The following background was prepared by attorneys Shute, Mihaly, and Weinberger who represent CEA Foundation on our mine project responses.
The County should deny the Project and should not certify the EIR. The many environmental impacts associated with the Project, as well as its inconsistency with Grass Valley’s and the County’s land use plans provide ample justification for denying the Project. If it denies the Project, the County is under no obligation to certify the EIR. Las Lomas Land Co., LLC v. City of Los Angeles (2009) 177 Cal.App.4th 83 (upholding decision to stop preparation of an EIR and specific plan where city determined the project was not consistent with its land use policies); Pub. Res. Code § 21080 (a) (CEQA applies only to projects that public agencies carry out or approve.) Denial of the Project would also be consistent with a long line of case law recognizing that public agencies may limit the use of land to protect public values without resulting in a taking of property. Penn Cent. Transp. Co. v. City of New York (1978) 438 U.S. 104, 129 (1978) (“[T]his Court has recognized, in a number of settings, that States and cities may enact land-use restrictions or controls to enhance the quality of life by preserving the character and desirable aesthetic features of a city.”)(citations omitted); id. (“[I]n instances in which a state tribunal reasonably concluded that ‘the health, safety, morals or general welfare” would be promoted by prohibiting particular contemplated uses of land, this Court has upheld land-use regulations that destroyed or adversely affected recognized property interests.”); Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency (2002) 535 U.S. 302, 324 (“Land-use regulations are ubiquitous and most of them impact property values in some tangential way— often in completely unanticipated ways. Treating them all as per se takings would transform government regulation into a luxury few governments could afford.”) The Supreme Court has identified two primary tests to determine whether regulation causes a taking of property. First, a taking may occur if the regulation eliminates all use or value of the property. See Lucas v. S.C. Coastal Council (1992) 505 U.S. 1003. Under that test, there must be no value whatsoever remaining in the property; even a diminution of value of 95% is insufficient. See Tahoe-Sierra, 535 U.S. at 330 (citing Lucas, 505 U.S. at 1019 n.8). The second test involves evaluation of multiple factors, including the severity of the impact of the regulation on the value of the property, the extent of its interference with reasonable investment-backed expectations of use of the property, and the character of the governmental action. See Lingle v. Chevron (2005) 544 U.S. 528, 538-39 (citing Penn Central, 438 U.S. at 124.) Courts have consistently held that Penn Central test requires elimination of nearly all value in the property. The Ninth Circuit has recently recognized that even “diminution in property value because of governmental regulation ranging from 75% to 92.5% does not constitute a taking.” Colony Cove Props. LLC v. City of Carson (9th Cir. 2018) 888 F.3d 445, 451; see also Hadacheck v. Sebastian (1915) 239 U.S. 394, 405 (no taking despite diminution in value from $800,000 to a maximum of $60,000, and property could not be used for any purpose permitted under city's ordinance). In fact, as long as permissible uses exist, a denial would not deprive the applicant of economically viable use of its property. (Shea Homes Limited Partnership v. County of Alameda(2003) 110 Cal.App.4th 1246, 1267 [finding no regulatory taking because agricultural designation allowed single family use if certain County standards were met].) Here, the entire Brunswick Industrial Site is currently zoned M1-SP (Light Industrial, Site Performance Combining District), per the County’s Zoning Code. Its land use designation is IND (Industrial) under the County’s General Plan. The applicant is proposing to re-zone it as M1-ME (Light Industrial with Mineral Extraction Combining District) as part of the project. The Centennial Industrial Site and potable water pipeline easement areas are both zoned as M1 (Light Industrial) and designated as IND. All of these land use designations provide a reasonable economic use of the property and, on their face, defeat any claim that the applicant is entitled to establish a gold mine at the site.
PRINT or share this information with others using this PDF.