the reconsideration procedures, staff requested at the September 30th
Zoning Administrator meeting that the Zoning Administrator rescind the previous decision
and set the application for a new public hearing October 14, 1985. Subsequently one
additional letter has been received in opposition to the project.
IV. CALIFORNIA ENVIRONMENTAL QUALITY ACT:
Staff recommends that the Zoning Administrator adopt a Negative Declaration and finds
that there will not be a significant effect on the environment as a result of the project.
The staff's initial study concludes that: "The proposed project is in an area which is
environmentally sensitive, contains rare plants and may have some spiritual significance
for native Amercian Indians. The State will soon begin a study which will consider the
feasibility of consolidating all communications uses into one facility. The project as
proposed would have extremely little impact on the long range views of the peak and
would improve the close range appearance. Attached is a list of conditions which will
adequately protect the existing vegetation and mitigate potential damage to aesthetic and
environmental values during construction, installation and operation of the proposed use.
Also oral interviews are to be conducted to determine any spiritual significance North
Peak may have to Native American Indians. The applicant must cooperate with the State
on a future study and its ultimate implementation regarding consolidation of all
communication facilities in the area."
2085-85 pg. 2
The comments regarding the Negative Declaration received from Ms. Sandra Tomlin on
9/9/85 include the question of timing given the pending consolidation study and the
testimony of Mabel McKay in 1983, regarding the sacred history, surface artifacts and
plants which are significant to the Indian culture. She has contended that an "in depth
archaeological study" is necessary to comply with Appendix G (j) of CEQA.
Comments regarding alleged programs to be broadcast, the applicant's financial situation
and the viability of the local television business are not pertinent to CEQA.
As noted in the initial study and the original staff report, the proposed improvements
would be located at an existing and previously improved communication site. The
Anthropology Department of Sonoma State University and the two submitted archaeo-
logical reports indicated and confirmed that there are no archaeological materials in the
vicinity of the proposed improvements. Subsequent to the preparation of the initial study
and the recommended mitigation for oral interviewed and the draft staff report and
recommended conditions of approval the Executive Assistant to the Native American
Heritage Commission was requested by the applicant to address these issues. His
conclusion was that "while I cannot conclusively state that no one has any concern about
this project, I must conclude that my efforts have not revealed anyone in the Indian
community show has any concerns of a spiritual nature other than..." that which was
expressed by Mable McKay at the public hearings in 1983. Although it is felt that this
specific project (i.e., the replacement of a building and twoer on an existing site) will not
have a significant effect on any archaeological site or the historical or cultural
significance of Mt. Diablo to the Native American Indians' staff is recommending
conditioning the project on the submittal of additional information on the spiritual
significance of the mountain. This information may be of value to the State in their
future General Plan for the Park and the mutual goals of ultimate consolidation. Staff
recommends that the condition requiring the additional studies be expanded to specifically
include oral interviews, identification of spiritual artifacts (i.e., healing rocks) and plant
materials. The report should be done by a qualified archaeologist with sufficient
knowledge and background in local Indian culture (or in collaboration with a qualified
resource person).
With regard to the appropriateness of considering this request in light of the pending
consolidation study, it has been determined that this proposed use would in no way hinder
or adversely affect that study or its ultimate implementation.
It should be noted however that there is sufficient available information regarding the
specific site indicating that no .artifacts of any type would be disturbed. Therefore the
project itself would not pose any environmental impacts and the report is required for
additional resource material for State and local long range planning for the park.
V. OBJECTIONS TO PROJECT:
In addition to the two letters ,mentioned above, a letter was received September 30th
objecting to the proposed project. The issues raised include the credibility of one of the
archaelogical reports, additional information regarding the significance of Mt. Diablo to
the native Amercian indians, numerous critisms of the hearings held in 1983 on a different
application and a summary of the preceived harmful effects which could be expected by
approving this application, including, 1) the desecration of the Native American religion
2085-85 pg. 3
by perpetuating a commercial business to propagate Christianity; 2) probable harm to the
public from propaganda from Taiwan; 3) harmful affects on gay issues; and 4) the harmful
effects of fundamentalism.
