HANSEN BROTHERS ENTERPRISES v. BOARD OF SUPERVISORS OF COUNTY OF NEVADA

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Court of Appeal, Third District, California.

HANSEN BROTHERS ENTERPRISES, Plaintiff and Appellant, v. BOARD OF SUPERVISORS OF the COUNTY OF NEVADA et al., Defendants and Respondents.

No. C017070.

Decided: November 15, 1994

The Diepenbrock Law Firm and Mark D. Harrison, Sacramento, for plaintiff and appellant. Harold E. Degraw, Nevada City, for defendants and respondents.

In response to a law requiring mines to have reclamation plans, the owner of a mine asked the county to approve a plan based on substantial future increases in mining activities.   The county declined because the property was not zoned for mining and the contemplated operations were more than those which the owner had a prior vested right to continue, despite the zoning ordinance, as a legal nonconforming use.   The owner petitioned for a writ of administrative mandate to require the county to approve the plan.   The trial court denied the petition.   We affirm and hold a property owner with the vested right to continue mining as a nonconforming use may not substantially intensify mining operations without acquiring a use permit from the county.

FACTS AND PROCEDURE

Hansen Brothers Enterprises (Hansen Brothers) owns approximately 67 acres of property along the Bear River.   The property consists of the riverbed, adjacent hills, and a flat yard.   Sixty acres of the property is in Nevada County, and seven acres lies across the river in Placer County.   The property is called Bear's Elbow Mine.   Hansen Brothers uses the property for aggregate mining and processing and has done so since it acquired the property in 1954.   The mine was in operation for eight years before Hansen Brothers bought it.

Between 1955 and 1989, Bear's Elbow Mine produced 209,000 cubic yards of aggregate, 44,700 from the Nevada County side.   Average annual yield for the 34 years of operation is 6,200 cubic yards total, 1,300 from the Nevada County side.   There were large volumes removed from the property;  however, their main source was renewable river deposits in the riverbed.   In recent years this supply has dwindled because a dam was constructed upstream.   While minimal quarrying was done on the hillsides, there has been no such quarrying in years.   Fifteen-foot-tall trees have overgrown the previously quarried areas.

In 1954, the Nevada County Board of Supervisors (the Board) adopted zoning ordinances which did not provide for mining on the Hansen Brothers property.   However, the mine remained in operation as a legal nonconforming use under what today is Article 29, section L–II 29.2 of the county's Development Code.   This section provides:

“Any use lawfully in existence at the time this Chapter or amendments thereto takes effect, although such use does not conform to the provisions of this Chapter, may continue as follows:

“A. No such use shall be enlarged or intensified.   Nor shall any such use be extended to occupy a greater area of land than that occupied at the time of the adoption of this Ordinance.   Nor shall any such use be moved in whole or in part to any other portion of the lot or parcel of land occupied at the time of the adoption of this Chapter or amendment thereto.

“B. If the nonconforming use is discontinued for a period of one hundred eighty (180) days or more, any following use shall be in conformity with all applicable requirements of this Chapter.”

 In 1975, the Surface Mining and Reclamation Act (SMRA) was passed in California.  (Pub.Resources Code, § 2710 et seq.)   The SMRA required mining operators, as a condition to continued operations, to submit a reclamation plan to the relevant lead agency for approval.  (See Pub.Resources Code, § 2770.)   The lead agency in this case is the county, represented by the Board.  (See Pub.Resources Code, § 2728.)   The SMRA requires mining operators to obtain a use permit unless the operator had a vested right to conduct the mining prior to 1976 and the operation has not substantially changed.  (Pub.Resources Code, §§ 2770, subd. (a);  2776.)   The “vested right” referred to in section 2776 of the Public Resources Code is the right, protected by due process concerns, to continue the use existing at the time a zoning ordinance is passed even though the ordinance does not allow such use.  (See Livingston Rock etc. Co. v. County of L.A. (1954) 43 Cal.2d 121, 126, 272 P.2d 4 (Livingston Rock).)

