Sierra Club sues SLO County Board of Supervisors over ‘brazen violation of the law’

San Luis Obispo County Board of Supervisors were divided on their vote affecting the Cox Tract in rural Arroyo Grande.
San Luis Obispo County Board of Supervisors were divided on their vote affecting the Cox Tract in rural Arroyo Grande. dmiddlecamp@thetribunenews.com

The Sierra Club has sued the San Luis Obispo County Board of Supervisors over a contentious 2018 land use decision, saying it could encourage developers to sidestep the legal process of creating subdivisions by using century-old maps.

On Oct. 2, the board majority —Supervisors Debbie Arnold, Lynn Compton and John Peschong — went against the recommendations of county staff and warnings by county attorneys when it voted to rely on a map made in 1905 to recognize 12 separate parcels on a property owned by the Dennis Fesler Family Trust in rural Arroyo Grande.

That ruling gave the Trust the ability to build homes or further develop each lot without going through a subdivision process that generally includes an environmental review.

The trust said the documents were for the purpose of managing inheritance.

The lawsuit asserts the decision was “not supported by substantial evidence” and was “contrary to well-established legal precedent.”

The Planning Department initially denied the request, saying the 1905 map of the property at 2025 Lopez Drive “did not create separate legal parcels that are recognized under today’s Subdivision Map Act” and that the grandfather clause of the law does not apply “because there were no laws in effect at that time that regulated design and improvement,” arguments that were repeated by county attorney Tim McNulty, who has since retired.

Attorneys for the trust argued that the map showing lot lines had been used by the county dozens of times, adding that the county had issued certificates for two other parcels on the property based on that map.

The board overturned the county’s rejection on appeal, relying on the legal argument written by the landowner’s representatives.

An attorney representing the Sierra Club called the board’s decision “one of the most egregious actions taken by the board this year.”

“In order to vote the way they wanted, the board majority had to ignore current case law, the advice of their professional planning staff and the strong warnings of the County Counsel’s Office. It was a brazen violation of the law,” attorney Babak Naficy said in a news release about the lawsuit.

The county did require the Fesler Family Trust to take on defense and indemnity of the county in case the county was sued over the decision, at the request of McNulty. That means that the landowner is expected to be responsible for defending the county’s decision, including all legal costs.

“The board majority’s decision to grant certificates of compliance based on an antiquated tract map violates the requirements of the Subdivision Map Act, which was designed to ensure that subdivisions reflect modern land-use planning and environmental review,” said Sue Harvey, co-chair of the Sierra Club’s Santa Lucia Chapter.

Conversation leading up to the vote sparked heated debate during supervisor meetings in July and October.

In a July 17 meeting, Supervisor Adam Hill called the decision “an abuse of process,” and Supervisor Bruce Gibson accused Compton of ignoring staff recommendation “because a campaign donor came and asked for a favor.”

Dennis Fesler contributed $198 to Compton’s June 2018 re-election campaign, according to public campaign finance documents.

“It is not true,” Compton said. “To me, this is a property rights issue.”

Both Peschong and Arnold reiterated the importance of property rights in the June conversation, as well as the evidence that the map had been used by the county in the past.

Still, McNulty warned that the decision could have broad implications.

“My concern ... has to do with the number of maps like this that exist all over the county and the situation that is going to perhaps apply to all of them that would be the equivalent to this situation here,” McNulty said.

“We have a provision that would allow a subdivision here at this property, and we’re choosing to go another route. That’s going to open up the door for more than Mr. Fesler,” McNulty added.

“The reason we have a subdivision process is to ensure subdivisions come with things like curb, gutter, sidewalk, drainage, (and fees) ... all of those things ... we won’t be able to receive by way of entitlement (if certificates are issued),” he said.

Compton disagreed.

“This does not have to set precedent for every antiquated map in the county,” Compton said. In the case of the 1905 map, she said, “We recognized it 30 times. It was on our wall. There are improvements that have been made on these lots.”

The Sierra Club announced Friday that the organization filed suit in San Luis Obispo Superior Court.

“If allowed to stand, the board’s decision will invite dozens of landowners in the county who are in possession of antique subdivision maps to demand they be allowed to take the same shortcut to development,” the Sierra Club news release said.

“The Sierra Club’s lawsuit seeks to invalidate the certificates approved by the supervisors and require the county and the trust to pursue a subdivision process reflecting the principles of modern land-use planning.”

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