Andrew Grow Family Trust v. City of Pismo Beach, et al.

Andrew Grow Family Trust v. City of Pismo Beach, et al., 23CV-0544

Hearing: Petition for Administrative Writ

Date: July 16, 2026

The Andrew Grow Family Trust is the owner of 2.5 acres of real property located at 3990 Shell Beach Road in Shell Beach, California (the Property). The Property is located in “the Open Space-Natural Resources Protection Zone (OS-1, 1983 Coastal Zoning Code).” (AR 526.) The purpose of the OS-1 Zone is “to protect the city’s natural resources as identified in the general plan/local coastal program land use plan though the use of open space.” (RJN, Ex. A [Zoning Code, § 17.051.010].)

Policy LU-A-8 of the City’s General Plan provides “The area between Shell Beach Road and the 101 Freeway shall remain in permanent open space ... Any development that may be approved on-site shall be required to maintain the open space character.” (RJN, Ex. B.) Policy LU-A-8 then limits the amount of site area that may be developed with improvements to 5,000 square feet or 60% of the gross site area, whichever is less. (RJN, Ex. B.)

Property owners within the OS-1 Zone may apply for a Conditional Use Permit to construct one residential unit on the property. (RJN, Ex. A [Zoning Code, § 17.051.030(A)].) Minimum development standards for any such residence, include:

1. No more than sixty percent, or five thousand s.f. of the lot or parcel, whichever is the least, shall be utilized for residential uses including buildings, parking, landscaping, gardening, outdoor living and other uses. [The Lot Coverage Requirement] ...

4. A permanent open space easement shall be recorded over any portion of the development not occupied by a structure or driveway or the residential living area of B(1) above. [the Easement Requirement]

(RJN, Ex. 1 [Zoning Code, § 17.051.030(B)].)

In 2003, Grow’s predecessor, Michael Spangler, applied for a Coastal Development Permit (CDP), Conditional Use Permit, and Variance, which allowed for development of a 6,384- square-foot single family residence and related improvements on the Property. (AR 527-528, 532-546.) Approval of Spangler’s CDP included a condition that he “record a permanent open space easement over any portion of the development not occupied by a structure or driveway or other developed area.” (AR 542.)

After Spangler failed to comply with the easement condition, the City began administrative enforcement proceedings. The City ultimately revoked Spangler’s temporary certificate of occupancy and disconnected all utilities to the Property. Litigation ensued, which was terminated in 2016 via a Mediated Release and Settlement Agreement. (AR 279-295.) Under the Settlement Agreement, Spangler agreed to record an open space easement in exchange for the City paying him $100,000 and issuing a final certificate of occupancy for his residence. (AR 279-280.)

Attached to the Settlement Agreement as exhibit A was an Open Space Easement Agreement. (AR 289-290.) The Easement Agreement states the easement covers “any portion of said property not occupied by a structure or driveway or other developed area, as shown on the site plan attached as Exhibit A. This easement cannot be altered without approval of the City of Pismo Beach.” (AR 290.) The site plan attached to the Easement Agreement outlines the boundary of the “developed area,” which is approximately 27,000 square feet. (AR 292, 528.)

In 2022, Grow applied for a CDP and Variance to develop a rainwater collection and retention system (the Project). On April 25, 2023, the Planning Commission denied the Project. (AR 395- 397.) Grow appealed that decision to the City Council. (AR 566-567.) The appeal asserted the Project was fully consistent with the General Plan/Local Coastal Program and 1983 Zoning Code, as well as the Settlement Agreement. (AR 567.)

The Staff Report prepared for the appeal recognized the existing development on the Property already exceeds the maximum allowable lot coverage due to the Variance issued to Spangler and the Settlement Agreement. (AR 528.) Staff stated:

As a result, although such envelope represents areas of the site where allowable development could occur if the lot was bare land, no additional development may occur as development on the site already significantly exceeds the OS-1 development standards. It is therefore expected that over time, any re-development of the property will eventually be brought back into compliance with the original [Spangler] CDP, CUP, and Variance approval.

