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No Toxic Air, Inc. v. Lehigh Southwest Cement Co.

California Court of Appeals, Sixth District

July 28, 2016

NO TOXIC AIR, INC., Plaintiff and Respondent,
v.
LEHIGH SOUTHWEST CEMENT COMPANY et al., Defendants and Appellants

          Superior Court of Santa Clara County, No. 1-11-CV201900, Diane Ritchie, Judge.

Page 1137

         COUNSEL

         Harrison, Temblador, Hungerford & Johnson, Mark D. Harrison, Sean K. Hungerford and Adam K. Guernsey for Defendants and Appellants.

         Law Offices of Stuart M. Flashman and Stuart M. Flashman for Plaintiff and Respondent.

         Opinion by Rushing, P. J., with Premo and Elia, JJ. concurring.

          OPINION

          [205 Cal.Rptr.3d 354] RUSHING, P. J.

          The Permanente Quarry (Quarry) is a 3,510-acre surface mining operation producing limestone and aggregate for the manufacture of cement, and is located in an unincorporated area of Santa Clara County. The Quarry has been in existence since 1903, and is currently owned by Lehigh Southwest Cement Company and Hanson Permanente Cement (collectively " Lehigh" ).

         At issue in this case is the Santa Clara County Board of Supervisors' (County) 2011 resolution finding that the Quarry's surface mining operations are a legal nonconforming use.

         No Toxic Air, Inc. (No Toxic Air), is a non-profit organization that represents residents of Santa Clara County. No Toxic Air filed a petition for

Page 1138

peremptory writ of mandate challenging the County's March 1, 2011 resolution granting Lehigh legal nonconforming use status.

          [205 Cal.Rptr.3d 355] The trial court denied No Toxic Air's writ petition, affirming the County's resolution. No Toxic Air appealed the denial of the petition, arguing that the County's determination that the Quarry's surface mining rights were vested, and therefore eligible for legal nonconforming use status, was not supported by the evidence in the administrative record. We affirmed the decision of the trial court in No Toxic Air, Inc. v. Lehigh Southwest Cement Company (July 28, 2016, H039547) (nonpub. opn.).

         In this appeal, Lehigh challenges the trial court's grant in part of No Toxic Air's motion to tax costs associated with the preparation of the administrative record in the mandate proceedings. Lehigh asserts that as the prevailing party in the mandate proceedings, it is entitled to recoup costs associated with the preparation of the administrative record, including labor costs of paralegals and attorneys to assemble the record. We reverse the decision of the trial court.

         Statement ...


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