Quarry Road is Private, Supervisors Declare, But Courts May Decide Issue

Permanente Road, a former wagon trail winding up into the foothills above Cupertino and Los Altos, is private, for use by Lehigh Southwest Cement only, the Santa Clara County Board of Supervisors voted Tuesday morning.

About 15 residents from Cupertino, Los Altos and Los Altos Hills implored the supervisors to either deny or postpone the request.

“The board is acting as a wholly-owned subsidiary of Lehigh,” accused Richard Adler, an opponent who is on the board of a citizen's group called BACE, when he addressed the supervisors.

The board’s unanimous vote Tuesday morning was expected by residents opposing the move, and because of supervisors' past decisions, most expressed cynicism that the current Board of Supervisors would ever listen to their requests for more regulation over Lehigh’s operations.

Lehigh officials, county planning staff, and a county attorney argued the road is, in effect, already private, under state definition.

But Stuart Flashman, attorney for Bay Area Clean Environment (BACE), made a case that by conducting Tuesday’s hearing, it is an admission by the county that the road is public, not private.

Permanente Road started as a wagon trail for various property owners living in the hills in the 19th century. A public easement was granted to the county in 1893, but the county never actually owned the land under the easement, according to staff.

At a later date the parcels were sold to one property owner, and in 1935 a gate was placed across the road. There appears to be no record of an official request to grant the easement back to a private landowner.

Lehigh officials argued on Tuesday that the road no longer meets state definitions for a public road because it is impassable to vehicular traffic and the county does not maintain the road. County staff also said that there is no intention to use the road as a public road in the future.

Opponents argued that the road, indeed, is passable—to heavy Lehigh vehicles—and could be used by the public once mining operations cease, possibly within 30 years.

Despite the supervisors' action, the issue is far from over.

BACE, formerly known as No Toxic Air, is , in part over the issue surrounding the road.

“This is still a live issue,” said BACE attorney Flashman, after the vote.

BACE's lawsuit specifically asks the court to declare the road public, as well as overturn the supervisor’s to Lehigh for its quarrying activities on the property. If Permanente Road was public, the company would have to follow certain mining regulations alongside the road.

The supervisors' February decision specifically recommended that Lehigh formally request that the public easement over the road be granted to the company when it made its decision in February. Tuesday’s hearing was the culmination of that request.