To comply with the SMRA, Hansen Brothers prepared a reclamation plan for Bear's Elbow Mine and submitted it to Nevada County.   Claiming the vested right to mine both the riverbed and the hillsides, Hansen Brothers included mining operations over the entire 60–acre Nevada County parcel in its plan for the next 100 years or more.   It proposed to remove 5,000,000 cubic yards of materials, ranging anywhere from 5,000 to 250,000 cubic yards per year and leaving 500,000 cubic yards of waste.   Where mining from the hillsides has been abandoned in recent years, Hansen Brothers proposed to excavate and extract virtually all of them to a maximum anticipated depth of 350 feet.

The reclamation plan represented a major change both in volume of materials and location of the mining efforts.   For more than three decades, from 1955 to 1989, Hansen Brothers mined a total of 44,700 cubic yards of aggregate from the Nevada County portion of Bear's Elbow Mine.   This amounted to 1,300 cubic yards annually.   The plan proposed extraction of up to 250,000 cubic yards per year, a possible 200–fold increase.   While most of the aggregate was taken from Placer County and virtually all of it was removed from the riverbed, the plan proposed extraction mostly from the hillsides in Nevada County.

After review by the planning commission, the Board considered the reclamation plan.   It made no findings concerning the mining activities in the riverbed, but it found Hansen Brothers abandoned the hillside quarrying for more than 180 days.   In making this finding, the Board concluded the storage of materials previously extracted from the hillsides was insufficient to constitute continuance of the hillside mining operation.   The Board also found the reclamation plan contemplated an enlargement and intensification of the mining operation far beyond Hansen Brothers's vested rights.   Based on these findings, the Board refused to approve the reclamation plan and returned it to Hansen Brothers for revision and resubmission.   The Board noted Hansen Brothers would need a conditional use permit to conduct the operations proposed in the reclamation plan.

Asserting it had a vested right to conduct the mining operation contemplated by the reclamation plan, Hansen Brothers filed a petition for writ of administrative mandate (Code Civ.Proc., § 1094.5) and complaint for damages, injunctive relief, and declaratory relief.   The parties recognized a determination on the petition for writ of administrative mandate would resolve the major issue in the case concerning vested rights.   Accordingly, they stipulated to and the trial court approved a bifurcation of the petition from the remainder of the proceedings.

The trial court heard the petition for writ of administrative mandate and issued a statement of decision denying it.   The court agreed with the Board that (1) Hansen Brothers abandoned the hillside mining operation and (2) the reclamation plan contemplated “a substantial expansion and intensification of any previous use of the property and a substantial change in operations.”   To facilitate finality, Hansen Brothers stipulated to dismissal of the remaining causes of action in the complaint (see Connolly v. County of Orange (1992) 1 Cal.4th 1105, 1111, 4 Cal.Rptr.2d 857, 824 P.2d 663), and the court entered judgment.   Hansen Brothers appeals.

The parties agree the facts are undisputed.   Accordingly, we need only determine the legal effect of those facts.  (Halaco Engineering Co. v. South Central Coast Regional Com. (1986) 42 Cal.3d 52, 75, 227 Cal.Rptr. 667, 720 P.2d 15.)

DISCUSSION

 Enactment of zoning ordinances is a legitimate exercise of the police power.  (Livingston Rock, supra, 43 Cal.2d at p. 126, 272 P.2d 4.)   Courts may not diminish the effect of a zoning ordinance unless it is arbitrary and unreasonable.  (Beverly Oil Co. v. City of Los Angeles (1953) 40 Cal.2d 552, 560, 254 P.2d 865 (Beverly Oil).)   If a zoning ordinance impairs the vested right in an existing use of property, considerations of due process come into play.   In some, although not all, cases, the property owner's due process right to continued use of the property overcomes the police power exerted in the zoning ordinance.  (See id. at p. 557, 254 P.2d 865 for discussion of interplay between due process rights and police power.)

To avoid doubt as to constitutionality, zoning ordinances often include provisions permitting continued nonconforming use of the property by an owner already engaged in such use at the time the ordinance was adopted.   (Livingston Rock, supra, 43 Cal.2d at p. 127, 272 P.2d 4.)   This type of exception to the zoning ordinance, however, generally prohibits expansion or intensification of the nonconforming use and provides for expiration of the exception if the owner abandons the nonconforming use.  (See Sabek, Inc. v. County of Sonoma (1987) 190 Cal.App.3d 163, 166–168, 235 Cal.Rptr. 350 and cases cited therein.)

