Quarry: Operating Permit Amendment

In July 2013, the Marin County Board of Supervisors approved a request by the San Rafael Rock Quarry (SRRQ) to amend SRRQ’s quarrying permit (see the full Quarry Permit Amendment text). The change to the permit allowed the SRRQ to import asphalt road grindings (basically, torn up asphalt resulting from road repaving) so that the grindings can be recycled into new road asphalt. (See additional document related to this matter in the Library/Archives SRRQ Permit Amendment Index section.)

In October 2013, the Coalition challenged the County’s approval of the permit change on basis that the change constituted an impermissible expansion of the nonconforming use associated with the Quarry site. Our petition simply asks the Court to impose again its own 2004 ban of the practice and force the County to respect that prior decision, as it did in 2010 when it inserted the ban in the quarry’s permit.

On Monday, September 19, 2016, Judge Paul M. Haakenson of the Superior Court of California, County of Marin, issued his decision in the case of Point San Pedro Road Coalition v. County of Marin and the San Rafael Rock Quarry (see the full text of the court decision here). He ruled that the County’s approval in 2013, and again in 2015, of a quarrying permit amendment allowing the Quarry to import used asphalt for recycling was an improper expansion of the Quarry’s nonconforming use. The Coalition had asked the court to overturn that approval, and the court agreed.

To understand the ruling, it is necessary to understand some background about the San Rafael Rock Quarry and its quarry zoning and permit history.

1982 – 2001: The Nonconforming Use

In 1982, the San Rafael Rock Quarry was rezoned from heavy industrial to residential/commercial given the Quarry’s then-anticipated closure and proposed new land use. As a result, quarrying activity became a “legal nonconforming use,” meaning that the property could be used as it was at the time of rezoning, but its use could not be expanded or intensified. Nonconforming uses are effectively frozen until they cease, so as to protect other developments that spring up around them in anticipation of the use’s cessation. The Quarry owners did not object to the zoning change in 1982, which was based on their stated expectation at that time that the Quarry would likely be shut down by the early 1990s. The San Rafael Rock Quarry property is within County jurisdiction, but the surrounding neighborhoods had been annexed to the City of San Rafael. Anticipating the Quarry’s closure in the 1990s, new homes were entitled by the City and built in close proximity to the Quarry.

In the later 1980s, the Dutra Corporation purchased the site, and both expanded the Quarry’s life expectancy based on new rock exploration and greatly increased the intensity of operations, largely unrestrained by the few conditions contained in its archaic quarrying permit. The County authorities initially made few efforts to limit the Quarry’s activities within the constraints of either its permit or its status as a non-conforming use since 1982.

2001 -2004: The 2001 Lawsuit

In 2001, the Coalition joined by several others, including the State and County, sued the Quarry for conducting mining operations exceeding its nonconforming use. That case was decided in 2004 by Judge John Sutro. One of the principle issues litigated in that case was the scope of the Quarry’s nonconforming use; that is, what was the scope of the Quarry’s operations back in 1982 when the site was rezoned? To the extent the Quarry’s current operations did not exceed the scope of the Quarry’s operations in 1982, it could keep operating as a legal, nonconforming use. Any Quarry operations exceeding the 1982 scope were illegal nonconforming uses, and were thus prohibited.

Determining if Quarry operations between 1983-93 exceeded the Quarry’s uses in 1982 required an analysis of what activities the Quarry was engaged in during 1982. One of many findings made by Judge Sutro was that no evidence existed that the Quarry had previously imported used asphalt for recycling. In fact, the Quarry expressly admitted that.

Therefore, one of Judge Sutro’s rulings in his 2004 decision was that the Quarry was prohibited and enjoined from importing such material because allowing it would impermissibly represent an intensification or expansion of the Quarry’s nonconforming use, in violation of the Marin County Zoning Code.

2004-2010: The Amended Reclamation Plan and Amended Operating Permit

As a result of the 2004 decision, the Quarry requested that the County issue it an amended quarrying permit. For the next six years there were a number of public hearings and an extensive environmental review. The Environmental Impact Report, completed in 2009, found significant impacts related to Land Use and Planning, Air Quality, and Noise that could not be mitigated including increased risk of cancer for residents in the vicinity of the quarry and Point San Pedro Road and incompatibility with residential and recreational land uses. The County Supervisors, finding the quarry was an important source of materials, concluded that economic and other considerations outweighed the health of the community and the incompatibility of an industrial operation in a residential area. Thus, they agreed to issue the new permit. The Coalition fought for and won many reasonable modifications in permit conditions. However, there was no reduction in the number of maximum truck trips from those in the temporary conditions.