(AR 528.)

Grow responded, “The Project does not ‘add’ to the Property’s existing lot coverage already permitted by prior actions of the City, including the 2016 Court-approved settlement. The Project is proposed to be located in an area that is already fully developed.” (AR 424.)

After voicing concerns that the Project was inconsistent with the City’s General Plan and Local Coastal Program, the City Council denied the appeal. (AR 624-626.) The resolution denying the appeal included four findings:

1. The Project “exceed[s] the development limitations established” by Policy LU-A-8. 1

2. The Project is inconsistent with the 1983 Zoning Code “because it would add additional development beyond what is allowed by” the Lot Coverage Requirement.

3. The Project is inconsistent with the character of the immediate neighborhood because it results in development that would exceed “the maximum allowable development area” under the City’s General Plan/Local Coastal Program and 1983 Zoning Code.

4. Grow’s predecessor had already received a Variance and CDP and constructed a residential unit on the property which “exceeds the development standards” identified in the Lot Coverage Requirement.

(AR 592-593.)

Grow responded to the City Council’s denial by filing the present action seeking a writ of mandate under Code of Civil Procedure section 1094.5 and declaratory relief under Code of Civil Procedure section 1060.

After an initial hearing on the writ in September 2024, the Court determined interpretation of the Settlement Agreement was the fundamental dispute between the parties, and therefore the declaratory relief claim should be determined before the request for a writ of mandate. (09/19/24 Ruling, p. 6.)

In response, the parties filed cross-motions for judgment on the pleadings as to the second cause of action. The Court denied the City’s motion and granted Grow’s motion. The Court found, “Grow is entitled to a declaration that (1) the Lot Coverage Requirement does not apply to projects set within the ‘developed area’ delineated in the Easement Agreement, ....” (03/21/25 Ruling, pp. 8-9.) The Court also clarified “that the Settlement Agreement does not address any zoning code section or regulation other than the Lot Coverage Requirement (Zoning Code § 17.051.030(B)(1) and the Easement Requirement (Zoning Code § 7.051.030(B)(4)).” (03/21/25 Ruling, p. 9, fn. 3.)

The Court then ordered letter briefs identifying any issues which remained pending after the Court’s ruling on the declaratory relief claim. The City’s brief argued three issues remained unresolved. The Court addresses those issues below and grants Grow’s request for a writ of mandate directing the City to set aside its June 20, 2023 denial of the CDP and Variance. The Court, however, denies Grow’s request for a writ directing the City to grant a permit for the Project.

1 The development limitations in Policy LU-A-8 are the same as those set forth in the Lot Coverage Requirement (i.e., 5,000 square feet or 60% of the gross area site, whichever is less). 3

I. STANDARD OF REVIEW

Code of Civil Procedure section 1094.5, subdivision (b) sets forth the standard of review in administrative mandamus proceedings. The section specifies three grounds for review: (1) whether the agency proceeded without or in excess of its jurisdiction; (2) whether there was a fair trial; and (3) whether there was a prejudicial abuse of discretion. “Abuse of discretion is established if the respondent 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).)

The relevant standard here is whether the City proceeded in the manner required by law.

II. DISCUSSION

A. Denial of the Project Based on the Failure to Maintain the Open Space Character

The City argues the Lot Coverage Requirement was not the only reason it denied Grow’s CDP. The City argues it also found the Project was inconsistent with the Open Space Policy LU-A-8. (AR 592 [City Council Resolution, Finding #1].) In particular, the requirement that “Any development may be approved on-site shall be required to maintain the open space character.” (RJN, Ex. B.) The City argues this general policy is discrete from the lot coverage issue.