 The spirit of zoning ordinances and accompanying provisions allowing continued nonconforming uses is to restrict, not increase, the nonconforming use.  (Edmonds v. County of Los Angeles (1953) 40 Cal.2d 642, 651, 255 P.2d 772.)   Accordingly, courts generally sustain restrictions on extension or enlargement of a nonconforming use, thereby enforcing the zoning ordinance and upholding the police power.  (County of San Diego v. McClurken (1951) 37 Cal.2d 683, 686–687, 234 P.2d 972 (McClurken).)

 For example, in McClurken, the defendant used property within the plaintiff county for storage of paint, lumber, steel beams, fuel, and other items and did some preliminary grading for permanent structures.  (37 Cal.2d at p. 685, 234 P.2d 972.)   The fuel was stored in movable tanks.  (Id. at p. 687, 234 P.2d 972.)   The plaintiff county enacted a zoning ordinance, zoning part of the subject property as residential, but allowed continuance of the defendant's use of the property under a provision permitting uses which were nonconforming when the ordinance was enacted to be continued.  (Id. at pp. 686–687, 234 P.2d 972.)   Thereafter, the defendant built four permanent fuel storage tanks on the residentially-zoned portion of the property, increasing the fuel storage capacity on the property by more than five times.  (Id. at p. 687, 234 P.2d 972.)

The county brought an action to compel the defendant to remove the nonconforming fuel tanks.  (McClurken, supra, 37 Cal.2d at p. 684, 234 P.2d 972.)   Judgment was entered for the defendants, but the Supreme Court reversed.  (Id. at pp. 684, 692, 234 P.2d 972.)   It held:  “Such a formidable expansion can hardly be viewed as a mere continuance of the nonconforming use consisting of the intermittent storage of lumber and scrap metal, preliminary grading, steel beam storage, or even the use of movable tanks․  [The new permanent tanks] constitute an unwarranted enlargement of that nonconforming use.”  (Id. at pp. 687–688, 234 P.2d 972.)

In a mining operation, the relationship between the vested right to mine on the property and the restriction on expansion of a zoning ordinance presents unique problems because the mine is a diminishing asset.  (McCaslin v. City of Monterey Park (1958) 163 Cal.App.2d 339, 349, 329 P.2d 522.)  “The very nature and use of an extractive business contemplates the continuance of such use of the entire parcel of land as a whole, without limitation or restriction to the immediate area excavated at the time the ordinance was passed.   A mineral extractive operation is susceptible of use and has value only in the place where the resources are found, and once the minerals are extracted it cannot again be used for that purpose.”  (Ibid.)

In McCaslin, the plaintiff, owner of 70 acres, mined decomposed granite as an existing use when the city enacted a zoning ordinance which did not allow mining on the subject property.  (163 Cal.App.2d at p. 344, 329 P.2d 522.)   The zoning ordinance temporarily permitted preexisting nonconforming uses, but prohibited expansion of such uses.  (Id. at pp. 344–345, 329 P.2d 522.)   An amendment to the zoning ordinance singled out the plaintiff's mining operations and prohibited it as a public nuisance.  (Id. at p. 345, 329 P.2d 522.)

The plaintiff sought a judicial declaration the zoning ordinance was unconstitutional and void as to him, and the city cross-complained seeking an injunction on further mining.  (McCaslin, supra, 163 Cal.App.2d at pp. 345–346, 329 P.2d 522.)   The trial court held in favor of the plaintiff, finding he had a vested right to continue his mining operation.   (Id. at p. 346, 329 P.2d 522.)   On appeal, the city complained the trial court failed to apply the provision prohibiting expansion of nonconforming uses.   Even if allowed to continue mining, argued the city, the plaintiff was limited to further expansion of the portion of the property already excavated.  (Id. at p. 349, 329 P.2d 522.)

The Court of Appeal rejected the city's reasoning.   It held the entire tract fell within the exemption of preexisting uses from the effect of the zoning ordinance.  (McCaslin, supra, 163 Cal.App.2d at p. 349, 329 P.2d 522.)   To prohibit mining of the entire tract, reasoned the court, would constitute an unconstitutional taking of property without due process of law.   (Ibid.)

