Friends of the Carpinteria Salt Marsh v. Cal. Coastal Commission

After applying to the County of Santa Barbara (County) for entitlements to develop the Property, a draft mitigated negative declaration was prepared and circulated. (AR 572.) Members and representatives of petitioner Friends of the Carpinteria Salt Marsh (petitioner) submitted extensive written comments. (AR 683-711.) In April 2023, Sanddew pursued a consolidated permit pursuant to Public Resources Code section 30601.3 with the Commission as the decisionmaker. (AR 22, 902-903.) (Note: Section 30601.3 is within the Coastal Act of 1976 (Coastal Act, Pub.

Resources Code, Sec. 30000 et seq.)) On May 9, 2025, the Commission approved the CDP for the Project, as modified and with conditions. Among other things, the Commission found "that the proposed development, which would place a non-resource dependent use within dune [environmentally sensitive habitat area (ESHA)] and not provide sufficient buffers to either dune or wetland ESHA, would significantly degrade the surrounding ESHA and would not be compatible with the continuance of those habitat areas.

Therefore, the proposed project is inconsistent with Coastal Act Section 30240 and must be denied." (AR 31.) Notwithstanding this and similar findings, the Commission determined that "a Court is more likely to conclude that denial of the proposed project would constitute a take than to conclude otherwise. Thus, the Commission determines that a denial could result in a taking, and that pursuant to Section 30100 of the Coastal Act it should approve a modified project to avoid this outcome." (AR 51-52.)

The Commission approved the CDP for a modified Project which avoids a taking and limits associated coastal resource impacts as much as possible. (AR 59.) Based on the same findings, the Commission determined: "[T]he Commission finds that only if modified and conditioned herein will the proposed project be consistent with the policies of the Coastal Act. As such, there are no feasible alternatives or feasible mitigation measures available, beyond those required, which would substantially lessen any significant adverse impact that the activity may have on the environment.

Therefore, the Commission finds that the proposed project, as modified and conditioned to mitigate the identified impacts, can be found to be consistent with the requirements of the Coastal Act to conform to [the California Environmental Quality Act (CEQA, Pub. Resources Code, Sec. 21000 et seq.)]. On June 9, 2025, petitioner Friends of the Carpinteria Salt Marsh filed this petition for writ of mandate to challenge the May 2025 approval of the Project. The petition is opposed by the Commission and by Sanddew.

In reaching the conclusions set forth herein, the Court has reviewed all of the evidence and arguments of the parties, whether or not expressly discussed herein. The Court notes that in reviewing a legal challenge to the determinations of the Commission, the Court does not review the wisdom of otherwise legal land use choices. Analysis (1) Evidentiary and Procedural Matters Concurrently with its opening brief, petitioner requests that the Court take judicial notice of: (Petitioner's Request for Judicial Notice, exhibit A) Figure 26 "Restoration and Enhancement Program," an excerpt from the Management Plan for the Carpinteria Salt Marsh Reserve, dated April 30, 1997; (exhibit B) the CNDDB Online Field Survey Form Report submitted to the California Department of Fish and Wildlife on December 22, 2025, reporting presence of a burrowing owl on the Project site; (exhibit C) Accela Case History for APN 004-098-011; (exhibit D) an email message chain involving Mark Massara and County officials regarding the Mitigated Negative Declaration for 501 Sand Point Road, dated September 28, 2022 and earlier.

Sanddew objects to these requests for judicial notice as improper extra-record evidence. In reply, petitioner asserts that these matters are properly included in administrative record but were not. "In general, the rules on judicial notice that apply in civil cases [citation] apply in administrative mandamus proceedings. [Citations.] However, with narrow exceptions inapplicable here, our inquiry under Code of Civil Procedure section 1094.5 is limited to the administrative record made before the agency." (City of Hesperia v.