In 2010 the County issued an amended quarrying permit to the Quarry. The new permit contained many restrictions on how the Quarry could operate, many of those having to do with noise and dust control, but others (such as a restriction on annual production) were intended to ensure that the Quarry operated within the scope of its nonconforming use. One of those restrictions was a prohibition on the importation of used asphalt for recycling. The County approved both the new reclamation plan and permit in 2010. The Coalition agreed not to challenge the approval only when the County and Quarry agreed to 172 operating conditions (including the prohibition on importing asphalt for recycling) and promised to repave Pt. San Pedro Rd with noise mitigating asphalt to reduce the noise from Quarry-related trucks.

Since the amended quarrying permit was issued in 2010, many of the problems and issues created by Quarry operations that prompted the 2001 lawsuit have greatly lessened. Mining hours are shorter, blasts are fewer, there have been fewer truck trips in and out of the site, and overall noise created by mining operations is much reduced. That reduction is partly due to the amended permit restrictions, and partly due to lower demand for the Quarry’s products.

2013: Quarry Asks County Supervisors to Amend the Permit

In 2013, at the Quarry’s request, and despite strong objections from the Coalition, the Marin County Board of Supervisors approved by a 5-0 vote a second amendment to the Quarry’s permit that eliminated, for two years, the prohibition on the importation of used asphalt for recycling, and expressly allowed the Quarry to do so. The Coalition immediately sued the County for approving this illegal permit amendment, which both violated Judge Sutro’s 2004 injunction expressly prohibiting this activity and otherwise allowed the expansion of the Quarry’s nonconforming use in violation of the Marin County Zoning Code. After several years of litigating County procedural objections to the 2013 permit amendment, the Coalition sued again when the County approved an extension of the second amendment in 2015, again by a 5-0 vote. The court’s September 19, 2016 decision addressed the 2015 extension, but applied to the County’s illegal action in 2013 as well.

2016: Court Finds Amendment An Illegal Expansion of Quarry Nonconforming Use

The County granted the second permit amendment on the basis that Judge Sutro’s order prohibiting the importation of recycled material applied only until the administrative process that established the updated reclamation plan and permit was complete. Whether the permit could be amended to allow the importation of used asphalt for recycling was, according to the County, a matter for the County to decide in its discretion.

The Court disagreed, stating that Judge Sutro determined in 2004 that the importation of recycled material was outside the scope of the Quarry’s legal nonconforming use, and that the County had no discretion to override that determination. In fact, the Court found that there was “no substantial evidence whatsoever” to support the findings of the Board of Supervisors that were used as support for the permit change, and that:

“[t]he recycling process was a new process and an expansion and intensification of the [Quarry’s] existing, nonconforming industrial use of its property, which is zoned for commercial/residential use only, thereby undermining the fundamental purpose of [Marin County’s zoning law] and related California common law, which expressly prohibits the expansion or intensification of all nonconforming uses.”

Conclusion: The Point San Pedro Road Coalition’s Objective in this Suit

Why did the Coalition sue over this matter? Why object to the rather sensible-sounding practice of recycling used asphalt? The answer is, in part, contained in Judge Haakenson’s opinion:

“The reach of [the Quarry] and the County’s present position [that importing recycled asphalt was allowable] would leave the matter of conditions for Quarry’s operation entirely open to continuing rounds of litigation. The reach of [Quarry] and County’s present position potentially extends beyond the subject of asphalt recycling. … If the court were to accept County and [Quarry’s] position here, no prior order would prevent [the Quarry] from requesting and County from adopting another amendment to allow importation of [for example] gravel.”

Judge Haakenson went on to quote a landmark California nonconforming use case (Hansen Brothers Enterprises, Inc. v. Board of Supervisors):

“The ultimate purpose of zoning is … to reduce all nonconforming uses within the zone to conformity as speedily as is consistent with proper safeguards for the interests of those affected. We have recognized that, given this purpose, courts should follow a strict policy against extension or expansion of those uses.”

Historically, the County has been an unreliable regulator of the Quarry. That was a big reason that the 2001 lawsuit was filed in the first place. The Coalition had hoped that, after approval of the amended permit in 2010, the County would provide more vigilant oversight of the Quarry, since many of the legal issues proscribing the Quarry’s activities had been decided in court.

The Coalition was thus dismayed by the County in 2013 when it approved the Quarry’s request to amend its permit to allow it to import used asphalt. We gave a thorough presentation to the Board making many of the same arguments that would later be made in this lawsuit. The County paid little to no attention to our warning that disregarding Judge Sutro’s findings was illegal, and that any attempt to allow the Quarry to expand its nonconforming use would be challenged, and quite likely successfully. We were ultimately proven correct.

We hope that this decision will provide new impetus to the County and its staff to hold the Quarry to operating within its lawful constraints, and to act in accordance with California law and the interests of the residents of the Point San Pedro Road corridor.