McCarthy v. Cal. Coastal Commission CA2/6

Filed 6/1/22 McCarthy v. Cal. Coastal Commission CA2/6
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
ROBERT EDWIN MCCARTHY 2d Civ. No. B309078
et al., (Super. Ct. No. CV130110)
(San Luis Obispo County)
Plaintiffs and Appellants,
v.
CALIFORNIA COASTAL
COMMISSION,
Defendant and Appellant.
This appeal arises under the California Coastal Act of 1976
(Coastal Act). (Pub. Res. Code, § 30000 et seq.)1 San Luis Obispo
County (County) granted the property owners’ application for a
coastal development permit. On appeal, the California Coastal
Commission (Commission) denied the permit on the grounds that
the adequacy of the on-site water well could not be determined
and that the project violated visual and scenic resources policies.
All further statutory references are to the Public
1
Resources Code unless otherwise stated.
The property owners petitioned for a writ of administrative
mandate. The trial court denied the writ, but found that the
Commission’s determination of the adequacy of the water well
was not supported by the evidence. Both parties appeal. We
affirm the denial of the writ and reverse the trial court’s finding
as to the adequacy of the water well.
FACTS
Robert and Judith McCarthy, individually and as trustees
of family trusts (the McCarthys), own a 37-acre parcel in an
unincorporated portion of the County. The parcel is in the
coastal zone and subject to the County’s local coastal plan (LCP).
The parcel is on a ridge facing the ocean and sits directly above a
public coastal access way.
The LCP delineates an urban services line. The LCP
prohibits water service extensions outside of the line without an
LCP amendment. The McCarthys’ property is located outside of
the line and there is no public water utility service to the
property.
The Project
The McCarthys sought authorization to construct a 5,500-
square-foot single family residence and a 1,000-square-foot
secondary residence located above a 1,000-square-foot detached
garage. The site improvements the McCarthys sought include
grading and paving of an access road, a 10,000-gallon water tank
for fire suppression, and an extension of a water line to deliver
water from County Service Area 12 (CSA-12).
Application to County
In 2010, the McCarthys applied to the County for a coastal
development permit for their project. In July 2011, the County
approved the McCarthys’ permit application subject to conditions.
2.
The permit allowed the extension of water lines for public water
service to the project from CSA-12.
Appeal to Commission
Two commissioners appealed the County’s permit approval
to the Commission. The appeal alleged that the permit violates
the LCP in providing water service outside of the urban services
line; in violating visual and scenic standards; in potentially
violating archaeological resources standards; in potentially
violating geologic hazard standards; in violating the
environmentally sensitive habitat standards; and in violating
public access policies.
The McCarthys filed a claim with the Commission alleging
that they have a vested right to water service from CSA-12 that
predates the Coastal Act, and thus their right to water service
from CSA-12 is not subject to the Coastal Act. At the request of
the McCarthys, the Commission agreed to hear the vested right
claim and the permit appeal at the same hearing.
The Commission staff recommended that the Commission
deny the McCarthys’ vested right claim. The staff determined
that neither the existence of a contract between CSA-12 and the
County’s flood control and water conservation district nor the
coastal development permit from the County gave the McCarthys
vested rights. The McCarthys did not undertake substantial
work and incur substantial liabilities in reliance on governmental
permits prior to the Coastal Act.
The staff recommended that the Commission approve the
coastal development permit subject to conditions, including that
water be provided by an on-site well instead of by CSA-12.
3.
After a hearing, the Commission voted to deny both the
McCarthys’ claim to a vested right to water service and their
application for a coastal development permit.
Because the staff’s recommendation to approve the permit
application was rejected by the Commission, the staff submitted
proposed revised findings. The revised findings were: (1) The
project has no public water supply and the reliability of the on-
site water well has not been established. The proposed project
cannot be approved because it does not have “a clearly
established LCP-consistent water supply.” (2) The visual impact
of the project on public places violates the LCP visual and scenic
resources policies.
In response to objections by the McCarthys, the staff
presented amended findings to the Commission. But the
amendments did not change the substance of the findings. The
Commission adopted the findings as amended.
