Filed 2/21/24 Shear Development Co. v. Cal. Coastal Commission CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion 

has not been certified for publication or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

SHEAR DEVELOPMENT 

CO., LLC,

 Plaintiff and Appellant,

v.

CALIFORNIA COASTAL 

COMMISSION,

 Defendant and Respondent.

2d Civil No. B319895

(Super. Ct. No. 20CV-0431)

(San Luis Obispo County)

The California Coastal Commission (the Commission) has 

limited jurisdiction to consider an appeal from a decision by San 

Luis Obispo County (the County) to grant a coastal development 

permit. (Pub. Resources Code, § 30603, subd. (a).) 1 Here, the 

County granted a development permit allowing appellant Shear 

Development Co. to build three single family homes in Los Osos. 

1 All statutory references are to the Public Resources Code 

unless otherwise stated.
2

The Commission appealed that decision to itself and denied the 

permit. Shear Development filed a petition for writ of mandate 

to reverse the Commission’s denial. The Superior Court denied 

the writ. On appeal, Shear Development contends the 

Commission lacked jurisdiction to hear the appeal and abused its 

discretion in denying the permit. We affirm.

Facts

In 2003, appellant Shear Development acquired eight lots 

in Los Osos. The lots are located near properties developed with 

single family homes, although there are also undeveloped vacant 

lots nearby. Appellant’s lots are zoned for single family homes. 

Appellant performed grading work and installed improvements 

including landscaping, retaining walls, roads, sidewalks, storm 

drainage and underground utilities. The utilities include water 

and sewer mains and sewer laterals. 

In 2004, the County approved a coastal development permit 

to eventually allow the development of eight single family houses 

on the lots. The project was to proceed in two phases. Phase I 

authorized the construction of four single family houses on four of 

the lots. Phase II contemplated construction of single family 

houses on the remaining lots. The coastal development permit 

obtained for Phase I specified that the houses included in Phase 

II “are required to be served by the new community sewer 

system. The County placed a scenic easement on [the Phase II 

lots] to assure that these residences could not be developed until 

after sewer completion . . . .” The Commission further required 

appellant to submit final plans for Phase I that included a 

notation indicating “future development of [the Phase II lots] is 

subject to a separate coastal development permit.” 
3

In 2010, following County approval, the Commission 

granted a coastal development permit authorizing construction of 

the Los Osos Wastewater Project (LOWWP). As a condition of 

issuing the permit, the County agreed to Special Condition No. 6 

which provides, “Wastewater service to undeveloped properties 

within the service area shall be prohibited unless and until the 

Estero Area Plan is amended to identify appropriate and 

sustainable buildout limits, and any appropriate mechanisms to 

stay within such limits, based on conclusive evidence indicating 

that adequate water is available to support development of such 

properties without adverse impacts to ground and surface waters, 

including wetlands and all related habitats.” 

Appellant built the four houses authorized in Phase I. 

When the LOWWP was completed in 2016, those houses were 

connected to the community sewer. 

Appellant then applied to the County for a coastal 

development permit to construct Phase II, the remaining four 

houses. It later modified the proposed development by reducing 

the number of houses to three. The County granted a coastal 

development permit for Phase II in 2019. 

The Commission appealed that decision to itself and 

eventually denied the coastal development permit. It found the 

permit application was appealable because the project is located 

in a sensitive coastal resource area and because the proposed 

project is not “the principal permitted use” for the applicable 

zoning category. The Commission denied the permit because it 

found the project was inconsistent with development standards 

for environmentally sensitive habitat areas (ESHA) and because 

the project site does not have adequate access to water and 

wastewater services. 
4

Appellant filed a petition for writ of mandate to overturn 

the Commission’s decision and reinstate the development permit. 

