|
August 28, 2003 LAWSUIT DETAILS, CURRENT INFO AND HISTORY Many of you may know that Save Our Sunol is the lead plaintiff in a lawsuit against a local mining company, Mission Valley Sand and Rock, the County of Alameda, and the City and County of San Francisco. We have brought this suit to prevent quarrying planned for 242 acres of San Francisco watershed land adjacent to the Willis Polk Water Temple and near Sunol's elementary school. Save Our Sunol has been holding this mining project at bay for over ten years. Our suit does not seek to stop quarrying, rob the state of aggregate and threaten jobs. We seek only to give the electorate the voice the law intends it to have in deciding use of open space in the unincorporporated areas of Alameda County. We are asking that Measure D (the Alameda County Open Space Initiate, passed by the voters in the Nov. 2000 election) be applied to this mining project (Alameda County Surface Mining Permit 32). Measure D requires a majority of the voters of the county to approve this use of the parcel. There
has only been one previous challenge to Measure D. Two years ago Shea
Homes and the Linn family wanted to develop unincorporated acreage in
Livermore and sought to have Measure D declared unconstitutional. They
lost on all four counts in their attempt to strike down the initiative.
The Save Our Sunol, et al., litigation marks the first time that Alameda
County has been in the position of plaintiff, fighting against a law
it is beholden to defend. Demurrer: Mission Valley, Alameda County and San Francisco sought to have the suit thrown out of court, and Judge Kenneth Burr presided over a hearing on the matter Sept. 20, 2000 in Alameda Superior Court in Hayward. Dublin attorney Morgan King represented the plaintiffs Save Our Sunol, Alameda Creek Alliance and Preserve Area Ridgelands. For the defense, attorneys David P. Lanferman and Thomas D. Roth of Sheppard, Mullin, Richter & Hampton appeared for both Mission Valley Rock and San Francisco, with county council Lorenzo E. Chambliss for Alameda County. In his decision, Judge Burr rejected the defendants' claim that Measure D was illegal because it interferes with the county's administrative implementation of legislative policy. "Because the Alameda County Board of Supervisors have total control of the regulatory process attending SMP-32 following voter approval of the land use, there would appear to be no basis for this challenge," Burr wrote. In overruling the defendants' claim that Measure D's voter approval requirement conflicts with California's Surface Mining and Reclamation Act (SMARA), Judge Burr wrote, "This Court's review of SMARA revealed no intent of the legislature to limit power of the local legislative plan by initiative with regard to surface mining activities…SMARA expressly reserves to local government the ultimate decision-making authority on land use issues." Judge Burr chose to rule separately on the defendants' claim that San Francisco is protected from this lawsuit on the basis of intergovernmental immunity. Referring to specific language in the text of Measure D, Judge Burr ruled that San Francisco, having no mining regulations of its own, had incorporated and relied upon "the regulatory scheme of Alameda County." Burr wrote, "By its conduct, the City and County (of San Francisco) has not 'waived' intergovernmental immunity, so much as rendered the doctrine moot in light of its own regulatory vacuum." The
ruling echoed Judge Burr's comment to the defendants at the Sept. 20
hearing. "You can't have your cake and eat it, too," he said.
If intergovernmental immunity applied in this case, there would be no
agency responsible for SMARA compliance. The defendants maintain that all permits necessary for the quarrying operation to move forward were in place before Measure D became law. If this were not a new project, why would any permits have been obtained? The statement that all permits were in place is false, based on documents in the public record or the lack thereof. Of those permissions obtained, the lease to Mission Valley Rock by San Francisco was finalized a day after Measure D became law, leaving the project open to a Measure D challenge. The lease was approved by the San Francisco Board of Supervisors just before the November 2000 elections, which removed the majority of that board from office in favor of more environmentally sensitive candidates. The current San Francisco Board of Supervisors, including mayoral candidates Matt Gonzalez and Tom Ammiano, were convinced that the lease was granted for political reasons by the previous board. Led by Supervisor Chris Daly, the supervisors passed a resolution in April 2001 stating that the project threatened the health and welfare of the town and especially the students in Sunol Glen Elementary School. The resolution asked the Public Utilities Commission to rescind the lease and instructed the City Attorney's Office to find a legal way out of the contract. No action has been taken by the PUC or the City Attorney to date. If the project is legally required to seek a vote in Alameda County for approval, the lease will be invalidated. This will save financially beleaguered San Francisco from a massive lawsuit by Mission Valley Rock, which threatened to sue the city for $100 million should San Francisco withdraw the lease. WHAT'S