Writ Petition and Complaint
The McCarthys’ petition and complaint alleged eight causes
of action. The first five causes of action petitioned for a writ of
administrative mandate to overturn the Commission’s decision
on denying the McCarthys’ vested rights claim and denying their
permit application. The remaining causes of action allege
violation of the Bagley-Keene Open Meeting Act, inverse
condemnation, and declaratory relief.
The McCarthys dismissed without prejudice the fourth
cause of action alleging denial of a fair hearing and the sixth
through eighth causes of action. The trial court denied the
McCarthys’ petition as to the remaining first through third and
fifth causes of action.
4.
In denying the writ causes of action, the trial court
determined that the Commission’s findings that the project
violated the LCP’s public works and visual and scenic resources
policies are supported by substantial evidence. Although it did
not affect the result, the court also determined that the
Commission’s finding relating to the suitability of the McCarthys’
on-site water well was not supported by substantial evidence.
DISCUSSION
I
Statutory Background
The Coastal Act requires a local government to prepare an
LCP for development in the coastal zone within the local
government’s jurisdiction. (§ 30500.) Once the local government
prepares an LCP, it must be certified by the Commission as being
in compliance with the Coastal Act. (§ 30512.) After the LCP is
certified, a party seeking to develop land within the coastal zone
must apply to the local government for a coastal development
permit. (§§ 30600, subd. (a), 30519, subd. (a).) The local
government can issue a coastal development permit only if the
proposed development conforms to the LCP. (§ 30600.5, subd.
(c).)
The local government’s action on an application for a
coastal development permit may be appealed to the Commission
by the applicant, any aggrieved person, or any two members of
the Commission. (§ 30625, subd. (a).) The Commission must
provide a “de novo public hearing” on the appeal. (§ 30621, subd.
(a).) The grounds for appeal are limited to whether the proposed
development conforms to the LCP and with the Coastal Act’s
public access provisions. (§ 30603, subd. (b).) After the public
5.
hearings, the Commission may approve, modify, or deny the
proposed development. (§ 30625, subd. (a).)
II
Standard of Review
Judicial review of the Commission’s decision is by writ of
administrative mandate pursuant to Code of Civil Procedure
section 1094.5. (§ 30801.) The questions on review are whether
the Commission proceeded in excess of its jurisdiction and
whether it abused its discretion. (Lindstrom v. California
Coastal Com. (2019) 40 Cal.App.5th 73, 93.) In determining
whether the Commission abused its discretion, we review the
entire record in a light most favorable to the Commission. (Ibid.)
We uphold the Commission’s decision if any reasonable person
could have reached the same decision. (Ibid.)
THE MCCARTHYS’ APPEAL
III
The Commission’s Timely Action on the Project
The McCarthys contend the project has been approved by
operation of law because the Commission failed to act on the
project within 21 days as required by sections 30622 and 30625,
subdivision (a).
In fact, the Commission acted to deny the McCarthys’
application for a coastal development permit within the 21 days
required by section 30625, subdivision (a). The McCarthys’
contention that the Commission failed to act on “the project” is
based on their own definition of “the project.” The McCarthys
contend the Commission was required to consider the project only
as it was approved by the County; instead, the Commission
considered the project as proposed by its staff. From this, the
6.
McCarthys conclude that the Commission did not consider the
project.
But the McCarthys’ conclusion is based on the false
premise that the Commission is required to consider the project
only as it was approved by the County. It is well established that
the Commission hears the permit application as if no local
government was previously involved. (Kaczorowski v. Mendocino
County Bd. of Supervisors (2001) 88 Cal.App.4th 564, 569.) The
hearing “ ‘is in no sense a review of the hearing previously held,
but it is a complete trial of the controversy, the same as if no
previous hearing had ever been held.’ ” (Ibid., quoting Collier &
Wallis, Ltd. v. Astor (1937) 9 Cal.2d 202, 205.) Thus, the
Commission is entitled to consider all relevant information,
including the report and recommendations of its staff. The
Commission is not limited to considering the project as approved
by the County. For purposes of the appeal to the Commission,
the County’s approval does not exist.