The Superior Court denied the writ after concluding the project 

was located in a sensitive coastal resource area (SCRA) and 

lacked access to water and wastewater services. It rejected the 

Commission’s contentions that the project was located in an 

ESHA and did not fall within the principally permitted use for 

the applicable land use category. Similarly, the Superior Court 

concluded the Commission lacked substantial evidence to support 

its finding that the project was inconsistent with ESHA policies 

included in the County’s local coastal program (LCP).

Statutory and Regulatory Framework

The Coastal Act contemplates that each local government 

“lying, in whole or in part, within the coastal zone shall prepare a 

local coastal program for that portion of the coastal zone within 

its jurisdiction.” (§ 30500, subd. (a).) After the Commission 

certifies a LCP as consistent with the Coastal Act (§ 30512), its 

authority to review and authorize development proposals in the 

coastal zone is delegated to the local government. (§ 30519, subd. 

(a).) The Commission then has limited statutory authority to 

consider appeals from development decisions made by the local 

government. (§ 30603.)

Section 30603 provides that, after the Commission certifies 

an LCP, “an action taken by a local government on a coastal 

development permit application may be appealed to the 

commission for only the following types of developments: . . . (3) 

Developments approved by the local government . . . that are 

located in a sensitive coastal resource area. (4) Any development 

approved by a coastal county that is not designated as the 
5

principal permitted use under the zoning ordinance or zoning 

district map . . . .” (Id., subd. (a).)

San Luis Obispo County has a certified LCP comprised of 

the county’s Coastal Zone Land Use Ordinance (CZLUO), several

local area plans governing different geographic regions in the 

county, official maps and other policy and planning documents. 

Development policies, programs and standards governing Los 

Osos, including the site of appellants’ proposed development, are 

included in the Estero Area Plan (EAP). 

The San Luis Obispo County Code (County Code) provides 

that a county decision on an application for a coastal 

development permit is appealable to the Commission if, among 

other things, the proposed development is “located in a Sensitive 

Coastal Resource Area, which includes: (i) Special marine and 

land habitat areas, wetlands, lagoons, and estuaries mapped and 

designated as Environmentally Sensitive Habitats (ESHA) in the 

Local Coastal Plan. Does not include resource areas determined 

by the County to be Unmapped ESHA.” (County Code, § 

23.01.043 (c)(3)(i).) The Commission’s appellate jurisdiction also 

extends to “Any approved development not listed in Coastal Table 

O, Part I of the Land Use Element as a Principal Permitted (P) 

Use.” (Id., subd. (c)(4).) 

Contentions

The first question here is whether the County’s decision to 

issue a coastal development permit for appellant’s project is 

appealable to the Commission because the proposed development 

is situated in an SCRA or because the type of development is not 

the “principal permitted use” for the project site. Appellant 

contends the project site is not located in an SCRA because no 

county map shows the site as being located in a “mapped” ESHA. 
6

Appellant further contends the permit is not appealable because 

the project involves the construction of three single family homes 

and single family residential is one of the principally permitted 

uses for the zoning district in which it is located. 

The Commission contends it has appellate jurisdiction 

because Figure 6-3 in the Estero Area Plan designates the project 

site as an SCRA containing ESHA. In its cross-appeal, the

Commission contends the permit is also appealable under County 

Code section 23.01.043(c)(4) because the County has designated 

multiple principally permitted uses for every zoning category. 

Because there is no single principally permitted use, no use 

qualifies as the principally permitted use within the meaning of 

the Coastal Act (§ 30603, subd. (a)(4)), or the County Code. 

Assuming the permit was appealable to the Commission,

appellant contends the Commission abused its discretion in 

denying it because the project has access to water and 

wastewater services and is consistent with the LCP’s policy

regarding ESHAs. The Commission disagrees. It contends the 

project site lacks permitted access to water and wastewater 

services and that the project does not meet standards for 

development in an ESHA.

Standard of Review

In this appeal from the trial court’s order denying a writ of 

mandate, we are required to determine whether the Commission 

acted in excess of its jurisdiction or prejudicially abused its 

discretion by not proceeding in the manner required by law. 

