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Home My Public Portal AboutMemo to CDD re Teichert Martis Valley Quarry ___________________________________________________________________________________________________________ 10183 Truckee Airport Road, Truckee, CA 96161-3306 www.townoftruckee.com Administration: 530-582-7700 / Fax: 530-582-7710 / email: truckee@townoftruckee.com Community Development: 530-582-7820 / Fax: 530-582-7889 / email: cdd@townoftruckee.com Animal Services 530-582-7830 / Fax: 530-582-1103 / email: animalservices@townoftruckee.com Police Department: 530-550-2323 / Fax: 530-582-7771 / email: policedepartment@townoftruckee.com Printed on recycled paper. Town Council Morgan Goodwin, Mayor Carolyn Wallace Dee, Vice Mayor Patrick Flora, Council Member Jessica Abrams, Council Member David Tirman, Council Member Department Heads Tony Lashbrook, Town Manager Andy Morris, Town Attorney Robert Leftwich, Chief of Police Jeff Loux, Community Development Director Kim Szczurek, Administrative Services Director Judy Price, Town Clerk Daniel Wilkins, Public Works Director/Town Engineer MEMORANDUM TO: Jeff Loux, Community Development Director FROM: Andy Morris, Town Attorney RE: Teichert’s Rights re Operation of Martis Valley Quarry DATE: June 15, 2017 BACKGROUND Teichert Aggregates owns and operates a facility known as the Martis Valley Quarry. The quarry was originally approved in 1983 by Nevada County, through issuance of a conditional use permit (the “CUP”). The CUP required the County (and the Town since 1993) to conduct reviews of quarry operations every five years, and authorized the Planning Commission to “add, delete or modify the conditions of approval” imposed through the CUP. Some of the neighbors in the vicinity of the quarry have expressed concerns about the quarry’s continuing operations and have suggested that the Town should require Teichert to close the quarry or impose rigorous new conditions on the quarry’s operation. This memo will address the scope of the Town’s authority with regard to the quarry. Page 2 of 4 ___________________________________________________________________________________________________________ 10183 Truckee Airport Road, Truckee, CA 96161-3306 www.townoftruckee.com Administration: 530-582-7700 / Fax: 530-582-7710 / email: truckee@townoftruckee.com Community Development: 530-582-7820 / Fax: 530-582-7889 / email: cdd@townoftruckee.com Animal Control/Vehicle Abatement: 530-582-7830 / Fax: 530-582-7889 / email: animalcontrol@townoftruckee.com Police Department: 530-550-2328 / Fax: 530-550-2326 / email: policedepartment@townoftruckee.com QUESTIONS PRESENTED 1. What rights does the holder of a CUP have? 2. Can the Town revoke the quarry’s CUP? 3. Can the Town impose new operating conditions on the quarry? If so, what kinds of conditions can be imposed? BRIEF ANSWERS 1. A CUP confers the right to operate a particular use indefinitely, as long as the CUP holder complies with the CUP conditions. 2. The Town cannot revoke the quarry’s CUP do so unless Teichert is violating the law, not meeting the conditions of the CUP, or creating a public nuisance, and continues doing so after the Town notifies Teichert of the violations. 3. The Town can impose new operating conditions either if necessary to address violations of law, breaches of existing requirements, or the existence of a nuisance, or if Teichert agrees to the new conditions. ANALYSIS 1. RIGHTS CONFERRED BY A CUP A CUP grants the holder the right to maintain a certain land use, under conditions specified at the time the permit is issued. A CUP runs with the land, remaining in effect even if the property or business for which the CUP was issued is sold. A CUP cannot be revoked or modified without notice to the property owner and a hearing. Certain other requirements must also be met for revocation or unilateral modification, as described below. In essence, if the permittee is not creating a public nuisance or violating the law or CUP conditions, the permittee Page 3 of 4 ___________________________________________________________________________________________________________ 10183 Truckee Airport Road, Truckee, CA 96161-3306 www.townoftruckee.com Administration: 530-582-7700 / Fax: 530-582-7710 / email: truckee@townoftruckee.com Community Development: 530-582-7820 / Fax: 530-582-7889 / email: cdd@townoftruckee.com Animal Control/Vehicle Abatement: 530-582-7830 / Fax: 530-582-7889 / email: animalcontrol@townoftruckee.com Police Department: 530-550-2328 / Fax: 530-550-2326 / email: policedepartment@townoftruckee.com has the right to continue operating indefinitely. This is the case even if the CUP purports