The Commission voted to deny the McCarthys’ application
for a coastal development permit. That denial includes the
project as originally proposed by the McCarthys, the project as
approved by the County, and the project proposed by the staff.
The denial means the McCarthys have no permit to proceed with
any project in any form. The denial, having been made on the
date of the hearing, is well within the 21 days of the hearing
required by the Coastal Act. But all is not lost for the
McCarthys. If the McCarthys wish to proceed in the future with
a project that complies with the LCP, they can reapply.
7.
IV
Revised Findings
The McCarthys contend the revised findings fail to reflect
the grounds for denial of the permit.
When the Commission takes action that substantially
differs from the staff recommendations, the staff must prepare
proposed revised findings. (Cal. Code Regs., tit. 14, § 13096,
subd. (b).) The Commission votes on whether to adopt the
proposed findings at a public hearing. (Id., subd. (c).) Here the
Commission voted to adopt the proposed revised findings.
First, the McCarthys argue the revised findings are not
accurate because the Commission took no action on the County-
approved project. But as we explained, the Commission considers
the matter de novo as if there were no County-approved project.
Second, the McCarthys challenge the revised findings on
the adequacy of the on-site water well as a post hoc
rationalization for denying the permit. But as we discuss under
the Commission’s appeal, there is more than an adequate basis
for the Commission’s conclusion that the suitability of the well
could not be determined. The conclusion was not simply a post
hoc rationalization.
The McCarthys argue that the Commission did not
specifically mention some of the problems with the on-site water
well at the hearing. But there was an extensive general
discussion on the adequacy of the well as a water supply and
what may result if it failed.
Moreover, the McCarthys cite no authority that the
findings must reflect only the discussions at the hearing. The
test is whether substantial evidence supports the administrative
agency’s findings and whether the findings support the agency’s
8.
decision. (Topanga Assn. for a Scenic Community v. County of
Los Angeles (1974) 11 Cal.3d 506, 514.) The McCarthys cite no
requirement that the Commission discuss at the hearing all the
evidence on which it relies.
Finally, the McCarthys claim that the revised findings fail
to satisfy the requirement in Topanga Assn. for a Scenic
Community v. County of Los Angeles, supra, 11 Cal.3d at page
515; that the findings provide the necessary specificity to bridge
the analytic gap between evidence and final action.
Here the revised findings cover 41 pages of the
administrative transcript exclusive of exhibits. They are finely
detailed. The revised findings are more than adequate to bridge
the analytical gap between the evidence and the Commission’s
decision.
The McCarthys claim the findings contain a misstatement:
that they (the applicants) did not accept a risk of well failure.
They fail to cite to a place in the record where the alleged
misstatement can be found. If the statement exists, we have not
found it. In fact, the revised findings state, “It appears the
applicants may be agreeing to use the on-site well on a temporary
basis to serve the development while continuing to pursue an
extension of water services in the future.” That statement
accurately reflects statements made by the McCarthys’
representative at the hearing. The revised findings also state,
“[T]he commission could condition a permit to require that the
[McCarthys] assume all risks for the well and its use (and only its
use) for the life of the project . . . .” Whether the McCarthys want
to accept the risk of well failure is irrelevant. It can be made a
condition of the permit.
9.
V
Visual Impacts
The McCarthys contend the project as recommended by the
Commission staff does not result in adverse visual impacts to
LCP-protected viewsheds.
The revised findings state, in part: “The approved project
does not conform to the LCP’s visual policies at the most basic
level because its scale and style are not subordinate to and not
consistent with the rural undeveloped hillside character of the
area and it will significantly degrade the public viewshed,
including particularly with respect to views associated with the
popular Pirates Cove accessway area.”
The Commission relied on the LCP Visual and Scenic
Resources Policies 1, 2, 4, and 5 and the Coastal Land Use
Ordinance (CZLUO) sections 23.04.210 and 23.07.164(e).