(Code Civ. Proc., § 1094.5, subd. (b); Schneider v. California 

Coastal Com. (2006) 140 Cal.App.4th 1339, 1343.) Where the 

agency’s jurisdiction “involves the interpretation of a statute, 

regulation, or ordinance, the issue of whether the agency 
7

proceeded in excess of its jurisdiction is a question of law.” 

(Schneider v. California Coastal Com., supra, at p. 1344.) We 

independently review the question whether the Commission’s 

exercise of jurisdiction here is consistent with the Coastal Act. 

(Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 

Cal.4th 1, 11 fn. 4; Security National Guaranty, Inc. v. California 

Coastal Com. (2008) 159 Cal.App.4th 402, 414.) 

The Commission abuses its discretion if it “has not 

proceeded in the manner required by law, the order or decision is 

not supported by the findings, or the findings are not supported 

by the evidence.” (Code Civ. Proc., § 1094.5, subd. (b).) In 

determining whether findings are supported by substantial 

evidence, we review the findings “in the light of the whole 

record.” (Id., subd. (c).) This standard requires us to consider all 

relevant evidence in the record, both evidence that supports the 

Commission’s findings and evidence that detracts from those 

findings. (La Costa Beach Homeowners’ Assn. v. California 

Coastal Com. (2002) 101 Cal.App.4th 804, 814.) We may reverse 

the Commission’s decision only if, “‘based on the evidence before 

the agency, a reasonable person could not reach the conclusion 

reached by the agency.’” (Ibid.) 

Discussion

Jurisdiction: Sensitive Coastal Resource Area. Both the 

Coastal Act and the County’s Coastal Zone Land Use Ordinance 

(CZLUO) provide that a coastal development permit approved for 

a development located in a Sensitive Coastal Resource Area is 

appealable to the Commission. (§ 30603, subd. (a)(3); County 

Code, § 23.01.043, subd. (c)(3).) Both the statute and the 

ordinance define a Sensitive Coastal Resource Area as 

“identifiable and geographically bounded land and water areas 
8

within the coastal zone of vital interest and sensitivity.” 

(§ 30116; County Code, § 23.11.030 [pp. 379, 405 of 414].) The 

CZLUO further provides that appealable developments are those 

“[a]s set forth in Public Resources Code Section 30603, 

[subdivision] (a), and this title . . . .” (County Code, § 23.01.043, 

subd. (c).) Appealable permits include those for projects “that are 

located in a Sensitive Coastal Resource Area, which includes: (i) 

Special marine and land habitat areas, wetlands, lagoons, and 

estuaries mapped and designated as Environmentally Sensitive 

Habitats (ESHA) in the Local Coastal Plan.” (Id., subd. (c)(3)(i).)

The Estero Area Plan (EAP) contains “policies, programs 

and standards” applicable to the community of Los Osos and the 

site of appellant’s proposed development. Chapter 6 of the EAP 

“identifies special features of the environment, discusses relevant 

issues, sets policies, and recommends programs to implement the 

relevant goals and policies of this plan.” “Combining 

designations” included in this chapter identify sensitive, scenic 

and other special features of the environment. Areas that fall 

within these combining designations require “more detailed 

project review” to “avoid adverse environmental impacts.” One of 

the combining designations is for Sensitive Resource Area, 

defined as “ecologically important areas, such as wetlands, 

marshes, sand dunes, natural plant communities, habitat for rare 

and endangered plans and animals, and sensitive watershed.” 

Chapter 6 of the EAP identifies the Los Osos Dune Sands 

Habitat as an SRA. Portions of the same area are also identified 

as an environmentally sensitive habitat. The EAP explains that 

the Los Osos Dune Sands Habitat “is comprised of sandy soils –

primarily ‘Baywood fine sands,’ as identified by the Natural 

Resources Conservation Service in the Soil Survey of San Luis 
9

Obispo County, Coastal Part (See Figure 6-3). These sands also 

underlie some areas outside of Los Osos, and occur in the city of 

Morro Bay. The areas underlain by these sands outside of Los 

Osos are included in the Sensitive Resource Area combining 

designation and are also an Environmentally Sensitive Habitat 

(Terrestrial Habitat).” 