Hansen Brothers asserts the holding in McCaslin mandates reversal of the determination it did not have a vested right to continue mining operations as reflected in the reclamation plan.   It attempts to equate the mining operation in McCaslin with its own and thereby obtain the benefit of the McCaslin holding that it is entitled to mine the entire property as a vested right.

The dispositive difference between McCaslin and this case, however, is the absence of any indication the plaintiff in McCaslin intended to intensify the mining operation.   There is no indication he desired to do anything but maintain the status quo.   Here, the reclamation plan proposes mining of 5,000,000 cubic yards of aggregate over the next 100–or–so years, at a possible peak production of 250,000 cubic yards in but a single year, even though the mine produced only 209,000 cubic yards in more than three decades spanning from 1955 to 1989.   In addition, the plan proposed to extract the nonrenewable hillsides instead of the renewable riverbed theretofore exploited.   Such a formidable intensification of use is not addressed in McCaslin, but in McClurken (the fuel storage tank case) an analogous intensification was held to go beyond the vested right to continue a nonconforming use.  (See McClurken, supra, 37 Cal.2d at pp. 688–689, 234 P.2d 972.)

 Although there may exist a logical argument extending McCaslin to give Hansen Brothers the right to mine over the next 100 years as planned, this argument extends logic beyond the limits of common sense.   Due process does not support and common sense does not sustain an ambitious intensification of Hansen Brothers's nonconforming mining operations.   Simply put, due process requires the government to allow the company to continue in its prior beneficial use of the land, no more.   The zoning ordinance, an exercise of the police power, effectively freezes the right to use the land in the nonconforming way at its present level and then progressively prohibits uses that are abandoned.

 The constitutional mandate and the only justification for allowing a landowner to use the land in ways prohibited by a zoning ordinance is that government, in determining appropriate land uses, cannot, in most cases, deprive the landowner of its present use.   Hansen Brothers's advocacy here loses sight of the foundation of McCaslin and all other nonconforming use cases.   Due process does not give license to vastly intensify a nonconforming use.   Instead, the zoning ordinance, under command of due process, indulges the nonconforming use's existence while tolerating no expansion.

The permissible limitation of nonconforming uses made under vested rights is reflected in the municipal ordinance applied by the Board here.  “No [nonconforming] use shall be enlarged or intensified.”  (Nevada County Development Code, art. 29, § L–II 29.2, subd. (a).)

Hansen Brothers contends it is improper to assess the character of the mining operation by the volume of aggregate extracted because the operation must be allowed to fluctuate with market demands.   It denies such fluctuation is “intensification” or “substantial change.”   While we grant small fluctuations may not compromise the vested right, the intensification contemplated in Hansen Brothers's reclamation plan exceeds the vested right.   The use, not the intended use, is the measure by which exception to the zoning ordinance works.   That Hansen Brothers intends to increase its operation as the market demands does not bring it within the vested right exception to enforcement of the zoning ordinances.  “The intention to expand the business in the future does not give [Hansen Brothers] the right to expand a nonconforming use.”   (McClurken, supra, 37 Cal.2d at p. 690, 234 P.2d 972.)  “The purpose of the landowner in purchasing the property must yield to the public interest in the enforcement of a comprehensive zoning plan.”  (Ibid.)

Our distinguished colleague denies an increase in mining activities can be an intensification of a nonconforming use beyond the vested rights, not even when an owner who previously engaged in very limited and renewable aggregate removal from a small part of the property now proposes a possible 200–fold increase in extraction, excavating the entire Nevada County area, which was previously barely touched, to a depth of 350 feet.   As long as it was a mining operation before the zoning ordinance was adopted, he reasons, the government can do nothing to prevent intensification of the extraction without paying the owner.   While we may agree with much of his philosophy, we do not write on a clean slate.   Our position in the judicial hierarchy compels us to consider this case in light of precedent that controls either directly or by compelling analogy.  (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937;  see also County of Santa Clara v. Superior Court (1992) 2 Cal.App.4th 1686, 1691, fn. 3, 5 Cal.Rptr.2d 7.)

