In an unpublished decision, McMillan v. County of Siskiyou (Nov. 27, 2012) 2012 Cal. App. Unpub. LEXIS 8596, the Third District Court of Appeal on rehearing reversed its initial opinion and required the County of Siskiyou to hold a public adjudicatory proceeding to determine whether Butte Creek Minerals (BCM) has a vested right to continue mining the Timberhitch Quarry. BCM’s predecessor entity mined the quarry prior to county adoption of a permitting requirement for mining, and prior to enactment of the Surface Mining and Reclamation Act (SMARA) (Pub. Resources Code, § 2770 et seq.). The court held that these facts constituted a sufficient basis for BCM to assert that it had a vested right to mine at the quarry.
The court also held that pursuant to the diminishing asset doctrine, BCM may have a vested right to expand the quarry. Generally, a nonconforming land use may continue only if it is similar to the use existing when the land use regulation became effective. However, applying this rule to mining is problematic because, unlike other uses that operate within an existing structure or boundary, mining anticipates expansion into new areas of the property as the resources are excavated. In Hansen Brothers Enterprises, Inc. v. Board of Supervisors (1996) 12 Cal.4th 533, 553, the California Supreme Court held that the diminishing asset doctrine creates “an exception to the rule banning expansion of a nonconforming use that is specific to mining enterprises.” Under the diminishing asset doctrine, “[w]hen there is objective evidence of the owner’s intent to expand a mining operation, and that intent existed at the time of the zoning change, the use may expand into the contemplated area.” (Ibid.) Therefore, the court found the BCM may have a vested right both to mine and to expand their quarry.
The court found that pursuant to SMARA, the county was required to hold a public adjudicatory hearing to determine if, and to what extent, BCM had a vested right to mine. The court noted that a number of factual determinations were required by the county in this regard. Importantly, Public Resources Code section 2770 only permits a vested right to continue if it has not been wholly discontinued for over one year. While the court acknowledged that evidence suggested the mining operation may have been discontinued in 2002, it was up to the county to consider this question in the first instance. Therefore, the court was required to reverse its opinion and remand to the county for further proceedings.
Written By: Tina Thomas and Christopher Butcher
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