May 4, 2019 | Category: California, Land Use, Lawsuit, Mining, Zoning

On March 6, 2019, the California First District Court of Appeal, in Point San Pedro Road Coalition v. County of Marin (2019) 245 Cal.Rptr.3d 580, considered whether import of asphalt grindings was within a mine’s legal nonconforming use or whether it was an impermissible expansion or enlargement. The court found that the import improperly expanding the mine operation’s legal nonconforming use in violation of the County nonconforming use regulation in place. The holding of this case establishes a soft outer limit to the prior understanding that nonconforming mining operations are allowed to expand; instead, similar to other nonconforming uses, a mining operation cannot be enlarged, increased, or intensified outside of its allowable nonconforming use.

In concluding that the import of asphalt grindings surpassed the permissible scope of a legal nonconforming use, the court iterated a few factors that should be considered when a regulating entity makes a determination on a legal nonconforming use. First, whether the proposed change “is required for, or [is] reasonably related to, the existing nonconforming” use. (Point San Pedro Road Coalition, supra, 245 Cal.Rptr.3d at 585.) Second, would denial of the request restrict the party’s vested right to continue its nonconforming use. (Id.)

The court also confirmed the longstanding notion behind legal nonconforming uses: that a new activity should not prolong the nonconforming use, and rather the nonconforming use should conform speedily as long as the interests of those affected are safeguarded. (Point San Pedro Road Coalition, supra, 245 Cal.Rptr.3d at 585.) The court’s holding reestablished that while nonconforming mining operations have been given leeway to expand operations, there is still an overriding interest to conform land uses to the current regulations controlling them. A reviewing regulating entity needs to critically make the same determination with the competing interests in mind: on one hand, the interested party’s interests in naturally continuing their nonconforming use, and on the other, the public’s interest in not impermissibly expanding or enlarging those nonconforming uses. In practice, this case confirms that a mining operation wishing to change its activities will be restricted to the allowable use prior to the zoning law change.