 Generally, intensification of a previous use, though intended by the property owner at the time the zoning ordinance was passed, is not part of the owner's vested rights.  (McClurken, supra, 37 Cal.2d at pp. 689–690, 234 P.2d 972.)   The dissent proposes no authority to except mining from this principle.  “The purpose of a zoning law is to regulate the use of land.”   (Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 750, 29 Cal.Rptr.2d 804, 872 P.2d 143, italics in original.)   The ordinance in question here only regulates the use of land beyond the use to which the land was put before enactment of the ordinance.   Thus, it does not interfere with vested rights and does not constitute a taking for which the government must provide compensation.  (See Livingston Rock, supra, 43 Cal.2d at p. 127, 272 P.2d 4.)

If undertaken as set forth in the reclamation plan, this mining operation would go beyond what due process requires and the local ordinance and state law allow as a nonconforming use.   The intensification of the mining operation represented in the plan is unjustified, using as a reference point the scope of the operation before the zoning through the time the plan was submitted to the Board.

The intensification of mining operations contemplated by the reclamation plan was only one reason the Board denied approval of the plan.   To this point, we have not discussed the abandonment of the hillside quarrying or the change in mining from the river deposits in the riverbed to the hillsides.   We need not consider these other reasons given by the Board for denial because the intensification of operations alone exceeds the vested right to conduct the mining operation as planned.   Since there was no right to conduct the mining operation as planned, the Board validly denied approval, requiring Hansen Brothers to either obtain a conditional use permit to conduct the operation as planned or change the plan to reflect the scope of its vested right to continue the mining operation.

DISPOSITION

The judgment is affirmed.

The Board denied approval of Hansen Brothers' reclamation plan on two bases:  (1) increased production and (2) excavation on the hillside.   The majority addresses only the first, concluding the substantial increase contemplated in the reclamation plan exceeds any allowable fluctuation in the vested right.   I would hold the Board may not apply the zoning ordinance to limit the Hansen Brothers' mining operations to historic levels without the payment of just compensation for the value of the property thereby taken.   For the guidance of the parties on remand, I would also address the second basis as well.   In my view, Hansen Brothers' vested right to extract aggregate is not limited to the river bed but includes any portion of the property containing aggregate.   I would therefore hold the Board may not apply the zoning ordinance to prohibit mining in any part of the property without the payment of just compensation for the value of property thus taken.

I

The Fifth Amendment to the United States Constitution provides:  “[N]or shall private property be taken for public use, without just compensation.”   This provision is applicable to the states by virtue of the Fourteenth Amendment.   (Keystone Bituminous Coal Assn. v. DeBenedictis (1987) 480 U.S. 470, 481 fn. 10, 107 S.Ct. 1232, 1240 fn. 10, 94 L.Ed.2d 472, 486 fn. 10.)   The California Constitution also prohibits the deprivation of “life, liberty, or property” without due process.  (Cal. Const., art. I, § 7, subd. (a).)

Twentieth Century history confirms the wisdom of the solicitude for property rights enshrined in the Bill of Rights.  “[I]n a free government almost all other rights would become utterly worthless if the government possessed an uncontrollable power over the private fortune of every citizen.   One of the fundamental objects of every good government must be the due administration of justice;  and how vain it would be to speak of such an administration, when all property is subject to the will or caprice of the legislature and the rulers.”  (Joseph Story, Commentaries on the Constitution of the United States (Little, Brown & Co. 1891) Vol. 2, § 1790, pp. 568–570.)   Justice Story's nineteenth century dictum prefigured the monstrous tyrannies of the century to follow.

The just compensation clause is bound up with the concept of “natural rights,” including liberty and property, which exist independent of government.  (Richard A. Epstein, Takings:  Private Property and the Power of Eminent Domain (Harvard Univ. Press 1985) pp. 5–6.)   It is “designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.”  (Armstrong v. United States (1960) 364 U.S. 40, 49, 80 S.Ct. 1563, 1569, 4 L.Ed.2d 1554, 1561.)