Policy 1 requires unique and attractive features of the
landscape, including scenic vistas and sensitive habitats, to be
preserved. Policy 2 requires permitted development to be sited to
protect views to and along the ocean. Policy 4 requires new
development to be designed, including height, bulk, and style, to
blend with the rural character of the area. Policy 5 requires
contours of finished surfaces to blend with the natural terrain.
CZLUO sections 23.04.210 and 23.07.164(e) provide
standards for preserving views in critical viewsheds and sensitive
resource areas.
(a) Application of Policy 1
The McCarthys argue that Policy 1, requiring the
protection of scenic vistas, does not apply.
The McCarthys point out that the revised findings rely on
chapters 6 and 7 of the LCP in the application of Policy 1 to their
10.
project. Chapters 6 and 7 designate Ontario Ridge, where the
project is located, as a sensitive resources area.
The McCarthys rely on a sentence from the introduction to
the LCP stating, “The text of this report, other than Chapter 8, is
for general planning guidance only and is not to be used as a
basis for approval or disapproval of development or land division
proposals.”
The sentence is puzzling. A land use plan that cannot be
used as a basis for the approval or disapproval of a proposed
development is not a plan at all. In addition, the sentence is
ambiguous. It refers to “[t]he text of this report.” It is not clear
to what it is referring. An LCP is not usually referred to as a
report. The McCarthys point to nothing in the text of chapters 6
and 7 or elsewhere in the LCP that would support their
argument.
Moreover, the interpretation given to the sentence by the
McCarthys would violate the Coastal Act. (§ 30500.) When the
Legislature required local governments to prepare an LCP, we
assume it meant a meaningful LCP. It did not intend a single
ambiguous sentence in the introduction to render entire chapters
meaningless and leave large swaths of the coast unprotected from
development. Nor did the Commission so intend when it
approved the LCP.
Whatever the sentence on which the McCarthys rely might
mean, it does not prevent the Commission from denying their
project
(b) Application of CZLUO Sections
The McCarthys contend that CZLUO sections 23.04.210
and 23.07.164(e) do not apply. They cite a provision from the
County’s Coastal Plan Policies. The provision states: “Many
11.
policies have been implemented in applicable ordinances. Each
individual numbered policy will state where it has been
implemented. When a policy has been implemented in ordinance,
the ordinance shall prevail in case of conflict with the policy.”
The McCarthys interpret the provision to mean that for the
standards in a CZLUO section to apply, the CZLUO section must
be cited in the policy. But that is not what the provision says.
The purpose of the provision is to clarify that where a policy has
been implemented in an ordinance, and there is a conflict, the
ordinance prevails. The provision states, “Each individual
numbered policy will state where it has been implemented.” In
context, it appears “will state” is more of a statement of fact than
a mandate. It makes it easier to correlate a policy with a
particular ordinance. But nowhere does the provision say the
failure to so state results in the ordinance being inapplicable.
There is no reason to interpret the provision as having such a
drastic effect, particularly where, as here, there is no conflict
between the policy and the ordinance.
Again, as above, the McCarthys take a single sentence from
a complex document – “Each individual numbered policy will
state where it has been implemented” – and argue it must be
interpreted so as to defeat a clearly stated policy. The LCP and
related documents are not perfectly drafted. But they clearly and
unequivocally state a policy for preserving scenic views. We
cannot take isolated sentences from such documents and
interpret them in ways that defeat a clear and unequivocal
policy. The paramount purpose of the Coastal Act is to preserve
coastal resources. We must interpret the LCP in ways that
promote, not frustrate, that purpose.
12.
(c) Impact on Public Views
The McCarthys contend their project does not impact a
public view corridor.
LCP Policies 2, 4, and 5 protect “public view corridors.”
The McCarthys point out that the LCP does not define “public
view corridors,” but it does designate specific sites as public view
corridors. Ontario Ridge, where the McCarthys’ property is
located, is not so designated. The McCarthys conclude that
Ontario Ridge is not a public view corridor.
