Quarry Vote Favors Cement Plant Rights—And Portends More Citizen Action

Part courtroom procedural, part political theater, Tuesday’s county public hearing over "vested rights" for the quarry owned by the Lehigh Heidelberg Cement Group provided plenty of drama.

There were protesters in surgical masks, company employees bused in to fill the chamber and dramatic pronouncements from speakers on both sides that the county's decision would mean either the population would be poisoned or jobs would be killed. 

And while the curtain closed that night on the Santa Clara County Board of Supervisors voting unanimously in favor of the cement company, another curtain will surely rise on future drama between the company and opposition citizen groups.

“The bottom line is that we can't sit back and do nothing, the stakes are too high for all of us; we need to protect our health, family and environment,” read a statement from No Toxic Air leaders to its members in an e-mail on Wednesday.  

The Chinese characters for “crisis,” they said, “means danger and opportunity. We see opportunity moving forward.”

The board ruled in favor of "vested rights" —a legal term which means Lehigh can use the land under rules in place at the time mining began. The original owner, Henry Kaiser, began mining operations in 1939.  The supervisors, in fact, granted vested rights to the company beyond the area county staff recommended. 

In practicality, the board’s decision means Lehigh will not have to apply for new land-use permits on 13 of 19 parcels it owns on unincorporated land in the foothills adjacent to Cupertino and Los Altos borders. Using a staff report citing 1948 as the year the county first required a use permit for quarrying, the board grandfathered all parcels purchased before that year. Staff had recommended recognizing rights only to the parcels where mining or exploration had definitively occurred already.

A proposed 200-acre pit mine in a parcel south of those grandfathered areas is on land purchased in later years, which means Lehigh will have to seek a new use permit for that mine. The matter is expected to come before supervisors later this year in fall or early winter, according to county staff.

Separately, there is the renewal of a reclamation plan for the East Materials Storage Area (EMSA), a piece of land near Rancho San Antonio County Park that is used for dumping of unused quarried rock. That could come before the supervisors this summer.

“We’re pleased that the county of Santa Clara has reaffirmed once again our right to mine the property, and we look forward to working with our neighbors on the reclamation plan amendment,” said Marvin Howell, Lehigh’s director of land use planning, on Wednesday.

Howell disputed contentions made by opponents during the hearing that future mining activities on grandfathered parcels will not face more environmental scrutiny.

“That’s clearly not the case,” he said, adding that projects such as the EMSA reclamation plan, “are subject to the most stringent environmental review under California law.”

Supervisors heard similar statements from county staff, and leaned on those assurances in part to make their decision.

The key to the board’s decision, however, was a 1996 California Supreme Court case, Hansen Brothers Enterprises Inc. vs. Board of Supervisors of Nevada County.  The court ruled that a miner has vested rights to extract minerals from the miner’s entire property, as long as the miner proves intent to mine the property from when the land was originally purchased. 

The lead counsel in that landmark case, Mark Harrison, was Lehigh’s attorney at Tuesday’s hearing. Harrison laid out a case before supervisors that the quarry’s original owner, Henry Kaiser, intended to eventually mine his entire property.

Board president Dave Cortese, representing District 3, and District 5 Supervisor Liz Kniss, questioned county lawyers at length about the case and its implications on the Lehigh property.

County staff members had placed a boundary around the areas where they said they could show there had been mining, or intent to mine, which included portions of parcels.

The recommendation was to grant vested rights within those boundaries. Instead, supervisors granted rights to entire parcels.

It was a disappointing decision for Quarry No founder Bill Almon of Los Altos Hills.

“The impact of this is huge,” he said. “I don’t think (the supervisors) realize what they were giving up.”

Despite the assurances by staff that future activities will include reclamation plans and environmental reviews, Almon called those measures weak compared with land-use permits, which he claimed gives government more regulatory control.

Also disappointed was Cupertino Councilman Barry Chang, who led a protest outside of the county headquarters before the hearing and passionately addressed the board—to some low “boos” from Lehigh supporters in the audience.

Chang said he and his group, No Toxic Air, had asked that their attorneys be given the same amount of time to address the board as Lehigh’s attorney, 15 minutes. The request was denied, leaving members one minute apiece to speak.

Their goal, Chang said, was to point to other court cases that they believe allow government bodies to rule against vested rights when there is potential harm to the public involved. It was why members pointed over and over again to possible harm from mercury and other toxins emitted by the plant.

“The Board of Supervisors just brushed it off; they just ignored it,” Chang said Wednesday.

Chang said No Toxic Air’s leadership is now considering the next course of action, which could include challenging the board’s decision in court, or possibly seeking a referendum on the issue before voters.