Figure 6-3 is a map of the Los Osos Dune Sands. The 

project site is located within the dune sands area depicted on that 

map. This constitutes substantial evidence supporting the 

Commission’s findings that the project is located in an SRA and 

that the development permit is therefore appealable to the 

Commission. (See, e.g., Charles A. Pratt Construction Co., Inc. v. 

California Coastal Commission (2008) 162 Cal.App.4th 1068, 

1077 [map identifying area as a “‘sensitive resource area[] that 

[is] also environmentally sensitive habitat[]’” was substantial 

evidence for Commission’s ESHA finding].)

Appellant contends Figure 6-3 is not sufficient to designate 

the project site as being within an SCRA because section 

23.01.043, subdivision (c)(3)(i) of the County’s CZLUO limits 

SCRAs to habitat areas that are “mapped and designated as 

Environmentally Sensitive Habitats (ESHA) in the Local Coastal 

Plan.” Because there is no map in the Local Coastal Plan that 

designates the project site as an SRA, appellant contends the 

permit was not appealable. We disagree. 

First, the county’s CZLUO is intended to, and must be 

interpreted consistently with the Coastal Act. (McAllister v. 

California Coastal Com. (2008) 169 Cal.App.4th 912, 930-932 

[LCP presumed to be consistent with the Coastal Act and 

interpreted to incorporate its ESHA protections]; County Code, 

§ 23.01.043, subd. (c) [projects are appealable “As set forth in the 
10

Public Resources Code Section 30603(a), and this title . . . .”].) 

Section 30603 does not limit the Commission’s appellate 

jurisdiction to projects located in mapped ESHA, but extends it to 

all projects located in an SCRA. 

Second, Figure 6-3 in the Estero Area Plan is a map that 

identifies the Los Osos Dune Sands habitat as an SCRA and 

appellant’s proposed project is located within that area. The fact 

that maps included in other portions of the County’s LCP do not 

also identify the dune sands habitat as an SCRA is not relevant. 

The EAP states that, “All other county plans, policies and 

programs that involve the Estero Planning Area and are subject 

to the [County’s Local Coastal Program] are to be consistent with 

and implement this plan.” 

Appellant next contends the project is not appealable to the 

Commission because the SCRA designation applies only to dune 

sands located outside the Los Osos urban reserve line. Because 

the project is located inside the urban reserve line, appellant

contends the Commission had no jurisdiction to review it. 

We are not persuaded. The EAP describes the entire Los 

Osos Dune Sands habitat as having “soil characteristics that 

support globally rare habitat in a unique composition” of 

biological communities. These communities “support a diversity 

of native plant species and a number of rare, endangered or 

threatened species of plants and animals” some of which “are 

found nowhere else in the world.” Nothing in the EAP indicates

that these “globally rare” and “unique” features are limited to one 

side or another of the Los Osos urban reserve line. Instead, the 

description of the dune sands meets the definition of an SCRA 

under both the County CZLUO and the Coastal Act without 
11

regard to the urban reserve line.

2 Because the project is located 

in an SCRA, the Commission had jurisdiction over the appeal 

from the development permit.

Having concluded that the Commission properly exercised 

appellate jurisdiction based on the project’s location in an SCRA, 

it is not necessary for us to consider whether, as the Commission 

contends in its cross-appeal, it also has appellate jurisdiction 

because the project does not fall within the principal permitted 

use for its zoning category. (§ 30603, subd. (a)(4).) 

Abuse of Discretion

Appellant contends the Commission abused its discretion 

when it denied the development permit because the project is 

consistent with the LCP’s water and wastewater requirements 

and is consistent with the policies for development in an ESHA. 