But the LCP does not state that only designated sites can
be considered public view corridors. It is true that the LCP does
not give the Commission a blank check to designate just any area
as a public view corridor. But here the Commission had more
than ample evidence to support that designation.
The project is a 5,500-square-foot multiple story residence
with a 1,000-square-foot residence above a detached garage. The
McCarthys provided photo-simulations and artist renderings
showing the project from various viewpoints. Commission staff
viewed the site on numerous occasions and from various vantage
points. The project would be constructed on a hillside that forms
a major scenic backdrop for the coastal area of Avila and Pismo
beaches. It would be visible from numerus public areas including
the Pirates Cove parking and overlook areas, the public trail
between Avila Beach and Pismo Beach, as well as other public
trails and Cave Landing Road. More distant views would include
the Avila Beach Pier, various areas within Port San Luis, and
Palisades Park.
The McCarthys do not contest the evidence.
The McCarthys point to the definition of “[s]cenic corridors”
in the County’s general plan. It defines them as “view areas, or
13.
‘viewsheds’ from popular public roads and highways that have
unique or outstanding scenic qualities.” The general plan lists
the scenic roads and highways. The McCarthys argue their
property is not visible from any of the designated roads or
highways.
The argument has several flaws. First, the terms “scenic
corridors” and “public view corridors” are not the same. “Scenic
corridors” are limited to highways and roads. “Public view
corridors” are not so limited. The term “public view” indicates
any view from a public place.
Second, the Commission is limited to determining whether
the project complies with the LCP. (§ 30603, subd. (b).) It
certifies only the LCP, not the general plan. (§ 30512.)
Third, the general plan provides that in the event of a
conflict, the LCP prevails.
(d) Rural Character
The McCarthys contend Policy 4, requiring that
development in rural areas blend with the rural character of the
area, does not apply because their property is not in a rural area.
The McCarthys point out that the LCP states, “The rural
area includes all lands outside of the urban reserve lines for Avila
Beach . . . .” They also point to the definition of “rural area”
contained in the County’s CZLUO as “[a]ny area or land use
category outside of the urban or village reserve lines established
by the [land use element of the general plan].” The McCarthys’
property is inside the urban reserve lines for Avila Beach.
But Policy 4 refers to “rural areas” only in its heading. The
text of the policy provides, in part, “Visual and Scenic
Resources Policy 4 – New Development in Rural Areas. New
development shall be sited to minimize its visibility from public
14.
view corridors. Structures shall be designed (height bulk style) to
be subordinate to, and blend with, the rural character of the
area.”
The purpose of the policy is to protect public views by
requiring structures to blend with “the rural character of the
area.” An area may have a “rural character” even though it does
not fall within the technical definition of a “rural area.” In
interpreting a numbered policy stated in the LCP, the purpose
and text of the policy must prevail over the heading.
Here the County designates the McCarthys’ property as
“rural residential.” The McCarthys own permit application
describes the land surrounding their property as “vacant.” Aerial
photographs accompanying the application show the property as
rural in character. Commission staff, who have viewed the
property a number of times, determined that the property is rural
in character. There is an abundance of evidence to show the
“rural character of the area” in which the McCarthys’ property is
located.
The McCarthys argue the Commission’s reliance on the
County’s designation of their land as “rural residential” is
misplaced. They point out that there is a separate zoning
designation for “rural lands.” The “rural lands” designation is
related to agriculture. But the County designated the
McCarthys’ parcel as “residential rural.” It is irrelevant that
there is another designation for “rural lands” relating to
agriculture.
15.
COMMISSION’S APPEAL
VI
Adequacy of On-Site Water Well
The Commission contends the trial court erred in
determining that the Commission’s finding relating to the
suitability of the on-site water well was not supported by
substantial evidence.
Ordinarily, when a project depends on an on-site water
well, the County would have reviewed the on-site well’s
suitability as part of its approval process. In this case, however,
the County’s approval of the McCarthys’ development permit was
based on extending public water service lines to the McCarthys’
property. Thus, it was left to the Commission to review the
suitability of the well in the first instance.
