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

Although supervisors voted unanimously in favor of vested rights for the Lehigh quarry, disappointed opponents plan to continue their fight.

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.

Mike McNutt February 10, 2011 at 03:55 PM
I believe the Board made the right decision. The Cement Plant has the right to continue their mining business as long as they adhere to the State and Federal regulations. Barry Chang and his group only have their real estate interests at heart. I worked at Kaiser Permanente for 16 yrs as a welder in the late 70's and 80's and have suffered no ill effects with respiration or other symptoms. Mike McNutt
Karen Janowski February 10, 2011 at 04:13 PM
I wasn't able to attend the meeting but I'd like to understand why the attorney for No Toxic Air was not given 15 minutes to make a presentation to the board of supervisors. It seems that it would have allowed another legal perspective and probably would have been a good PR move on the part of the supervisors. Any ideas?
F. Scott Wilson February 11, 2011 at 11:07 PM
This was essentially a legal proceeding, with the Board acting in a judicial capacity, to decide the land rights for Lehigh. As the city's attorney described it, Lehigh had the burden of proof to show that it was grandfathered on the properties in question, and was required to provide evidence and legal precedent for this assertion. Lehigh was required to make its case to the Board, for their review. Public comment was taken, but No Toxic Air and other groups were not parties to the proceeding as such, so would not have been invited to give evidence.
Susan February 12, 2011 at 07:42 PM
It was unlike any legal proceeding I’ve ever seen; more like a kangaroo court: 1) The County Executive instructed the Board they were acting as both judge AND jury. However, judges and juries are required to recuse themselves if they have a monetary interest in the outcome; 2) The judges did not allow the opponent's attorney to rebut the Lehigh Hanson attorney’s 15-minute argument, and questions for the County Counsel were reaching for a way to grant vested rights, while ignoring both case law and evidence against; 3) Unlike Lehigh Hanson, the judges did not allow the citizenry to project evidence onto the overhead screens; 4) Lehigh Hanson’s fan base arrived on 3-chartered busses, and the judges failed to stop them from applauding throughout; 5) The fan base scoffed, mocked, and snickered at the people who were expressing their concerns about being fumigated and poisoned by the Facility; 6) Judge & jury member Liz Kniss announced she had a motion – meaning her mind was made up – before the 4 other members of the judge & jury offered their opinion; 7) The jury dismissed the County Council's opinion that the “EMSAs” (Permanente Metals Corp.) mining vested rights had been "abandoned” in 1942. Rather, they made a twilight zone analogy that expanding an open pit mine was like expanding an apricot orchard. It is important that you judge for yourselves: www.sccgov.org - “Board meeting Webcasts” link for Feb. 8, 2011.
John Bartas February 13, 2011 at 08:07 PM
This article didn’t really explain why residents are so angry that hundreds of us left work and drove to San Jose to protest. In the '30s the cement plant fenced off a public road, essentially stealing public land for the plant. Corrupt officials overlooked this. In the '90s the plant burned tires in their kiln, until the reek of burning rubber led to street protests. Still no action from the county. A few years ago the plant tried to sneak a permit for a new strip mine past the public in secret hearing. The county and BAAQMD considered this business as usual, even trying to help them out. Today the plant still have numerous ongoing violations pollution laws and regulations, even as they try to legitimize their "vested rights" around stolen public lands. How do they get away with such lawlessness? Simple: politicians who help them out, such as BAAQMDs Barbara Koppel and ex-Mayor Sandra James, can count on large campaign donations and retire on fat "consulting" contracts. It seems the BOS refused to hear this information in anticipation of (more) nice fat cash grants from Lehigh. Apparently bribes are cheaper than cleaning up.
Katheryn September 30, 2012 at 04:42 PM
who runs the politicians? I have provided a link to the Temecula Patch, please read the article and watch the video. Tell me how you feel about this sort of thing, and be sure to add this to your facebook accounts get the word out/ Tell does this sound familiar, I have provided a link to a story on the Temecula Patch. Please read the story and watch the video in the story. http://temecula.patch.com/articles/citizen-reader-shares-mining-sounds


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