VI. CONCLUSION:
The policy established to guide decision-making relative to communication sites states as
its goal "to meet the present and future communications needs within Contra Costa
County while minimizing the visual and environmental impacts on the landscape".
The objectives of the policy include 1) to require demonstrable proof of need for new
sites, 2) to encourage maximum utilization and efficient use of limited sites, 3) to employ
disguising techiniques, 4) to support developments which maximize energy conservation
measures, and 5) to preserve existing flora and fauna.
The primary goal of the County, State Parks and Recreation and Save Mt. Diablo is to
consolidate all communications on Mt. Diablo into a single facility. This could allow for
the ultimate restoration of all of North Peak for environmental, cultural and/or spiritual
purposes. On an interim basis the previously approved communication sites are allowed to
remain and improve. The subject site has been carefully and environmentally sensitively
designed. Innovative conditions have been recommended to insure the protection of
existing flora and provide supplemental information which may be useful during long range
park planning.
The use of the subject site as proposed, given its unique characteristics, being existing,
developed and available pending conclusion of the consolidation studies, falls within the
goals and objectives of the Communication Policy. The conditions as recommended
adequately preserve the environmental integrity of the site as well as the future options
for restoration.
DE:plpalup
10/10/85
STATE OF CALIFORNIA GEORGE DEUKMEJIAN, Governor
NATIVE AMERICAN HERITAGE.CQMMISSION
915 Capitol Mall, Room 288
Sacramento, California 95814
(916) 322-7791 \�\'Cr b 1[ C%
September 6, 1985
Donna Endom
Contra Costa Planning Commission
County Administration Building, North Wing
P.O. Box 951
Martinez, CA 94553-0095
RE: FAMILY STATIONS INC.
TRANSMISSION FACILITY
NORTH PEAK, MT. .DIABLO
Dear Ms. Endom:
Pursuant to a request from Mr. Harold Camping, I researched our files and spoke
with various individuals in an effort to determine whether the Indian community
had any spiritual concerns regarding placement of the above transmission facility.
The individuals I spoke to who had something to say about the mountain were:
Bill Franklin, Commissioner NAHC; Grant Smith, former Commissioner NAHC;
Phil Galvan, Ohlone from Santa Clara; and Mable McKay, former Commissioner NAHC.
Everyone I spoke to referred me to Mable McKay, however, Ms. McKay would not
express her feelings or knowledge to me about the mountain or this project.Out
of necessity, I have concluded that Ms. Mc Kay' s concerns can be best expressed
by referring to a March 23, 1983 article in the Contra Costa Times, a copy of
which I have attached. According to the article, Ms. McKay stated:
". . .she had been told
years ago by an Indian
from Contra Costa County that religious
ceremonies and burials took place on Mt.
Diablo. "
While I cannot conclusively state no one has any concern about this project, . I
must conclude that my efforts have not revealed anyone in the Indian community
who has any concerns of _a spiritual nature other than what is stated above.
Please do not hesitate to contact me if I can be of any further assistance.
V y truly o —�
1
Jo arwin Smit
Execu ive Assistant
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CONTRA COSTA COUNTY
COMMUNITY DEVELOPMENT DEPARTMENT
TO: Board of Supervisors DATE: December 3, 1985
Attn: Jean Maglio, Chief Clerk
FROM: Anthony A. Dehaesus SUBJECT: Letter of Appeal of Sandra
Director of Community velo ent Tomlin of Zoning Administrator's
By: Harvey E. Bragdon approval of LUP 2085-85
On October 14, 1985, the Acting Zoning Administrator approved Land Use Permit 2085-85
subject to conditions. The land use permit allows the reuse of an existing tower site on
Mt. Diablo and, among other things, does not call for additional grading. An unsightly
corrugated iron building will be removed from the peak and replaced with a well designed
building located below the peak on an already excavated pad.
At the public hearing, in addition to the applicant, Susan Watson representing Save Mt.
