Law Offices Of Schuster & Associates
July 1, 2003
Ms. Judith Fries, Esq./Principal Deputy County Counsel Public Works Division County of Los Angeles
Re: Agua Dulce Airpark Ranch
Dear Ms. Fries:
Please be advised that my office represents Ms. Park Overall and certain persons concerned with the operation, use and development of the airport in Agua Dulce, California, commonly referenced as the "Agua Dulce Airpark Ranch" (the "Airpark").
Unfortunately, and while I had hoped to discuss certain matters with you via telephone, you failed to respond to any of the messages I left for you or the specific requests for return telephone calls left on June 12 or June 16, 2003. For this reason, I have commenced communication in writing, although I suspect this will create an embarrassing record for the County, whose counselors have issued conflicting opinions regarding the Special Use Permits for the Agua Dulce airport.
As you may recall, you were contacted by Ms. Joanne Swanson and Mr. Nolan Henderson, acting co-chairpersons of the Agua Dulce Civic Association Airport Committee during or about August 4, 2002 regarding the zoning permits for the Airpark. After review, you issued an opinion stating that Special Use Permit 1570 lapsed and that Special Use Permit 1404 was in effect. Unfortunately, no basis was provided for that opinion, which conflicted with (and appears to be a 180° turnabout from) the opinion of county counsel Joe Ben Hudgens.
Mr. Hudgens opined on October 29, 1968 that: "By the terms of the original special use permit, the permit was to expire on September 1, 1968. There was no modification of this condition in Special Permit Case No. 1404-(5). Indeed, the order of the Regional Planning Commission in the latter proceeding specifically reaffirmed the expiration date by stating:
‘All other conditions of this case shall be complied with as approved by the Regional Planning Commission.’
Therefore, the special use permit for the operation of Agua Dulce Airport has now expired. If the airport is to continue its activities under private control, it must apply for a new permit."
Additionally, the opinion issued in September 25, 2000 apparently failed to regard Title 22 Los Angeles County Code provisions regarding Special Use Permits which provided, in relevant part, that such permits are void if there was discontinuance of use. I realize that Ms. Swanson’s and Mr. Henderson’s letter may not have called it to your attention, but the Airpark was closed for several years, thereby voiding the permit (which my clients contend previously expired in accordance with the earlier county counsel opinion).
As you may know, residents have for many years been concerned with flights over their property and the nuisance created by low flying aircraft and airport operations. Residents previously prevailed in litigation for nuisance which, as you know, was excluded from the provisions of special use permits (meaning, specifically, that issuance of a special use permit did not grant its users the right to create or engage in any activity creating a nuisance).
Recently, there have been allegations of "dive-bombing" and other tactics intended to either retaliate or harass residents. While such activity is being addressed with the FAA, and while nuisance claims may be addressed through lawful process, it would appear that the various zoning and permit concerns are properly directed to your office, the Regional Planning Commission and code enforcement.
Even assuming, arguendo only, there could be a valid permit for operation of an airport in Agua Dulce, the only permit language relates to operations of an airport, where the expressed policy statement is:
… Agua Dulce Airport is recognized on the Land Use Policy Map as a low intensity airport given over primarily to transient use of aircraft on recreational flights. It is the intent of this Plan that neither the intensity of development nor the level of use of the Airport shall be permitted to increase to the point where the community is adversely affected because of noise, pollution, traffic or aircraft hazards or problems.
Recent and planned Airpark operations (advertised on Owner Barry Kirshner’s Airpark website and in other places) boast of marathons, rodeos, truck exhibits, motorcycle shows, fireworks shows, and a "beer fest" and other events which appear to have no nexus to permitted land use. I am dismissing, for the moment, the obvious safety concerns of mixing a fly-in community with alcohol or using fireworks in an area with such a significant potential for fire disaster. A flyer Mr. Kirshner apparently mailed boasts of club membership to include "pool use from 7 a.m. to 9 p.m. 7 days a week, Jacuzzi, Club House, Basketball, Sand Volleyball [and a] Riding Arena." My clients contend Mr. Kirshner has flagrantly disregarded the limitations of the prior-issued permits and provisions which preclude him from violating any condition thereof as well as any statutes, laws or ordinances (acts which void the permits).
In the Agua Dulce town council meeting held June 25, 2003, for example, Mr. Kirshner admitted he presently has 35 aircraft based at the Airpark; the prior-issued permit was limited to 20 aircraft and Regional Planning Commission documents, including those relating to the proceedings for Special Permit 1570, show that expansion was precluded and the 20 aircraft limit was retained.
It astounds residents that the Office of County Counsel would provide conflicting opinions or indicate that it was unable to earlier ascertain which conditions of Special Permit 1352 survived amendment by Special Permit 1404 or, more importantly, that your office would permit flagrant violations of expressed land use policy. Perhaps you and I should revisit the text of Special Permit 1404 stating that: "All other conditions of this case (reference: Special Permit 1352) shall be complied with as approved by the Regional Planning Commission," as this operative text appears (along with the RPC proceeding notes) to demonstrate amendment rather than replacement. As I am sure you will conclude, if 1404 acted as an amendment or in the event the closure of the airport voided the Special Permit, there is no Special Permit in force for the Airpark, which would under the set of circumstances presented appear as a commercial renegade, profiting at the expense of others (and, as addressed by others separately, the potential endangerment of school children).
My clients hereby request the specific authority you relied upon (if any) for the opinion letter issued September 25, 2000 inclusive of any authority you contend contradicts the substantive basis for the opinion earlier issued by Mr. Hudgens of the Office of County Counsel. Additionally, my clients request immediate enforcement of the limitations and provisions of any Special Permit or other permit you contend may be in force, as well as the expressed provisions of the land use policy statement. Failure or refusal to cooperate in this matter and the County’s prior involvement may be seen as tantamount to creation of public nuisance or negligence in the failure to perform applicable duties of due care and enforcement.
A separate letter was sent to Mr. Kirshner addressing these and other issues; a copy is provided for your review. I have not addressed the requirement for relocation of the Agua Dulce Elementary school, which may be required where airport development occurred.
In closing, please note that this letter is written under a reservation of all rights and remedies and addresses only those limited, specific concerns as and to the extent noted herein; it does not and is not intended to constitute a comprehensive history or list of concerns facing the community or my clients.
Correspondence and document submission regarding this matter should be directed to my Long Beach, California address.
Thank you for your attention hereto.
Sincerely yours,
Jeremy G. Schuster