The Commission did not find the water well was
unsuitable. Instead, it found only that the well’s suitability could
not be determined from the record.
The LCP Public Works Policy 1 provides, in part: “New
development . . . shall demonstrate that adequate public or
private service capacities are available to serve the proposed
development.” Thus, the burden is on the McCarthys as the
proponents of the new development to demonstrate that their on-
site water well is suitable for their project. The Commission’s
finding that the suitability of the well could not be determined is
simply another way of saying that the McCarthys failed to carry
their burden of proof.
The Commission is concerned not only with the suitability
of the water well in the short term, but also with the viability of
the well for the life of the project, many decades into the future.
The fear is that should the well fail, it will pressure the County to
16.
extend public water lines into the area, leading to more intense
development.
At the hearing, the McCarthys’ representative stated that
the McCarthys would accept a permit with use of the on-site well
as a condition, but they would continue to seek the extension of
public water lines to their property. The Commission could take
that as an admission that the long-term viability of the well is at
least questionable. That admission alone is sufficient to support
the Commission’s finding.
In addition, the revised findings state that the well was
tested in May 2010. As to quantity, it produced 20 gallons per
minute, which exceeds the County’s requirements for a single-
family residence. But the McCarthys submitted no recovery data
to verify the results. As to quality, the revised findings stated
that the water had not been tested for the presence of cyanide
and that the test results for coliform bacteria simply indicated it
is present without specifying how much.
Those findings are supported by a letter from the County
Health Agency to the McCarthys’ planning consultants
commenting on its “initial review of the submitted well
documents.” In fact, the findings are based directly on the letter.
The McCarthys challenge the findings as not based on fact.
As to the lack of recovery data from the well pump test, the
McCarthys point out that the County’s letter states, “This office
would expect that the hydrogeologist who performed the testing
would have this data available and that it was simply omitted
from the summary provided to this office.”
The well recovery data makes it possible to accurately
determine the flow rate of the well. That the hydrogeologist who
performed the pump test may have this information is of no help.
17.
The Commission can only decide on the information presented to
the Commission. Without the recovery data, the Commission
was justified, indeed compelled, to conclude the suitability of the
well could not be determined. The McCarthys argue that the
presence of coliform bacteria requires no further testing. They
refer to the County’s letter as requiring no more than the
addition of chlorine and an inspection of the surface of the well
for structural problems. But that is not what the letter says.
The letter says, “Prior to consumption or extended contact with
the well water, a confirming Bacteriological test should be
performed.”
The McCarthys argue the well was tested for cyanide. That
appears to be true. But the other gaps in the testing support the
Commission’s decision.
The McCarthys also point out that the County’s letter
concluded that the well is suitable for residential use. But the
Commission is not bound by that finding. (See Kaczorowski v.
Mendocino County Bd. of Supervisors, supra, 88 Cal.App.4th at
pp. 569-570.) In fact, given the gaps in information, one wonders
how the County could have reached that conclusion.
In order to reverse the Commission’s decision, the
McCarthys must show that no reasonable person could have
reached the same conclusion. (Greene v. California Coastal Com.
(2019) 40 Cal.App.5th 1227, 1235.) Here the state of the record
shows the Commission could not have reasonably reached any
conclusion other than the one it reached. The McCarthys point to
no evidence that would compel the Commission to conclude the
McCarthys carried their burden of demonstrating that the well is
adequate to serve their property for the life of the project.
18.
DISPOSITION
The trial court’s ruling on the suitability of the on-site
water well is reversed. In all other respects, the judgment is
affirmed. Costs are awarded to the Commission.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
PERREN, J.
19.
Martin J. Tangeman, Tana L. Coates, Judges
Superior Court County of San Luis Obispo
______________________________
Nossaman, John J. Flynn III, Gregory W. Sanders, and
David J. Miller for Plaintiffs and Appellants.
Rob Bonta, Attorney General, Daniel A. Olivas, Assistant
Attorney General, and Andrew M. Vogel, Deputy Attorney
General, for Defendant and Appellant.
20.