AT STAKE The temple and its surroundings are an integral part of the view shed of this area. Drivers passing through on I-680, Calaveras Road and Route 84 have enjoyed the view of the temple and the hills beyond it since 1910. Both I-680 and Niles Canyon (Rte. 84) are designated Scenic Highways, along which quarrying is not allowed. As our research has shown, CalTrans often ignores its own directives, erecting sound walls and concentrating traffic along many such so-called scenic routes. If we are successful, that fate will not befall Water Temple Field. There is a healthy, living aquifer beneath the fine agricultural soil of this field. Quarrying there will destroy the aquifer and soil forever, displace many creatures and species of plant life, and create a dangerous hazard only a few hundred yards from our elementary school. If we are able to bring in organic farming and vineyard projects, the crops will provide food, and the income from the agricultural ventures will substitute for the income San Francisco planned to receive from the quarry. Such use would be in keeping with the charter of the San Francisco Water District and would be illustrative of environmentally and socially responsible watershed land usage. It is also crucial that Measure D stand the test of legal challenges. Developers must be made to comply with this law. This case has historic implications, since it is the duty of Alameda County to enforce its own laws, and not fight against them as it is doing in this case. The rights of citizens to expect responsible governance from elected officials will be greatly served by our victory in this case. Such a win would also strengthen Measure D and discourage developers - be they private or public entities - from destroying what is left of our county's open space and agricultural resources. The
ramifications of our lawsuit, extends and is not limited to other attempts
to preserve agricultural and watershed lands is far reaching. Precedent
regarding the legal strength of land use laws such as Measure D will
be set and applicable to many future struggles. We have sought and received
political support from other environmentally oriented groups including
Sierra Club, the Center for Biodiversity, and Greenbelt Alliance. During the EIR process for that permit, representatives of Alameda County and the SFPUC met with Sunolians to discuss the land use design. As the result of one of these workshops, various alternatives were generated, ranging from total use of the site for mining to keeping all mining to the other side of I-680. Save Our Sunol designed a comprehensive solution to meet San Francisco's financial requirements through a combination of organic farming, recreational and educational uses. This plan, Alternative S, was submitted to the SFPUC and rejected in favor of a combination of alternatives created by Mission Valley Rock and Alameda County. The chosen alternative called for mining of the entire site, once again entirely disregarding the wishes of the community. During the process of developing Alternative S, Save Our Sunol built relationships with Sibella Kraus of the Sustainable Agriculture Education Project and Ruth Brinker of Project Open Hand, as well as gourmet organic farmer Martin Bournhamesque. All were interested in using Water Temple Field to grow food, serve needy populations, and provide education. Donna and Keith Flavetta of Elliston Vineyards in Sunol presented San Francisco a plan to grow grapes on Water Temple Field. The SFPUC would not consider their proposal. Save Our Sunol sued Alameda County in June 1995, claiming the environmental impact report on the project was insufficient. Judge Mark Eaton ruled against SOS, though in his decision he stated that the project was disastrous for Sunol and chastised the citizens for not attempting a referendum to stop it. He claimed it was not his job to "second guess" the county, though the project's detractors view his decision as a failure of the checks and balances guaranteed by the U.S. Constitution. A resolution was written in March 1997 by the Sunol Glen School board opposing the quarry as a hazard to health and safety of its students. The school is located just several hundred yards from the expansion site. Save Our Sunol and its supporters lobbied San Francisco officials not to grant the lease to MVR for use of Water Temple Field for quarrying, while working to persuade San Francisco to restore and repair the Water Temple, damaged in the 1989 Loma Prieta earthquake and deteriorating from exposure. The restoration was included by the San Francisco Public Utilities Commission in its 1997 budget and was completed in the fall of 2000. Save Our Sunol was recognized at the re-dedication of the temple in September 2000 as having been instrumental in making the restoration happen. Mayor Willie Brown told the crowd of over 300 Sunolians, "Thank you for getting in our face about this. You made it happen. Keep up the good work!" Three months later, he lobbied the supervisors to approve MVR's lease to mine the land adjacent to the newly restored temple. Up
to the morning of the vote, Save Our Sunol members were told by aides
to the supervisors that we had enough votes to defeat the lease approval.
Representatives of Mayor Brown's office met with supervisors hours before
the vote and we were informed by our contacts that urgent offers were
made to several of our supporters to sway their votes. Of course, we
cannot prove that this is what happened, but when the roll call was
taken, only our staunchest allies, Supervisors Mark Leno and Tom Ammiano,
voted against the lease. All of the land we seek to spare, is to the west of the freeway, has never been excavated, and has always been used for agriculture. Furthermore, the field has been part of the viewshed for the Willis Polk Water Temple since the monument was built in 1910. The quarrying project is inappropriate for the site and would destroy a living aquifer and excellent soil for farming. Water Temple Field is currently in hay and grapes. We have interest from numerous sustainable agriculture organizations, organic farmers, and vineyards to use the land for crops and as a platform for educating the public and particularly area students, about organic farming and sustainable agriculture. Ultimately,
our goal is simply to preserve this pristine acreage in a way appropriate
to its location next to the temple. This lawsuit will also further define
the enforcement of Alameda County's Open Space Initiative, Measure D.
The measure, approved by voters in Nov. 2000, forbids development in
the unincorporated areas of the county without a favorable vote by the
electorate. Our test of its use stands to be instrumental in protecting
thousands of acres of open space in the county. |