Superior Court of Santa Clara County, No. 1-11-CV201900,
Diane Ritchie, Judge.
Temblador, Hungerford & Johnson, Mark D. Harrison, Sean K.
Hungerford and Adam K. Guernsey for Defendants and
Offices of Stuart M. Flashman and Stuart M. Flashman for
Plaintiff and Respondent.
by Rushing, P. J., with Premo and Elia, JJ. concurring.
Cal.Rptr.3d 354] RUSHING, P. J.
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 "
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
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
peremptory writ of mandate challenging the County's March
1, 2011 resolution granting Lehigh legal nonconforming use
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.).
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.