Hansen Brothers Enterprises, Inc. v. Board of Supervisors , 12 Cal. 4th 533 ( 1996 )

WERDEGAR, J.

? I concur. I write separately to articulate my understanding of what the plurality opinion has determined about the vitality of the diminishing asset doctrine and its application to this case.

First and foremost, California recognizes the diminishing asset doctrine. Second, in applying the doctrine to this case and determining the nature of the existing nonconforming use, we look to Hansen Brothers Enterprises, Inc.’s, Nevada County operation with all of its component parts as a whole. Thus, Hansen Brothers’ entire operation of placer mining and rock quarrying to produce aggregate is the existing nonconforming use. Third, the diminishing asset doctrine permits Hansen Brothers to quarry, as part of the existing nonconforming use, any area of the property for which it can satisfy the doctrine’s requirements. Specifically, Hansen Brothers must show “ ‘that the area [it] desires to excavate was clearly intended to be excavated [when the land-use ordinance became effective], as measured by objective manifestations and not by subjective intent . . . .’” (Plur. opn., ante, p. 556, italics omitted.)

As the plurality opinion explains, the record is not presently adequate to permit us to decide whether the diminishing asset doctrine assists Hansen Brothers and, if it does, how far from the river the doctrine might permit Hansen Brothers to move its quarrying operations. Past activities on the hillside may be relevant to this issue. The rock-quarrying aspect of the business, however, has taken place primarily, if not exclusively, near the river rather than farther up the hillside. While the record suggests that some activity occurred farther up the hillside, it does not establish what, exactly, that activity was or whether it occurred before or after the zoning ordinance took effect. If Hansen Brothers were to satisfy the requirements of the diminishing asset doctrine as to part or all of its property, then the quarrying of those areas would be exempt from the ordinance’s permit requirement as part of the existing nonconforming use. What the trial court must decide on remand, as to this issue, is whether and, if so, to what geographical extent the requirements of the diminishing asset doctrine have been satisfied.

With this understanding, I concur in the plurality opinion.

Lucas, C. J., concurred.