Orange notified of its legal obligation to stop

concrete crushing at Sully-Miller site

October 2019

By Tina Richards

A letter from an attorney asking the City of Orange to stop the concrete crushing and stockpiling operation on the Sullly-Miller site bordering The Reserve and Santiago Canyon Road was received by the city, Sept. 23.

The letter from Orange Park Association Attorney John Edgcomb itemizes the reasons why the activity is unlawful, and why the city has the authority to shut it down. The circumstances supporting the demand are based on city documents, council and planning commission meeting minutes and ordinances within Orange’s municipal code.

The letter notes that imported concrete crushing and stockpiling are not authorized under the city’s sand and gravel ordinance (17.13 030), that the activity was, in 2003, deemed a nonconforming use that could not continue indefinitely, and that the operation is a public nuisance.

A temporary condition
Nonconforming use of property is permitted to allow a property owner to “amortize the private interest (equipment, facilities),” once the designated/zoned activity on a site ends. The city can, however, establish a reasonable period for that trasnsitory use to continue and, after that, stop the activity. The property’s main use was sand and gravel mining, which the city claims stopped in 1975.  

In 2002, property owner Hansen Aggregates proposed a three-year amortization period for concrete crushing that would cease in 2005. The city council approved the nonconforming use in 2003, but did not accept the three-year termination proposal. Minutes from that city council meeting show that Councilman Mike Alvarez had many questions about the activity, and wanted to know exactly “what was going on there?” His preference, meeting minutes indicate, was to shut it down. City staff was directed to “pursue the issue to the fullest extent.” It didn’t, and 14 years later the concrete crushing continues.  

When Milan Capital bought the property in 2007, it took advantage of the nonconforming use status that remained in place when Hansen sold it. It is not clear whether current owner Milan has any investment in equipment that it needs to amortize. It appears to have little standing to continue its concrete crushing operation under the Hansen agreement.

Off again, on again
In addition, nonconforming uses are not allowed if they stopped for a nonconsecutive one-year period over three years. In 2003, Hansen reported concrete crushing occurred only two or three times a year.  Under Milan’s ownership, crushing has been intermittent. A series of memos from Milan Capital Management in 2015 and 2016 suggest crushing occurred on just 19 days. Milan subsequently agreed to operate for no more than 15 days in a six-month period and upheld that schedule into 2018. The downtime exceeds one year in a three-year period; legally, the nonconforming use must be terminated.

Anyone familiar with the site will recognize it as a public nuisance. The Orange Municipal Code defines a public nuisance as “any property maintained in such a condition that it causes depreciation of surrounding property values; rubble, broken asphalt, concrete or other debris visible from a public street or adjoining property; conditions detrimental to the public health, safety or general welfare.” 

“Milan has created a blight on the neighborhood and a potential health hazard,” Attorney Edgcomb wrote. “The city has statutory authority to abate such nuisances.”

No reason not to
Residents who live next to the concrete crushing site have asked the city to “do something about it” for years.  Complaints, letters, emails, public testimony at council meetings have all been met with a shrug from city officials claiming, “They have a permit, there’s nothing we can do.”

Milan, it turns out, does not have a permit. 

Orange should, the attorney’s letter states, immediately schedule a hearing to consider the issues of amortization, time lapses in operation and public nuisance.  Any of those issues would be sufficient to terminate concrete crushing on the East Orange site.

The city reports that the letter was sent specifically to the city council and staff is, therefore, waiting for direction before taking any action.