Despite the unambiguous constitutional command, the protection of property interests mandated by the just compensation clause began to erode before the ink on the Bill of Rights had dried.   From the outset, the judiciary demonstrated a marked reluctance to invoke the provision in the face of popular social legislation perceived as addressing the transient ills of the day.   The intent of the framers was initially subverted by limiting the clause to cases of actual physical appropriation of property.  (See Mugler v. Kansas (1887) 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205.)   In time, this approach was rejected by Justice Holmes, who ventured that “property may be regulated to a certain extent, [but] if regulation goes too far it will be recognized as a taking.”  (Emphasis added;  Pennsylvania Coal Co. v. Mahon (1922) 260 U.S. 393, 415, 43 S.Ct. 158, 160, 67 L.Ed. 322, 326.)   Alas, the courts still refused to recognize regulatory takings, interpreting Justice Holmes's limitation, expressed as “too far,” to encompass infinity.  (See, e.g., New State Ice Co. v. Liebmann (1932) 285 U.S. 262, 52 S.Ct. 371, 76 L.Ed. 747;  United States v. Carolene Products Co. (1937) 304 U.S. 144, 58 S.Ct. 778, 82 L.Ed. 1234;  Goldblatt v. Hempstead (1962) 369 U.S. 590, 82 S.Ct. 987, 8 L.Ed.2d 130;  Penn Cent. Transp. Co. v. City of New York (1978) 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631;  Keystone Bituminous Coal Assn. v. DeBenedictis, supra, 480 U.S. 470, 107 S.Ct. 1232, 94 L.Ed.2d 472.)

These later decisions betray adherence to an unprincipled dual standard for the protection of property and liberty interests, relegating property rights to the “legal dust bin.”  (James Oakes, ‘Property Rights' in Constitutional Analysis Today, 56 Wash.L.Rev. 583, 608;  James W. Ely, The Guardian of Every Other Right:  A Constitutional History of Property Rights (Oxford Univ. Press 1992) (hereafter Ely) 133–134.)   That dichotomy mocks the manifest intent and understanding of the framers, immanent in the Bill of Rights, that liberty and property rights are closely related and the protection of property is essential to the enjoyment of liberty.  (Lynch v. Household Finance Corp. (1972) 405 U.S. 538, 552, 92 S.Ct. 1113, 1121, 31 L.Ed.2d 424, 435;  Ely, at p. 134.)   Over two hundred years ago, James Madison wrote:  “Government is instituted no less for protection of the property, than of the person, of individuals.”  (The Federalist, No. 54, at p. 369 (Heritage Press 1945).)

Recently there has been a modest reawakening to the fundamental principles underlying the just compensation clause.   In cases such as Nollan v. California Coastal Comm'n (1987) 483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677, Lucas v. So. Carolina Coastal Council (1992) 505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed.2d 798, and Dolan v. City of Tigard (1994) 512 U.S. 374, 114 S.Ct. 2309, 129 L.Ed.2d 304, the court has stated no more than the obvious:  that government regulation of property which does not actually further its stated purpose (Nollan and Dolan) or which renders property commercially worthless (Lucas ) is a taking for which compensation is required.1

In concluding Hansen Brothers may be prohibited from expanding its business beyond the historic norm, the majority misapprehends the effect of the just compensation clause on a mineral extraction business.   This case is not about whether the Board may prohibit the expansion of mining operations on the Hansen Brothers' property.   For purposes of this appeal, we may assume the Board's legislative power is broad enough not only to prohibit expansion but to shut down the operation altogether.   However, “a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.”   (Pennsylvania Coal Co. v. Mahon, supra, 260 U.S. at p. 416, 43 S.Ct. at p. 160, 67 L.Ed. at p. 326.)

Were I writing on a clean slate, I would conclude that, except for cases of nuisance affecting the property rights of others, due process requires compensation for any public restriction on any lawful uses of private property, both current and prospective.   I can conceive of no principled reason why the burden of all restrictions on private property for the benefit of the public should not be borne by the public.

