CA Supreme Court to decide if developer can build homes in SLO County beach town
The California Supreme Court will decide this week whether a developer can build three new homes in a Los Osos neighborhood.
In 2019, San Luis Obispo County issued a coastal development permit to Shear Development Co. to build three homes on its Los Osos property, Pacific Legal Foundation attorney Jeremy Talcott said.
The California Coastal Commission appealed the county’s decision and revoked the permit, saying that the homes would be built on environmentally sensitive habitat area, known as ESHA.
The developer, however, said the commission shouldn’t have jurisdiction over the permit in the first place — as the county’s Local Coastal Program allows for development on those parcels of land, Talcott said.
The developer also disagreed that the property is ESHA, he said.
Pacific Legal Foundation is representing Shear Development Co. at the California Supreme Court free of charge.
“I think this is a clear example of the commission attempting to step outside the bounds of its governing statutes to kind of regulate anywhere it wishes,” Talcott said. “For us at (Pacific Legal Foundation), we see that as a core part of our mission, both to help landowners when they’re subject to these kinds of arbitrary abuses of government, but also to seek to keep these government agencies in line with the lawful regulations that govern them.”
The California Coastal Commission declined to comment on the pending litigation.
The California Supreme Court will hear legal arguments for the case on Wednesday.
Developer clashes with CA Coastal Commission
Shear Development Co. has been waiting to build those three homes for more than a decade.
In 2003, the developer bought eight lots in a residential neighborhood about a half mile away from Morro Bay, according to court documents submitted by Pacific Legal Foundation.
In 2004, the county issued a coastal development permit that allowed for construction to occur in two phases.
First, Shear Development could build four homes that would be reliant on individual septic systems. At the time, Los Osos didn’t have a community sewer system. Then, Shear could build the remaining homes when Los Osos had a community sewer.
The Coastal Commission appealed the permit to itself, and approved the construction of the first four homes — but ordered Shear to return to the county for a new coastal development permit to build the second group of homes, according to court documents.
By the time of the appeal, Shear Development had already installed underground utilities, retaining walls and certified building pads on the eight lots.
Shear Development built the first four homes, and years later in 2016, the county started operating the Los Osos sewage treatment plant — opening the door to a limited amount of new development in the community.
In 2019, the county gave the developer a coastal development permit to build three more homes on the property in question. The commission appealed that permit to itself, then denied it.
The Coastal Commission said it had jurisdiction over the permit because the property had more than one principally permitted use, which is the “most highly desired use of a property,” Talcott told The Tribune.
For example, the property in question is zoned as “residential single-family,” which means it has three principally permitted uses: the construction of single family dwellings, coastal access ways and passive recreation, Talcott said.
The Pacific Legal Foundation argued the Coastal Commission does not have the authority to dispute county-approved permits simply because a project would be built in an area with more than one principally permitted use.
The commission should defer to each community’s Local Coastal Program instead, Talcott said.
A Local Coastal Program is a plan developed by a local government in a coastal area to guide long-term development in its community. Those plans must be approved by the Coastal Commission in order to be adopted.
San Luis Obispo County’s Local Coastal Program said permits are only appealable to the commission if the project violates the principally permitted use — not if a project is planned for an area with more than one principally permitted use, Talcott said.
The commission already rubber-stamped the Local Coastal Program, so the commissioners shouldn’t contradict it, he said.
Meanwhile, the commission revoked the permit on the grounds that the project was planned for an environmentally sensitive habitat area, because the property includes Los Osos dune sands.
The commission used a map of dune sands included in the county’s Local Coastal Program to make this designation. That map, however, did not identify the property as ESHA.
The Local Coastal Program provides an official ESHA map that does not include the developer’s property, Talcott said.
Talcott said the commission took the dune sands map out of context, and ignored the official ESHA map when revoking the permit.
“What the commission did was, you know, cherry-pick through the LCP,” Talcott said. “If you look, again, at a holistic interpretation of this LCP, it’s clear that Shear’s property was not intended to be designated as any sort of environmentally sensitive area.”
Not only is Pacific Legal Foundation fighting for Shear Development Co’s right to develop its property — the law firm is also pushing back on what it views as a Coastal Commission power grab.
“This continues a long-standing pattern of the commission irrigating more and more power to itself,” Talcott said. “It’s already one of the most powerful land use agencies, probably in the entire country, and yet it is taking on even more authority.”
Both a superior court and an appellate court upheld the commission’s decision in 2021 and 2024, respectively.
The developer appealed the decision to the California Supreme Court, which will hear now the case on Wednesday.