The City’s argument ignores its express finding that “The proposed project is inconsistent with the General Plan and Local Coastal Program (GP/LCP) because the proposed development would exceed the development limitations established by the General Plan/Local Coastal Program (GP/LCP) Policy LU-A-8.” (AR 592, italics added.) The “development limitation” in Policy LU-A-8 is the same as that in the Lot Coverage Requirement, which the Court has determined does not apply to the Property.

The only evidence cited by the City is general statements by council members referencing conflicts and inconsistency with the General Plan and Local Coastal Program. (AR 624-625.) The only specific comment was made by Councilmember Newton who stated, “I could live with middle ground if they were completely out of view and still have the appearance of open space ....” (AR 624 [referring to the rainwater collection tanks]; see also AR 193 [Project description].) The City Council, however, made no findings on that issue.

In its supplemental opposition, the City argues, for the first time, “these tanks are not coverage as the definition of lot coverage does not include tanks and, more importantly, the concept of lot coverage does not apply to the OS-1 zone pursuant to Zoning Code section 17.102.080.” 2 (Supp. Opp., p. 5:13-15.) The City does not point to anywhere in the administrative record where the City previously raised this issue in response to the Project.

2 The City did not provide a copy of that 1983 Zoning Code section nor a full analysis of how it applies to the current dispute. 4

The City goes on to argue, “The reason lot coverage does not apply to this zone is because both the General Plan and zoning code include policies that specifically limit the amount of site areas that can be developed.” (Supp. Opp., p. 5:15-17.)

To the extent that the City is relying on the 5,000 square feet or 60% of the gross site area standard in Policy LU-A-8, that is the same limitation set forth in the Lot Coverage Requirement. Reliance on the development limitations in Policy LU-A-8 fails on the same grounds. The Court therefore amends its declaratory relief ruling to find the development limitations in Policy LU-A- 8 do not apply to projects set within the “developed area” delineated in the Easement Agreement. (See Cmp., ¶ 44.a. [seeking a declaration regarding “the lot-coverage limitation in the General Plan and Zoning Code ....”].)

The City’s defense that the first cause of action fails because the Project fails to comply with Policy LU-A-8 is unavailing.

B. Waiver of Arguments for Failing to Fairly Summarize the Evidence

The City argues Grow “failed to present a full and fair recitation of the facts, including facts and substantial evidence supporting the City’s decision,” and as such waived his arguments. (Opp., p. 14:10-22, p. 15:1-4.) The argument is based on the principle that “ ‘[a] party who challenges the sufficiency of the evidence to support a particular finding must summarize the evidence on that point, favorable and unfavorable, and show how and why it is insufficient.’ [Citation.]” (Schmidlian v. City of Palo Alto (2007) 157 Cal.App.4th 728, 738, italics removed.)

Grow responds that the relevant standard of review is whether the City proceeded in the manner required by law. In particular, whether the City correctly applied the development standards set forth in the Lot Coverage Requirement and Policy LU-A-8, in light of the Settlement Agreement. Grow argues that is a legal question triggering the Court’s independent review. The Court agrees.

As stated in the September 2024 ruling, the applicable standard of review depended on which party’s interpretation of the Settlement Agreement controlled. (09/19/24 Ruling, pp. 5-6.) Having ruled in Grow’s favor on that issue via the declaratory relief cause of action, the relevant standard of review for the writ cause of action is whether the City proceeded in the manner required by law when it applied development limitations to the Property.

The Court finds the City’s waiver defense is misplaced because it applies the wrong standard of review.

C. Failure to Appeal the Planning Commission’s Denial of the Variance

The City argues that Grow applied for both a CDP and a Variance, and while the Planning Commission denied both, Grow only appealed denial of the CDP. The City argues that the Planning Commission’s denial of the Variance is now final and the Project cannot be approved without it.

Grow responds that a Variance is not required, and that he asserted as much during the administrative process. (AR 96, 201; see also 529 [staff report to City Council (“Appellant contends ... that the proposed project should be approved without a Variance”)].) Grow states he only applied for a Variance because the City required it. (AR 12, 530 [City Council Agenda Report (“Approval of a Variance would be necessary to allow new development on the project site to further exceed the limitations established by the GP/LCP and 1983 Zoning Code”)].)