Yet it has long been accepted legal orthodoxy that adoption of a zoning ordinance may prohibit certain uses of private property without payment of just compensation.  (See Village of Euclid v. Ambler Realty Co. (1926) 272 U.S. 365, 47 S.Ct. at 114, 71 L.Ed. 303;  Consolidated Rock Products Co. v. City of Los Angeles (1962) 57 Cal.2d 515, 20 Cal.Rptr. 638, 370 P.2d 342;  Beverly Oil Co. v. City of Los Angeles (1953) 40 Cal.2d 552, 254 P.2d 865;  Edmonds v. County of Los Angeles (1953) 40 Cal.2d 642, 255 P.2d 772;  Rehfeld v. City and County of San Francisco (1933) 218 Cal. 83, 21 P.2d 419.)   And while an existing, nonconforming use may not be so restricted (see Livingston Rock & Gravel Co. v. County of Los Angeles (1954) 43 Cal.2d 121, 126, 272 P.2d 4), a proposed expansion of that use may be prohibited, in the case of commercial property, where it would effect a change in the basic nature of the business (4 Rathkopf, The Law of Zoning and Planning (4th ed.) § 51A.04, p. 51A–49;  6 Powell on Real Property, ¶ 871[3][c][ii] ).

In concluding Hansen Brothers may not expand its mining operation as contemplated in the reclamation plan, the majority apparently view the proposed increase as a change in the fundamental nature of the business.   They rely primarily on San Diego County v. McClurken (1951) 37 Cal.2d 683, 234 P.2d 972, in which the court concluded erection of four permanent storage tanks on a parcel of property, increasing storage capacity five-fold, where only movable tanks had been used for intermittent storage in the past, was not a continuation of an existing use and could be prohibited consistent with due process.   Other cases in which the result turns on a perceived change in the fundamental nature of the business have also involved erection or expansion of permanent structures.  (See, e.g., Beverly Oil Co. v. City of Los Angeles, supra, 40 Cal.2d 552, 254 P.2d 865 [addition of oil wells to existing field];  Edmonds v. County of Los Angeles, supra, 40 Cal.2d 642, 255 P.2d 772 [increase in trailer park from 20 to 50 units requiring expansion of utility houses];  Rehfeld v. City and County of San Francisco, supra, 218 Cal. 83, 21 P.2d 419 [extension of a grocery store 22 feet backward onto a vacant lot].)

I am aware of no paramount decisional authority in which a change in the nature of a mineral extraction business, wrought solely by an increase in production, warranted restriction as a nonconforming use.2  This is not surprising.   The same general rules that might be applied to more typical businesses are not readily transferable to a mining operation.  “By its very nature, quarrying involves a unique use of land.   As opposed to other nonconforming uses in which the land is merely incidental to the activities conducted upon it, quarrying contemplates the excavation and sale of the corpus of the land itself as a resource.”  (Syracuse Aggregate Corp. v. Weise (1980) 51 N.Y.2d 278, 434 N.Y.S.2d 150, 153–154, 414 N.E.2d 651.)   Since an extractive business involves a wasting asset, it has a finite life.   Whether all of the minerals are extracted in a brief span or over a longer period of time, the total amount extracted is the same.

An increase in production in an extractive business is not a change in the basic nature of the business.   The nature of the business is to extract as much of the available minerals as may profitably be marketed and as surrounding circumstances will permit.   Whether all of the available minerals are extracted in one year or one hundred years is immaterial.   In fact, under certain circumstances, it might well be in the public's interest if the rate of extraction were increased, since this would hasten the eventual termination of the nonconforming use.   In my view, the Board erred in denying approval of the reclamation plan on the basis of the proposed increase in production.

II

The Board also erred in concluding the hillside may not be mined.   As explained in McCaslin v. City of Monterey Park (1958) 163 Cal.App.2d 339, 349, 329 P.2d 522:  “The very nature and use of an extractive business contemplates the continuance of such use of the entire parcel of land as a whole, without limitation or restriction to the immediate area excavated at the time the ordinance was passed.”   The great weight of authority from other jurisdictions is in accord.  (See, e.g., Gibbons & Reed Co. v. North Salt Lake City (1967) 19 Utah 2d 329, 431 P.2d 559, 564;  Moore v. Bridgewater Township (1961) 69 N.J.Super. 1, 173 A.2d 430;  County of DuPage v. Elmhurst–Chicago Stone Co. (Ill.1960) 18 Ill.2d 479, 165 N.E.2d 310, 313;  Hawkins v. Talbot (1957) 248 Minn. 549, 80 N.W.2d 863, 865–866;  Cheswick v. Bechman (1945) 352 Pa. 79, 42 A.2d 60, 62;  contra, Flanagan v. Hollis (1972) 112 N.H. 222, 293 A.2d 328;  Wayland v. Lee (1950) 325 Mass. 637, 91 N.E.2d 835.)