Diablo spoke in favor and Ms. Tomlin in opposition. When I rendered my decision to
approve the application Ms. Tomlin asked if it would be possible to waive the appeal fee.
I told .her that only the Board could waive the fee and that she should request the waiver
from them. On October 24, 1985, Ms. Tomlin filed a letter with us requesting a
reconsideration/appeal but pleaded that she had no funds to pay the appeal fee. By this
time two Board meetings, October 15th and 22nd, had taken place at which a request for
waiver might have been considered and granted.' Ms. Tomlin also called individual
Supervisor's offices (McPeak and Powers) to seek advise. She also called Kathleen Nimr
(Chair of the Planning Commission).
On October 28th, under the provisions of the Ordinance Code and as Acting Zoning
Administrator I declined to reconsider the application and called Ms. Tomlin to so inform
her. She again pleaded no funds. We called Silvano Marchesi to ask if there were special-
circumstances such as provisions for Native Americans that would allow this fee waiver
automatically. He said that the code and county fee schedule were clear and that the fee
must be paid. He said that Ms. Tomlin could appeal, pay the fee and ask the Board to
refund the fee.
I called Ms. Tomlin and told her that the fee must be paid as part of the appeal process. I
also told her that the applicant had called and wished to continue with his project if there
was no valid appeal filed. Further I asked her if other Native Americans might join her in
paying the appeal fee and she said that they also could not afford the $100 fee or any
portion of it.
I understand her concern but no other Native American has expressed any concern. In
fact, Wayne Roberson, the Native Amercian who usually testifies was on the site with the
applicant and was satisfied with the proposal. The Save Mt. Diablo group supported the
application.
t_
- 2 -
I
-I think the letter dated November 27, 1985 is appealing a staff decision.that is probably
not appealable. The Ordinance Code and adopted fee schedule are clear as to what must
be done to appeal. If urther think:
a) that Ms. Tomlin was unable to meet the appeal requirements within the time
allowed by Code;
b) that Ms. Tomlin did have time to ask the Board for a waiver;
c) that if the issue were important enough to others that the $100 appeal fee could
have been raised;
d) that the applicant has every right to assume that his permit is valid - especially
since it was sent out several weeks after the appeal period had expired;
e) that the staff's decision to not process the appeal without first receiving the fee was
correct;
f) that the requirements of the Ordinance Code and fee schedule are not appealable
but that anyone waiting to modify such requirements can ask the Board to amend
the Code and fee schedule.
HEB:plpl3a
CONTRA COSTA COUNTY
COMMUNITY DEVELOPMENT DEPARTMENT
APPROVED PERMIT
APPLICANT: Family Stations APPLICATION NO. .. 2085-85
290 Hegenberger Road
Oakland, CA 94621 ASSESSOR'S PARCEL NO. 78-110-002
OWNER: / State of CA/Knox La Rue ZONING DISTRICT: A-2
2171 Ralph
Stockton, CA 95206 EFFECTIVE DATE: October 25, 1985
This matter not having been appealed-'.within the time prescribed by law, a permit for
a new television tower and replacement of existing equipment structure
is hereby granted, subject to the attached cXns
D AES
f omn 'it ev.'lopment
B
Br don Acting Zoning Administrator
Unless otherwise provided, THIS PERMIT WILL EXPIRE ONE YEAR frothe effective date,
if the use allowed by this permit is not established within that time.
PLEASE NOTE THE EFFECTIVE DATE, as no further notification will be sent by this office.
CONDITIONS OF APPROVAL FOR LAND USE PERMIT 2085-85:
1. This application is approved as per plans submitted with the application dated
received by the Community Development Department June 20, 1985 and amends Land
Use Permit #2203-75.
2. This permit is granted to Knox La Rue and heirs only and .is not transferable except
by acquisition by a public agency.
3. Prior of the issuance of any building permits or the commencement of any site work,
the applicant shall retain a qualified bonded security firm acceptable to the County
to insure the observance of Condition 4.
