Orange’s ignorance of state requirements on Sully-Miller site brought to light by concerned citizens

June 2019

By Tina Richards

The City of Orange’s historical unwillingness to reckon with the aggregate mining operation that dominated the Sully-Miller site for decades has been called out in a detailed letter delivered to the city council by the Orange Park Acres Real Estate Committee and OP Association, May 14.

The letter, based primarily on the city’s own documents, disputes the city’s claim that it does not have to comply with state mining regulations because those activities ceased before the laws took effect. The city’s compliance, or lack thereof, is important because a developer now wants to build houses on that property.   

Since 1976, the State Mining and Reclamation Act (SMARA) has required mine operators to create a reclamation plan to ready land for other uses when mining was no longer viable. The lead agency (City of Orange) was tasked to ensure such a plan was developed and keep the state’s Mining and Geology Board apprised. Despite several requests to the mine operator from city staff in the late 1970s, no plan was forthcoming. The city made no further effort to comply with the mining act.

Don’t look now
The city’s lack of oversight became a problem when, in 1999, mine owner Hanson Aggregates agreed to sell the property to a housing developer, the Fieldstone Company. It became clear, at that time, that no reclamation plan was in place, and both the city and Hanson were in violation of state law.

Hanson subsequently produced aerial maps “proving” that mining had ceased prior to 1975, thus exempting it from mining act requirements. Then-city attorney Dave DeBerry, basing his legal opinion on those photos, told the state that SMARA did not apply and, in 2003, got the city off the hook. 

DeBerry, however, overlooked 30 years of city planning commission meeting minutes, resolutions and correspondence, indicating that the site continued to be mined for aggregates (sand and gravel) until at least 1985. Some references suggest it might have been even longer. 

SMARA, therefore, does apply.

The Fieldstone project was ultimately rejected for other reasons, and the sale fell through. Hanson subsequently sold the property outright to Milan Capital. That company’s first development proposal (Rio Santiago) was denied by the Orange Planning Commission and City Council in 2014, due to significant deficiencies in its EIR and overwhelming public opposition. Of interest, the environmental review document for that project reported that mining had occurred until 1995, but it did not include a reclamation plan, in compliance with SMARA.

Mixed messages
The Draft Environmental Impact Report (DEIR) for the currently proposed housing tract on the Sully-Miller site does not reference a reclamation plan. Instead, it follows the city’s lead, claiming that none is required. Ironically, the document prepared for this project mirrors its predecessor, stating that mining activities occurred on-site from 1919 until 1995.

Since the city erred in its 2003 declaration that SMARA did not apply to the site, the lack of a reclamation plan violates state law. Its absence from the DEIR violates the California Environmental Quality Act. If the city certifies the DEIR as it stands, it will expose itself (and taxpayers) to a legal challenge.

In addition, the state has designated the site an “area of regional significance” because aggregates are needed for construction and, therefore, are of value. That designation requires the city to develop a mineral resource policy that “recognizes the mineral information classified by the state geologist, manages land use that affects access to areas of statewide significance and emphasizes conservation and development of identified mineral deposits.”

State steps in
Orange was notified of the “area of regional significance” designation in 1993. The city’s 2010 general plan states, “The resource area land use designation allows for only aggregate extraction or recreation uses. It will protect areas from urbanization, making it possible to mine the areas at some future date, if necessary.”

Orange can request that designation be removed, but it must do so in a letter to the Mining and Geology Board, explaining why an alternate use should be considered. The state board must then hold a public hearing to weigh the merits of the request. Orange has not sent any such request to the state board, and the property remains an “area of regional significance.” 

The OPA letter asks the city to hold its own public hearing on the issue, to share “information pertinent to the current condition of the property.”

The city has not responded to the letter or to requests for comment.