If the Board's position on this issue is upheld, it would leave no principled basis to prevent the Board also from prohibiting mining further up or down the river or at greater depths than previously attained.   In effect, the mining operation would have to cease immediately because only property previously used, i.e., where the ore had already been extracted, could be mined.   The absurdity of such a result is self-evident.

As explained in Syracuse Aggregate Corp. v. Weise (1980) 51 N.Y.2d 278, 286, 434 N.Y.S.2d 150, 153–154, 414 N.E.2d 651, 655:  “By its very nature, quarrying involves a unique use of land.   As opposed to other nonconforming uses in which the land is merely incidental to the activities conducted upon it, quarrying contemplates the excavation and sale of the corpus of the land itself as a resource.   Depending on customer needs, the land will be gradually excavated in order to supply the various grades of sand and gravel demanded.   Thus, as a matter of practicality as well as economic necessity, a quarry operator will not excavate his entire parcel of land at once, but will leave areas in reserve, virtually untouched until they are actually needed.

“It is because of the unique realities of gravel mining that most courts which have addressed the particular issue involved herein have recognized that quarrying constitutes the use of land as a ‘diminishing asset’.   Consequently, these courts have been nearly unanimous in holding that quarrying, as a nonconforming use, cannot be limited to the land actually excavated at the time of enactment of the restrictive ordinance because to do so would, in effect, deprive the landowner of his use of the property as a quarry.”  (Citations omitted.)

In my view, Hansen Brothers has a constitutional right to pursue its mining operation on any part of its property and to increase production as desired, consistent with the law of nuisance.

Even assuming that I would disagree with the majority's analysis of the hillside issue, their failure to address the issue is unfortunate.   As a result of the majority decision, Hansen Brothers must submit a new reclamation plan.   Even if the new plan does not contain a proposed increase in production, there is no reason to believe Hansen Brothers will abandon its plan to mine the hillside and the matter will be back before the courts on one of the very issues now before us.   The question should be resolved here and now so that further court proceedings on that issue may be averted.

I would reverse the judgment and remand with directions to the trial court to issue a writ of mandate compelling the Board to approve Hansen Brothers' reclamation plan.

FOOTNOTES

1.   Dolan held that a forced public dedication in exchange for a permit to expand a business on private property must be roughly proportional to the impact of the proposed construction on public interests.   In dissent, Justice Stevens, with no apparent sense of irony, lamented that “property owners have surely found a new friend today.”   (Dolan v. City of Tigard, supra, 512 U.S. at p. ––––, 114 S.Ct. at p. 2326, 129 L.Ed.2d at p. 329.)   The irony is that even as Justice Stevens was deploring the high court's rebuff of government's attempt to coerce property owners, lovers of freedom were rejoicing that millions of people the world over had finally been rescued from coercive government or, to use Justice Stevens's phrase, had “found a new friend.”   It is paradoxical that in the world's oldest democracy there is significant support for the principle that property rights are subordinate to the coercive whims of government.

2.   Although the court in Beverly Oil Co. v. City of Los Angeles, supra, 40 Cal.2d 552, 254 P.2d 865 upheld a zoning ordinance prohibiting the owner of property containing oil wells from increasing the number of wells or extending existing wells to a greater depth in order to tap the reserves at lower levels, there was no indication the owner desired to increase production.   The court did not address the issue of just compensation but instead noted the owner received reciprocal benefits from the ordinance because surrounding owners were not permitted to sink wells and, as oil is a migratory substance, the plaintiff could extract oil from beneath surrounding land.  (40 Cal.2d at p. 559, 254 P.2d 865.)   The court concluded the owner failed to prove there had been an impairment of its property interests.  (Ibid.)

NICHOLSON, Associate Justice.

BLEASE, J., concurs.

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