4. The applicant shall comply with the following:
A. All sensitive areas shall be flagged off to prohibit the movement of construction
technicians, equipment and debris through these zones. Failure to observe and
respect these areas may result in a delay in construction, prompted by a review
of the mitigations incorporated in the land use permit.
B. All existing towers and stubs, equipment sheds and foundations, stairway and
footings, conduit and wiring harnesses identified for removal on the north peak
contour and construction map shall be dismantled and disposed of, without
incurring additional damage and/or debris deposition on the site.
C. Additionally, debris from previous radio tower installations, now scattered
widely about north peak (Site 5) shall be collected and removed by a qualified
botanist. (Much of the debris is located on sensitive talus/rock outfall slopes
where rock sanicle and bitter root are located but not flagged off).
D. Precise location of tower pad, guy anchor sites, wiring conduit piping, access
road and equipment building piers and perimeters will be .surveyed and marked
simultaneously with approved designated walkways to each, in order to skirt
surrounding sensitive areas. Construction foremen and all supervisory personnel
will be expected to demonstrate the awareness appropriate to the continued
integrity of the site and instill these guidelines subsequently on all employees.
E. All rock outfall (excavation debris) from the tower pad construction will .be
directed down a formed wood chute to the road section nearest the pad itself
(S/SW direction from the peak). This debris will be placed on a site that is
mutually acceptable to the contractors and biologists involved. In addition, the
tower pad excavation site should be shielded from the surrounding areas by
plywood forms high enough to contain any rock blast/spray from jackhammering.
F. Only those plants approved and designated by flagging for removal shall be
dispatched. (Currently only five Sapling Digger Pine Trees are to be removed to
make way for the communications equipment building). All Juniper and Oak
specimens are to be saved.
" 2085-85 pg. 2
5. All external surfaces (excluding the tower itself) shall be appropriately colored to
blend with the surroundings. Included: Radio communications building and conduit
from building to tower.
6. All power lines, generators, transformers, etc. are subject to review and approval by
the Zoning Administrator prior to placement.
7. Within six months of the effective. date of this permit the applicant shall submit a
report to the County for review as to adequacy addressing the spiritual significance
of Mt. Diablo. The report shall be prepared by a qualified archaeologist, shall include
a summary of available information including oral interviews and shall identify
spiritual artifacts and plants. The report shall be made available to the State
Department of Parks and Recreation for use in their long range General Plan for the
Park.
8. The applicant shall agree in writing to cooperate with the State in the consolidation
study.
9. The applicant shall obtain any necessary permits and approval from the County
Building Inspection Department and the Grading Division of the Building Inspection
Department. State Parks & Recreation Department shall review and approve any
request for a building permit prior to submittal to Contra Costa County.
10. Any expansion of the facilities beyond the limits of this permit will require the filing
of a new land use permit.
11. This permit shall expire June 1, 1997, and shall be reviewed every five years at public
hearing before the County Planning Commission for the prupose of determining the
need to add, delete or change conditions. The next review shall occur in June 1986,
and shall be initiated by the permittees submitting statements as to continued
compliance with the conditions of approval to the County Community Development
Department no later than May 1, 1986. The statement shall be accompanied by a
complete set of dated photographs of each permittee's improvements.
12. The applicant shall submit prior to any construction, details of all facilities on the
site including:
A. Size of building (including total square footage).
B. Existing and anticipated maximum height of antennas on both towers..
C. Existing and anticipated number and size of microwave dishes on both towers.
D. Size of tower base and footing.
E. Width of tower face.
F. Spread, location and base/footing of guys with dimensions.
13. All structures shall be removed upon termination of this use. A qualified biolo-
gist/botanist, or resource specialist shall supervise the removal of all structure.
14. The conditions contained herein shall be acceptable by the permittees and their
agents, lessees, assignees, survivors or successors for continuing obligation.
2085-85 pg. 3
15. The site shall be maintained in an orderly manner of the general public health, safety
and welfare subject to review by the Zoning Administrator.
