On April 3, 2019, in a case originally filed March 6, 2019, the First District Court of Appeal certified for publication Point San Pedro Road Coalition v. County of Marin, __ Cal.App.5th __ (Case No. A150002) (2019), an interesting opinion addressing the limits of the power local agencies have to approve changes to non-conforming land uses.

The case involved the San Rafael Rock Quarry, which owns property in the County of Marin containing both a mining operation and a plant that produces asphalt on-site. In 1941, the property was zoned “heavy industrial, limited agricultural,” which allowed mining as a legal use. A 1972 permit from the County allowed the existing mining operation to include on-site production of asphalt using material mined from the quarry and imported sand, but no other imported materials. The quarry and plant operations became a non-conforming use in 1982, however, when the County rezoned the property to commercial and residential. In 2013, the County approved a resolution granting the quarry’s request to import asphalt grindings to be processed on-site and used in the production of asphalt. In 2015, the County extended the expiration date of the resolution.

The Point San Pedro Road Coalition, an organization apparently formed to protect the local environment, and principally inspired by the environmental issues generated by the quarry’s operations, filed a petition for a writ of mandate seeking to compel the County to set aside the resolution on the ground the importation of asphalt grindings was an impermissible “extension, enlargement, or intensification” of the quarry’s non-conforming use in violation of the County zoning ordinance. The relevant provision of the ordinance provides that a non-conforming use of land:

“may be continued, transferred or sold, provided that the use shall not be enlarged, increased, or intensified (e.g., longer hours of operation, more employees, etc.), nor be extended to occupy a greater area than it lawfully occupied prior to becoming a nonconforming use.”

The County and quarry conceded that importing asphalt grindings is not within the scope of the non-conforming use of the site, as it existed prior to the 1982 rezoning, and that the quarry’s request to import grindings required the County to determine that the activity would not cause the use of the property to be “enlarged, increased, or intensified” in comparison to the use that existed prior to the rezoning. Nevertheless, the County and quarry contended that the County impliedly made the required determination that incorporating asphalt grindings into its existing operations would not exceed the scope of the quarry’s non-conforming use.

The trial court granted the Coalition’s petition, finding that the County’s approval was based on (1) “an incorrect legal analysis” of the basic character of nonconforming uses and the circumstances under which non-conforming uses can be continued, and (2) the lack of any evidence in the record supporting the County’s implied finding that importing asphalt grindings would not exceed the scope of the quarry’s non-conforming use. The court entered judgment in favor of the Coalition and issued a peremptory writ compelling the County to rescind the resolution. The County and quarry appealed, and the Court of Appeal affirmed.

The Court first noted, in reliance on Hansen Brothers Enterprises, Inc. v. Board of Supervisors, 12 Cal.4th 533, 560 (1996), that because the issue could be resolved on the undisputed evidence in the administrative record, “the ultimate conclusion to be drawn from the evidence is a question of law.” Thus, the County’s implied findings of fact are not determinative; the Court must determine the legal import of those facts, and “the County lacks the power to waive or consent to a violation of the zoning law.” The Court then explained that the intent of the County’s zoning ordinance, like all zoning ordinances, is to “discourage the expansion of nonconformities, but to permit them to exist and to be maintained and enhanced to protect public safety and property values.”

With those principles established, the Court determined that the County’s ordinance is consistent with the common law principles governing non-conforming uses as explained by the California Supreme Court in Hansen Brothers:

“The ultimate purpose of zoning is . . . to reduce all nonconforming uses within the zone to conformity as speedily as is consistent with proper safeguards for the interests of those affected, and that, given this purpose, . . . a strict policy against extension or expansion of those uses is warranted.”

The Court was not persuaded that the quarry’s proposed processing of asphalt grindings could be equated with the processing of on-site mined materials and imported sand that was used in concrete production when the use became non-conforming in 1982. Citing to detailed evidence in the record regarding the nature of processing asphalt grindings—which would have prolonged the non-conforming use rather than reducing it—the Court held that the resolution does not merely authorize the quarry to replace outmoded equipment and modernize previous methods used to produced asphalt as a natural or gradual change in the non-conforming use but instead authorizes the quarry “to conduct a new and additional operation . . . on property not presently zoned for industrial use.”

Finally, the Court explained both the standard for considering the validity of the proposed change to the non-conforming use (i.e., importing and processing asphalt grindings on site) and the limit on the applicability of the non-conforming use doctrine (i.e., avoidance of regulatory takings). With respect to the standard, the Court rejected the County’s and quarry’s assertions regarding the benefits of the importation and processing of asphalt grindings and instead explained that what is more relevant is whether the proposed change is required for, or reasonably related to, the existing non-conforming processing of on-site mined material and imported sand for the production of asphalt. And with respect to the limit, the Court noted that there has been no showing that a denial of the request to import asphalt grindings would restrict the quarry’s vested right to continue to produce asphalt using on-site minded material and imported sand or that the quarry would be required to change in any way the manner in which it produces asphalt.

The Court thus held that the County’s approval of the resolution to permit the importation of asphalt grindings effectively allows the quarry to change and unnaturally expand or increase its non-conforming use in violation of the County zoning ordinance. Because the quarry’s importation of asphalt grindings is not within the scope of the existing non-conforming use and the activity constitutes an impermissible extension or enlargement of the non-conforming use in contrary to the County zoning ordinance, the County had no authority to approve the resolution.

Point San Pedro Road Coalition illuminates one of the circumstances in which the courts will not simply defer to local land use decisions. Land use applicants seeking to change a non-conforming use must show that the change to the use is required for, or reasonably related to, the existing non-conforming use. Applicants should also focus on showing how denying the proposed change would impair their vested right to continue the non-conforming use or constitute a regulatory taking without compensation.