Other Voices: Land use concerns a government affair
LDA-786 and the proposed asphalt plant in Meadow Vista should be of interest to both Placer and Nevada County residents. The location of the plant on or near the Bear River impacts not only Meadow Vista residents but also those people living along Lake Combie.
LDA-786 is a conditional use permit that is “vested” and, as such, is considered a “property right.” It cannot be revoked without the county conducting a hearing.
However, even a “vested permit” can be revoked if it affects the health, safety and welfare of the community and surroundings. The Supreme Court, in the 1887 case Mugler v. Kansas, ruled that “all property in this country is held under the implied obligation that the owner’s use of it shall not be injurious to the community.”
The controversy over this permit has been going on since 2005, when Teichert Construction proposed putting an asphalt plant at the site. The Placer County Council responded with a memorandum to the planning commission, outlining areas of concern regarding Chevreaux’s ability to comply with the 12 conditions of the permit, one of which involved restrictions on discharges onto the Bear River.
As noted in the California Water Agency Executive Officer’s Report, dated September, 2006, on Aug. 12, 2006, a complaint was made by a property owner, located downstream from the Chevreaux operation. The complaint documented a “white foamy substance,” appearing on the surface of Lake Combie. According to the report, the “volume of washwater that was released into Lake Combie was not known.” The discharger stated that “root or a rodent may have opened a small hole through the dike to allow the discharge.”
If discharge into the river is a problem now, wouldn’t asphalt production so close to the Bear River raise even more concerns? According to the Water Agency report, “volume of washwater” released was unknown. The report was made only because someone happened to observe the discharge. How much discharge released went unnoticed? Why wasn’t water quality mentioned in the Planning Director’s May 18, 2007 letter, affirming the validity of LDA-786? Why isn’t the county concerned about the continued impact of the permit on the health and welfare of the community and the environment?
A business has the same level of responsibility to act as a “good neighbor” as an individual. Just because LDA-786 is considered a “property right,” does not mean that the owner of the permit is not absolved from responsibility to act in a manner that does not adversely affect the health and welfare of the community. Placer County residents don’t have unrestricted use of their property. Take into consideration the fact that residents are prohibited from burning trash on days designated by the county.
The quarry’s surroundings and environmental laws have changed dramatically since LDA-786 was issued over 35 years ago. A conditional use permit, with no conditions, issued into perpetuity should trigger some response from the planning commission. Instead, the planning commission seemed unsure, during their July 12 meeting, on how to even conduct a revocation hearing.
The Court explained in the case of Benton V. Kernan, that “we appreciate that the operation of a quarry is not a nuisance per se … it may easily become one when carried on in a residential district.” To paraphrase, “a nuisance may be merely a right thing in the wrong place” like a pig in the parlor, instead of the barnyard.”
In other words, an asphalt plant is not intrinsically bad. We all drive on roads, paved with asphalt, and Chevreaux Inc. has a long history of good works and of providing aggregates to the community. The focus, however, should continue to be the central issue of government’s responsibility to remedy health, safety and welfare concerns, when land use negatively impacts the community.
The July 12 hearing by the planning commission only addressed the legal definition of “vested,” as presented by the Planning Director in his letter to Chevreaux’s attorney. During public comment, the question was posed to the commission on what actions, by the operator, would trigger California Environmental Quality Act (CEQA) review. Does a wash water spill into Lake Combie constitute grounds for a revocation hearing, in regard to LDA-786?
Protection of streams, rivers and waterways is a federal mandate, dating back to 1899. This mandate expands in 1969 to encompass laws that regulate and mitigate the impacts of pollution on fish and wildlife. The current CEQA evolved from these laws and is an intrinsic part of American society. The ripple effect of LDA-786 appears to be moving from Placer County to Nevada County.
Linda Lodwig lives in Meadow Vista.
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