16. Any new transmitting and receiving antennas, including microwave dishes and power
lines, may only be located on approved facilities. No such equipment shall at any
time be located even temporarily on building, poles, or vegetation except during an
emergency for the purpose of restoring communcation services. Should such an
emergency occur, the permittee shall advise the Community Development Depart-
ment by letter stating the nature of the emergency, the nature of the temporary
relocation and the naticipated repair time.
17. Antenna height shall be limited to a maximum 46 feet above tower height.
18. The . permittee(s) shall comply with the recommendations of the biotic report
submitted December 7, 1982, as follows:
A. No construction of site work shall occur without supervision by a qualified
botanist/biologist.
B. Any proposed construction access routes or areas shall be clearly staked and
approved by the supervisor required by 8,(A), above.
19. Non-compliance with any condition by a permittee may be cause to revoke this
permit as related to the non-conforming permittee only, after due notice and public
hearing.
20. The area around all facilities shall be kept free of all extraneous material. Clearing
of the sites shall only be allowed to the degree necessary to prevent fire hazard and
shall be subject to Condition 4 and 18 above.
21. Prior to any site work or the issuance of any building permit the applicant shall
submit a detailed construction program to Save Mt. Diablo and the State Parks and
Recreation Department for review and to the Zoning Administrator for final review
and approval. Equipment shall be brought to the site, to the extent possible, by
helicopter.
22. A detailed report on the equipment now existing at the shelter at Site 5 shall be
submitted by the applicant to the Communication engineers of the State of California
in order to determine the technical capacity and level of current utilization of.the
equipment. The technical capacity shall determine the full capacity of the site and
shall be used for the level of utilization for the consolidation. Any additional non-
television capacity created by the larger building shall be deemed superfluous to the
immediate needs. The State may be compensated for any utilization of the capacity
superfluous to the immediate needs at a rate to be determined by the State and to be
applied to the costs of removal to the consolidated facility.
Regarding any conflicts between this condition and agreements between the ease-
ment holder and the State, this conditions shall be subordinate.
DE:plp9alup
9/4/85
Revised
9/9/85
Revised
10/10/85
Revised
10/14/85
which evidently does not include the arguments that were given in that document.
Thank you.
MR. BRAGDON: Is there anyone else who wishes to speak in objection to this project?
The applicant has the right of rebuttal .
MR. CAMPING: When we began to work with the Planning Commission almost a year ago
on this project, one of our first meetings---and we had several meetings---with the
State as well as with the Planning Commission and this Donna Endom of the Planning
Commission very wisely I believe encouraged us to do very careful preliminary work
before we put in an application. We realize from the problems that had arisen a
couple of 'years ago with Channel 42 that -there was the potential for misunderstand-
ings and doing things in an incorrect way and, therefore, I have during this past
year been very, very sensitive to that admonishion and that guidence and tried to
think in terms of who might be interested. One of the things we were asked to do
was' to get an archeological report and I first of all called the Native American
Heritage Commission in Sacramento and met with them and they recommended Miss Melinda
Peake as the archeologist and subsequently I met with Miss Peake and Miss Allen of
the Native American Heritage Commission on. the mountain and actually went over, walked
the site in detail showing exactly what our project was going to be.
Subsequently, in an effort to make sure that we were really covering the bases, I had
conversations with Miss Tomlinson to gether with Wayne Roberson of her organization
and they were not at all happy with the fact that Miss Peake was the archeologist
on the project and so I asked them who they recommended and they recommended a Mr.
Holeman and so I called him and arranged for him to come to the site together with
Mr—Wayne Roberson---In other words, I did not want to dodge any questions or issues .
I wanted to really face people who might have any question about this and we went
over the site very carefully together.
Now, Mr. Wayne Roberson after I carefully explained the project to him and, of course
the nice thing about this project is where as it permits us to build a TV facility
and at the same time, it also removes a difficult situation up here because of an
existing sheet metal building on North Peak and is quite an eyesore from every vant-
age point and we found a place to put the new building where it would be hidden and
.would really improve the site considerably over what it is today.
