A quarry in unincorporated Alameda County may go forward despite a potential conflict with a growth-control initiative that voters approved in 2000, an appellate court has ruled.

The decision came despite provisions in Measure D that specifically said the Sunol Valley quarry in question “should not be established.” The First District Court of Appeal held that the county had approved the quarry in 1994, that the initiative was not retroactive and that the initiative could not administratively revoke the 1994 mining permit.

Prior to the November 2000 election, the campaign focus was on Measure D's provisions that drew urban growth boundaries around cities and unincorporated communities in central and eastern Alameda County. Urban growth outside those boundaries may not occur without voter approval (see CP&DR, December 2000, October 2000). However, Measure D was 40 pages long and contained this section:

“Policy 144: Except to the extent required by state law, no new quarry or other open-pit mine may be approved by the county outside the urban growth boundary, unless approved by the voters of Alameda County. Excavation not adjacent to an existing quarry site and on the same or adjoining parcel shall be regarded as a new quarry.

“Policy 144A: The quarry currently planned by the San Francisco Public Utilities Commission in the Sunol area should not be established. If despite Policy 144 the quarry goes into operation, the county shall permit no related industrial or manufacturing uses, notwithstanding any provision of the initiative.”

Sunol Valley is an unincorporated area east of Fremont. San Francisco purchased much of the valley during the 1930s as a water resource. Since the 1960s, the city has leased some land for gravel quarrying. Mission Valley Rock Company has mined on San Francisco land in the Sunol Valley since the mid-1980s. The company received Alameda County's approval for a surface mining permit and reclamation plan covering 145 acres in 1986. The county approved a 69-acre expansion in 1990. Two years later, Mission Valley Rock applied for a 240-acre expansion.

Alameda County certified an environmental impact report and approved a surface mining permit for the quarry expansion in 1994. A group called Save Our Sunol (SOS), which also filed the lawsuit at hand, appealed the county's decision to the state Board of Mining and Geology. The state upheld the county's decision. The Sunol Valley group then filed a lawsuit alleging that the county violated the California Environmental Quality Act and that the project was inconsistent with the county general plan. Both the trial court and the First District, in an unpublished 1997 decision, ruled against SOS.

Shortly before the November 2000 election, San Francisco certified an EIR for an Alameda County watershed management plan. The city then signed a lease with Mission Valley Rock for the expanded quarry site that was effective December 23, 2000 - one day after Measure D's effective date.

After 56% of voters approved Measure D, SOS sued to halt the quarry project. Alameda County Superior Court Judge Bonnie Lewman Sabraw, however, ruled that the county had previously approved the quarry, so Measure D was inapplicable. SOS appealed, and a unanimous three-judge panel of the First District upheld the lower court.

The Sunol Valley group contended that the county had not “approved” the Mission Valley Rock project within the meaning of Measure D because the gravel mining company lacked a site lease with San Francisco until after the initiative became effective, and because the company still needed a Caltrans encroachment permit, a streambed alteration permit from the Department of Fish and Game, and endangered species incidental take permits from state and federal agencies.

The court, though, pointed out that Measure D specifically referenced county approval. “Approvals by San Francisco, Caltrans, the California Department of Fish and Game, and federal and state authorities protecting endangered species are immaterial to application of Policy 144 that mandates voter endorsement only if the county has not previously approved the quarry,” Justice Patricia Sepulveda wrote for the court.

The county approved the quarry when it issued a permit under the Surface Mining and Reclamation Act, the court ruled.

“A surface mining permit is the indispensable requisite for operation of a quarry, and is issued only after extensive environmental review and policy considerations,” Sepulveda wrote. “Measure D provides that 'no new quarry … may be approved by the county … unless approved by the voters of Alameda County.' The contested Sunol Valley quarry was approved by the county when it issued surface mining permits in 1994, years before Measure D's 2000 enactment, and thus is not required to receive voter endorsement.”

Measure D cannot be used as an administrative act to revoke the county's approval, the court concluded, because administrative acts such as use permit approvals are not subject to voter initiatives.

The Case:
Save Our Sunol v. Mission Valley Rock Company, No. A105160, 04 C.D.O.S. 10327, 2004 DJDAR 14005. Filed November 19, 2004.
The Lawyers:
For SOS: Stephan Volker, (510) 496-0600.
For Mission Valley Rock: Peter W. Davis, Reed Smith (415) 543-8700.
For San Francisco: John Kerwin Smith, Haley, Purchio, Sakai & Smith (510) 538-6400.
For Alameda County: Lorenzo Chambliss, deputy county counsel, (510) 272-6700.