Marin Quarry's Non-Conforming Status Prevents Expansion
- William Fulton
- Apr 21, 2019
- 2 min read
An appellate court has rejected a San Rafael-area quarry’s attempt to expand its non-conforming use status by importing recycled asphalt and other materials. Even though the activity would promote recycling – and Marin County approved the expanded activity on the theory that it would not have any additional environmental impact – the First District Court of Appeal concluded that the additional approvals violated the county’s non-conforming use ordinance. San Rafael Rock Quarry and its predecessor companies have quarried rock on Point San Pedro Road in the San Rafael area since the 1940s. In 1982, Marin County rezoned the property for commercial and residential use, rendering the quarry operation as non-conforming. Under the non-conforming status, the quarry could produce asphaltic concrete only from material mined onsite. In 2013, SRRQ sought an expansion of its county mining permit to be able to use recycled material in its production processes. Marin County approved a two-year amendment and then, in 2015, a two- to four-year amendment. The county was sued by the Point San Pedro Road Coalition, a coalition of homeowner associations surrounding the quarry that was created in 1999 primarily to monitor its operations. The coalition argued that the amended permit was not permissible under the quarry’s non-conforming use status. The coalition’s first lawsuit failed because the group had not exhausted all administrative remedies by going to the state mining board first, but the second time around the coalition’s suit survived that hurdle. On appeal, the First District Court of Appeal ruled in favor of the coalition and against the county and SRRQ. “The record demonstrates, as the trial court explained, that SRRQ’s proposed processing of asphalt grindings cannot be equated with the processing of on-site mined materials and imported sand that was used in the production of asphaltic concrete at the time the use became nonconforming under the 1982 zoning ordinance,” wrote Justice Ioana Petrou for a unanimous three-judge panel. “The processing of the asphalt grindings involves more than the mere substitution of one type of raw material for another, which is then stockpiled and fed into existing equipment to be used in the production of asphaltic concrete. Instead, the processing of asphalt grindings involves new full truckloads of asphalt grindings traveling to the site.” The county had argued that the importation of material would not lead to any significant environmental impacts, including no new truck trips, but Justice Petrou essentially found that argument to be irrelevant. The court also concluded that denial of the permit would not affect the quarry’s current, legally permissible operations in any way. Speaking to the Marin Independent Journal, SRRQ lamented the notion that the nearby residents would not permit the company to pursue environmentally laudable recycling goals, while the Coalition said the ruling affirmed their longstanding view that Marin County has engaged in lax oversight of the quary. The Case: Point San Pedro Road Coalition v. County of Marin, No. A150002 (issued March 6, 2019; ordered published April 3, 2019). The Lawyers: For Point San Pedro Road Coalition: John D. Edgcomb, Edgcomb Law Group, jedgcomb@edgcomb-law.com For Marin County and San Rafael Rock Quarry: Michael Zischke, Cox Castle Nicholson, mzischke@coxcastle.com