Mr. Roberson, I could see was quite familiar with what we wanted to do and came to
the conclusion or made the statement that whatever problems this new construction
might develop, they would not be in excess of what was already there---whatever
desecration that had happened to north peak, our program of construction would not
make it any worse than it was and, therefore, he said I 'm ready to sign it off or
I am ready to give it approval to this.
Therefore, I have to admit that I was quite amazed when I received information that
Miss Tomlinson was quite disturbed about this because I really had thought I had
covered all the bases . Again, in speaking to the American Native Heritage Commiss-
ion, I repeatedly asked them to get whatever information they could help with and
the newspaper article by Miss McKay just happened to be what was available. They
were unable to take with Miss McKay. She did not want to talk with them. So,
that is where we stand.
I really believe that we have been exceedingly careful.;. exceedingly diligent in try-
ing to be fair and honorable in all of this procedure and we are ready to proceed
based on the Planning Staff recommendation.
I still have a question about Condition 1#22.
MR. BRAGDON: Donna, . do you want to respond? Mrs. Watson has commented that it was
fere with any previous contractural arrangements. I feel that the---I agree with
Ms. Tomlhns'oh 'about the sacredness of the mountain and I feel that there are a lot
of factors that modern life changes things and I hope that ultimately the consoli-
dation will take place and the mountain will be restored as much as possible the
way it was centuries ago.
MS. TOMLINSON: May I ask for clarification at this point? First of all , is this
your official findings (rest of words inaudible to transcriber) .
MR . BRAGDON: Yes.
MS. TOMLINSON: Secondly, you stated that all of the items on the agenda---had a 10
day period before they were- wbefore an appeal could be made or something---
MR . BRAGDON: Right. All decisions made by the Zoning Administrator or appealable
to the County Planning Commission within 10 days which will be 5 o' clock October
24th.
MS. TOMLINSON: Does that mean there will not be any permit issued until that date?
MR. BRAGDON: Right. If an appeal is filed by 5 o' clock on that date, no permit will
be issued.
MS. TOMLINSON: October 24th?
MR . BRAGDON: Yes, at 5 o'clock.
MS. TOMLINSON: I was lead to belive something else.
MR. BRAGDON: No, no, all decisions are appealable and decisions of the Commission
can be appealed to the Board of Supervisors .
MS. TOMLINSON: In the appeal process, it would go to the Planning Commission?
MR. BRAGDON: Yes, the County Planning Commission.
MS. TOMLINSON: What fee is there for that?
MR . BRAGDON: What's the appeal fee?
MR. TURNER: I 'm pretty sure it's $100.
MR. BRAGDON: Yes, I think it's $100.
MS. TOMLINSON: Is there any way that we can (rest of statement inaudible to transcriber) .
MR. BRAGDON: No. There's no provision for waiving that. You can request the Board of
Supervisors to waive it if you wish; but, there's no provision in our Code to waive.
the fee.
MS. TOMLINSON: Of course, it may take them longer to review that request before we
can file our appeal .
MR. BRAGDON: The way it's done, occasionally a governmental agency will ask for a
waiver of the fee and what happens is that they pay the fee and ultimately as the
machinery of government goes, sometimes it gets waived and some times it doesn't;
but, for the most part, I 'm not aware of very many waivers of the fee.
So, agenda Item #4 is approved subject to the conditions and the one modification.
(No further discussion on this item) .
Ancbaeotooical CorlsrAtanfs
SINCE THE BEGINNING"
3615 FOLSOM ST. SAN FRANCISCO,
CALIFORNIA 94.110 41S15_'5'0-79_R(5
-. -
Harold Camping
Family Stations Inc.
290 Hegenberger Road .
Oakland, CA 94621 April 18, 191_§� =+
�ra
Dear Mr. Camping,
RE: ARCHAEOLOGICAL FIELD INSPECTION OF THE NORTH PEAK RADIO TOWER AND
STRUCTURE SITE, CONTRA COSTA COUNTY, CALIFORNIA
At the request of Mr. Wayne Roberson, a concerned Native American
and yourself, I conducted a field inspection of the above referenced
project area in Contra Costa County, California. The following is a
summary of my findings. .
