McCarthy v. Cal. Coastal Comm'n

• Decision Date: 01 June 2022
• Docket Number: 2d Civ. B309078
• Parties: ROBERT EDWIN MCCARTHY et al., Plaintiffs and Appellants, v. CALIFORNIA COASTAL COMMISSION, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

ROBERT EDWIN MCCARTHY et al., Plaintiffs and Appellants,
v.
CALIFORNIA COASTAL COMMISSION, Defendant and Appellant.

2d Civ. No. B309078

California Court of Appeals, Second District, Sixth Division

June 1, 2022

NOT TO BE PUBLISHED

Superior Court County of San Luis Obispo No. CV130110 Martin J. Tangeman, Tana L. Coates, Judges

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.

GILBERT, P. J.

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.

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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.

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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.

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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.

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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

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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

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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...