The Commission found the project was inconsistent with the LCP 

and lacked sufficient water and wastewater service. We conclude 

the Commission did not abuse its discretion because its factual 

findings relating to water and wastewater access are supported 

by substantial evidence.

The County’s CZLUO provides, “A land use permit for new 

development that requires water or disposal of sewage shall not 

be approved unless the applicable approval body determines that 

there is adequate water and sewage disposal capacity available to 

serve the proposed development . . . .” (County Code, § 

23.04.430.) That section of the CZLUO implements groundwater 

2 The EAP states that, “areas underlain by these sands 

outside of Los Osos are included” in the SRA. We do not read this 

statement to limit the SRA to dune sands located outside of Los 

Osos. Instead, we read it to define the SRA as the entire area 

underlain by dune sands, including areas outside of Los Osos.
12

policies included in the LCP that require protection of the longterm integrity of the groundwater basin. 

Appellant’s proposed project is located in an area served by 

the Los Osos Wastewater Project (LOWWP). The coastal 

development permit that allowed for construction of the LOWWP 

includes Special Condition 6 which prohibits the extension of 

wastewater service “to undeveloped properties within the service 

area . . . unless and until the Estero Area Plan is amended to 

identify appropriate and sustainable buildout limits, and any 

appropriate mechanisms to stay within such limits, based on 

conclusive evidence indicating that adequate water is available to 

support development of such properties without adverse impacts 

to ground and surface waters, including wetlands and all related 

habitats.” In addition to this prohibition against new sewer 

hookups, the Regional Water Quality Control Board prohibits 

new septic installations.

The Commission denied appellant’s coastal development 

permit, in part, because it concluded the project site did not have 

access to adequate water and wastewater service. It contends the 

project cannot be connected to water and wastewater service 

without violating County Code section 23.04.430 and Special 

Condition 6. Appellant contends the project site has access to 

water and wastewater because the project site is already 

developed with water meters, sewer mains and laterals. These 

improvements were constructed in connection with Phase I of the 

project. Since 2007, appellants have used water supplied through 

the water meters for landscaping purposes.

Like the Commission, we are persuaded that the project 

site remains “undeveloped” for purposes of Special Condition No. 

6 and the CZLUO, despite the installation of water meters and 
13

other infrastructure. The coastal development permit for Phase I 

expressly required appellant to obtain a separate coastal 

development permit for the houses at issue here. The County 

approved permit for Phase I only after placing a scenic easement 

on the lots at issue here, to insure they would not be developed 

until after the community sewer was completed. The 

Commission’s coastal development permit for Phase I also 

mandated that “future development of [the lots at issue here] is 

subject to a separate coastal development permit.” Even 

assuming appellant was authorized to install water meters,

sewer mains and laterals for these lots, appellant never had 

authorization to connect newly constructed houses to water 

meters or to the community sewer. 

The County is prohibited from extending wastewater 

service to these lots until it satisfies the terms of Special 

Condition No. 6. Because that has not occurred, these lots lack 

access to water and wastewater services. Consequently, their 

development would violate section 23.04.430 of the County 

CZLUO and the LCP’s groundwater policies. This constitutes 

substantial evidence supporting the Commission’s decision to 

deny a coastal development permit for the project. 

Conclusion

The order denying the petition for writ of mandate is 

affirmed. Respondent shall recover its costs on appeal.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P. J. CODY, J.
Rita Federman, Judge

Superior Court County of San Luis Obispo

______________________________

FisherBroyles and Paul J. Beard II, for Plaintiff and 

Appellant.

Rita L. Neal, County Counsel, Jon Ansolabehere, Assistant 

County Counsel, for amicus curiae on behalf of Plaintiff.

Rob Bonta, Attorney General, Daniel A. Olivas, Senior 

Assistant Attorney General, Christina Bull Arndt, Supervising 

Deputy Attorney General, Mitchell E. Rishe, Deputy Attorney 

General, for Defendant and Respondent.