This portion .of Mt. Diablo has been the center of some controversy
for several years now, while Mr. Roberson and other Native Americans have
sought to have the archaeological significance of the mountain., and more
importantly, the spiritual significance for the Native American Community
assessed -accurately. I have inspected this portion of the north peak twice
before our visit together to locate any archaeological materials which
might still be found there; the first two occasions were inspired by the
pending construction of a t.v. tower now in place. In both my earlier visits
I and another archaeologist, Mr. George Coles, failed to find any physical
evidence of Native American usage of the mountain top.
I must stress however that my earlier inspections and the latest one
conducted by me were done to locate any of. the typical. archaeological
materials or features which might have survived the ravages of the historic
alteration of the peak; principally features of stone. I believe that Mr.
Roberson has a legitimate point when tie has asked that interviews be done
with living Native Americana, especially members of the Miwok group, who
migl:L- have used or ,night still use the mountain top for religious purposes.
The kind of evidence of use of the peak might take a form that archaeologists
would not readily recognize. Certainly the testimony of archaeologists working
in areas of Northern California indicate that traditional training has not
prepared them for the kind of remains native Americans now leave near shrines,
for example.
In January of 1985, Ms. Melinda Peak visited the construction area to
conduct yet another field inspection, accompanied by Ms. Loretta ellen of
C,"S V
the Native American Heritage Commission. In her report she stated that she
did not see any signs of aboriginal use of the peak area, and that Ms.
Allen indicated that she would communicate with other Native Americans to
determine if the peak was or is an area of importance to them. If she in
fact did so, the concerns of Mr. Roberson would be vindicated.
In closing, my inspection of the tower area for the third time in
your presence and that. of Mr. Roberson also did not reveal any indicatioLis—
of archaeological materials. Historic damage.has been considorablu in the
area you plan to place your tower, and other than obvious historic des-
there was nothing..noted by me which might have had any meaning
to Native Americans. I would have felt more confident about saying this
had there been some feed-back from Ms. Allen concerning her interviews with
local Native Americans.
Lastly, archaeologists.are workers in the realm of the physical, and
are restricted by their training to dealing with real items. We do, however,
cross over when confronted with our desire to interpret how Native American
peoples mixed with their environment and made use of it. A place which had
or has spiritual meaning to them is every bit as important as a place which
contains abundant physical evidence of their use of the area. The Native
American however, is absolutely necessary in guiding the archaeologist in
first the identification of such areas, and their ultimate interpretation
to the non-Indian public. Requests for ethnohistorical research in many
cases are the only method of assuring that a Cultural Resources Study for
an gIR has been adequately done.
Sincerely,
Miley Paul Holman
Cft' munit Contra `� Harvey E. Bragdon
Director of Community Development
Development Costa
Deoartment:�F, County
County Administration Building, North Wing
P.O. Box 951
Martinez,California 94553-0095
372-2021
Phone:
August 4, 1986
Harold Camping
Family Radio
2090 Hegenberger Road
Oakland,, CA 94621
Dear Mr. Camping
This is to advise you that we have received Miley Holman's July 23 letter
regarding the ethnohistorical research concerning the use of Mt. Diablo and
the required report.
As you are aware, the report was to have been done within 6 months of the
effective date of your permit. However, because of the unique nature of
the report and time availability of qualified researchers we will acknow-
ledge your good faith effort in retaining Holman and urge you to expedite
the submittal of this report.
Mr. Holam indicates the report should be done by late fall . We will expect
to receive. it no later than November 1, 1986. In addition, we request that
you keep us informed on the status of the research and report on a regular
basis as a part of your construction progress reports.
Should you have any further questions on this matter, please contact
Mr. Dennis Barry of our office at 372-2024.
Si rely yours,
Donna Allen
Project Planner
DA/aa
cc. Miley Holman
1tr. IV