The City required a Variance on the ground the Project would exceed the 5,000 square foot limitation set forth in the Lot Coverage Requirement. (AR 14 [Planning Commission Agenda Report (“variance to address the issued associated with further exceeding the 5,000 square foot limitation”)], 70 [02/22/22 Planning Commission Trans., 7:12-15 (“a variance from the standard in the Zoning Code is required to allow the applicant ... to develop beyond the 5000 square feet development limitation”)], 572 [same].)

A Variance is required when a proposed project varies from the Zoning Code’s “structural development standards.” (RJN, Ex. 4 [Zoning Code, § 17.121.030].) As recognized by city staff, “If it weren’t for the 5000 square foot limitation that’s placed on open space lots, [the Project] would meet all other design requirements and standards and provisions of the Zoning Code.” (AR 89.)

In light of the fact the City required a variance due to the Lot Coverage Requirement, which the Court found “does not apply to projects set within the ‘developed area’ delineated in the Easement Agreement” (03/21/25 Ruling, pp. 8-9), the Court agrees with Grow that issuance of a Variance is immaterial.

Grow further argues the failure to appeal the Planning Commission’s denial of the Variance is moot because the City Council nonetheless adjudicated the issue. (AR 593 [City Council Resolution, Finding #4].) The Court again agrees.

For these reasons, the Court is unpersuaded by the City’s argument that the first cause of action fails because Grow did not appeal the Variance at the administrative level.

D. The Scope of Writ Relief

Code of Civil Procedure section 1094.5, subsection (f) provides, in relevant part, “Where the judgment commands that the order or decision be set aside, it may order the reconsideration of the case in light of the court’s opinion and judgment and may order respondent to take such further action as is specially enjoined upon it by law, but the judgment shall not limit or control in any way the discretion legally vested in the respondent.”

The first cause of action seeks a writ which not only directs the City to set aside its June 20, 2023 denial of the Project but also directs the City to issue a CDP for the Project. (Cmp., p. 12, ¶ 1.) The Court is unpersuaded by the cases cited by Grow in support. (Horwitz v. City of Los Angeles (2004) 124 Cal.App.4th 1344, 1355 [upholding trial court’s writ revoking permits based on

finding “there was no discretion involved in the application of the formula to the measurements at issue in this case”]; Ross General Hospital, Inc. v. Lackner (1978) 83 Cal.App.3d 346, 354 [concluding hospital facility regulation was invalid as applied and directing department to issue certificate of exemption to hospital; when administrative record “requires as a matter of law that a particular determination be made, the court may order that the agency carry out its legal obligation”]; Carlton v. Dept. of Motor Vehicles (1988) 203 Cal.App.3d 1428, 1434-1435 [trial court did not err in directing DMV to set aside suspension based on a singular piece of hearsay evidence; the trial court’s ruling did not prevent the DMV from initiating further proceedings based on other competent and sufficient evidence].)

Unlike those cases, Grow has not shown the City has no continued discretion in whether to grant or deny his requested entitlements. The Court therefore denies the request to issue a writ directing the City to issue a CDP for the Project.

ORDER (PROPOSED)

The Court grants Grow’s request for a writ of administrative mandamus directing the City to set aside its June 20, 2023 decision denying the Project. The Court denies the request to direct the City to issue a CDP for the Project.

The Court grants the City’s requests for judicial notice. (Evid. Code, § 452, subd. (b).) The Court grants Grow’s requests for judicial notice of exhibits 1, 2, and 4. (Evid. Code, § 452, subds. (b), (c).) The Court sustains the City’s objection to Grow’s request for judicial notice of exhibit 3. (LaChance v. Valverde (2012) 207 Cal.App.4th 779, 783.)

7