to have an expiration date, as some older CUPs have.1 2. REVOCATION OF THE QUARRY’S CUP A CUP cannot be revoked by the Town arbitrarily. California courts have recognized for decades the limitations on cities’ rights to revoke CUPs. As one court described CUP revocation in 1971: Once a use permit has been properly issued the power of a municipality to revoke it is limited…Where a permit has been properly obtained and in reliance thereon the permittee has incurred material expense, he acquires a vested property right to the protection of which he is entitled…When a permittee has acquired such a vested right it may be revoked if the permittee fails to comply with reasonable terms or conditions expressed in the permit granted or if there is a compelling public necessity…A compelling public necessity warranting the revocation of a use permit for a lawful business may exist where the conduct of that business constitutes a nuisance.2 It is helpful in this context to understand that California’s definition of a public nuisance is anything that is “injurious to health…indecent or offensive to the senses, or an obstruction to the free use of property”, and which “affects at the same time an entire community or neighborhood, or any considerable number of persons…”3 This standard is not as easy to meet as it might appear to be. If a CUP holder has incurred substantial expense and acted in reliance on the CUP, the courts may consider the permittee to have acquired a fundamental vested right.4 Teichert’s 34- year history of operating the quarry, and its substantial investment in equipment and 1 Community Development Commission v. City of Fort Bragg (1988) 204 Cal.App.3d 1124, 1132. 2 Garavatti v. Fairfax Planning Commission (1971) 22 Cal.App.3d 145, 151. 3 Cal. Civil Code §§ 3479, 3480. 4 Id. at 1280. Page 4 of 4 ___________________________________________________________________________________________________________ 10183 Truckee Airport Road, Truckee, CA 96161-3306 www.townoftruckee.com Administration: 530-582-7700 / Fax: 530-582-7710 / email: truckee@townoftruckee.com Community Development: 530-582-7820 / Fax: 530-582-7889 / email: cdd@townoftruckee.com Animal Control/Vehicle Abatement: 530-582-7830 / Fax: 530-582-7889 / email: animalcontrol@townoftruckee.com Police Department: 530-550-2328 / Fax: 530-550-2326 / email: policedepartment@townoftruckee.com improvements for the quarry, make it highly likely that Teichert has acquired a vested right under the CUP. In looking at governmental actions involving fundamental vested rights, courts will use their independent judgment, giving no deference at all to a governmental determination. The Town would not be able to revoke the CUP unless Teichert was out of compliance with the CUP conditions or a “compelling public necessity” existed in the form of the quarry constituting a public nuisance. The noise and air quality complaints received to date will probably not suffice as grounds for a CUP revocation, because all the testing evidence and the opinions of the regulatory agencies indicate that Teichert is not violating the law and is meeting all applicable standards. This would make it difficult to find that the quarry’s noise and dust emissions constitute a nuisance. The remaining complaints concern odors, which can indeed constitute nuisances under California law.5 The difficulty with using odors as the basis for CUP revocation is that odor is inherently subjective, and there are no objective standards for determining whether an odor constitutes a nuisance. The cases examining odor nuisances indicate that odors need to be notably strong in order to constitute a nuisance.6 3. NEW CUP CONDITIONS The restrictions on revocation of a CUP would also apply to an effort by the Town to unilaterally impose new conditions on Teichert’s CUP for the quarry. The Town can modify the CUP conditions as necessary to protect the public health, safety, and welfare if the quarry’s existing operations are found to constitute a nuisance. As with a revocation, the Town would need to have evidence to support the finding of a nuisance to justify the imposition of new conditions. Of course, the Town can also modify CUP conditions with the consent of the permittee, so there is no problem with implementing the new and revised conditions that Teichert has indicated it will accept. 5 See, e.g. Wade v. Campbell (1962) 200 Cal.App.2d 54, 59. 6 Nuisance-level odors have been things like natural gas plant emissions (in the relaxed regulatory environment of 1910), a large cattle and hog operation, an enormous manure pile, a sewage treatment plant, open sewers, smelting plant emissions, and the like.