Lake Arrowhead Community Services Dist. (2019) 37 Cal.App.5th 734, 766.) "Where the Court finds that there is relevant evidence that, in the exercise of reasonable diligence, could not

have been produced or that was improperly excluded at the hearing before respondent, it may enter judgment as provided in subdivision (f) remanding the case to be reconsidered in the light of that evidence; or, in cases in which the Court is authorized by law to exercise its independent judgment on the evidence, the Court may admit the evidence at the hearing on the writ without remanding the case." (Code Civ. Proc., Sec. 1094.5, subd. (e).) "[A]lthough we agree that there is such an exception in traditional mandamus proceedings challenging quasi-legislative administrative decisions, this exception is to be very narrowly construed.

Extra-record evidence is admissible under this exception only in those rare instances in which (1) the evidence in question existed before the agency made its decision, and (2) it was not possible in the exercise of reasonable diligence to present this evidence to the agency before the decision was made so that it could be considered and included in the administrative record." (Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 578 (Western States).) With respect to exhibit B, the report did not exist before the Commission made its decision on May 9, 2025.

The request is denied as to exhibit B on that ground. With respect to the remaining exhibits, the Court does not find that these documents could not have been, with the exercise of reasonable diligence, presented to the Commission for consideration. The requests are denied as to exhibits A, C, and D on that ground. In reply, petitioner further requests that Court take judicial notice of: (Petitioner's Reply Request for Judicial Notice [PRRJN], exhibit E) a letter the California Department of Fish and Wildlife (CDFW) submitted to the County of Santa Barbara in connection with the 501 Sand Point Road Project, dated July 19, 2021; (exhibit F) drone images taken by Harry Rabin of On the Wave Projections on November 7, 2025; and (exhibit G) a Public Records Act request dated June 30, 2025 from Marc Chytilo to the California Coastal Commission.

With respect to exhibit E, this letter was cited and discussed indirectly in the administrative record (AR 1222) and thus was included as part of the documentation considered by the Commission in reaching its decision. The document would appropriately have been a part of the administrative record. The Court will take judicial notice of exhibit E. With respect to exhibits F and G, the documents did not exist before the Commission made its decision on May 9, 2025. The request is denied as to exhibits F and G on that ground.

With its opening brief, petitioner includes the declaration of attorney Chytilo. Sanddew objects to consideration of the declaration as improper extra-record evidence. Insofar as the declaration includes matter not included in the administrative record that petitioner asserts were improperly excluded from the administrative record, the declaration provides extra-record evidence relevant to that aspect of petitioner's arguments. The objection to the entirety of the Chytilo declaration is overruled.

The Court will consider the declaration and exhibits only to the extent appropriate under the standards for a petition for an administrative writ. The Court notes that the inclusion of these documents for the Court's consideration could have been more appropriately addressed by motion to augment the administrative record, as was done by stipulation for other documents. With respect to other procedural matters, Sanddew filed a surreply to petitioner's reply, which surreply objects to portions of petitioner's reply as presenting new arguments.

The Court's scheduling order, entered by stipulation and order on February 19, 2026, does not authorize the filing of a surreply. Petitioner objects to the surreply. The Court will not consider the surreply or arguments made in the objection to the surreply. (2) Coastal Act Challenges "In reviewing an agency's decision under Code of Civil Procedure section 1094.5, the trial Court determines whether (1) the agency proceeded without, or in excess of, jurisdiction; (2) there was a fair hearing; and (3) the agency abused its discretion. [Citation.] 'An "[a]buse of discretion is established if the [agency failed to proceed] in the manner required by law, [its] order or decision is not supported by the findings, or its findings are not supported by substantial evidence." ' [Citations.]" (McAllister v.

California Coastal Com. (2008) 169 Cal.App.4th 912, 921 (McAllister).) "The trial Court presumes that the agency's decision is supported by substantial evidence, and the petitioner bears the burden of demonstrating the contrary. [Citations.] In reviewing the agency's decision, the trial Court

examines the whole record and considers all relevant evidence, including evidence that detracts from the decision. [Citation.] 'Although this task involves some weighing to fairly estimate the worth of the evidence, that limited weighing does not constitute independent review where the Court substitutes its own findings and inferences for that of the Commission. Rather, it is for the [agency] to weigh the preponderance of conflicting evidence, as [the Court] may reverse its decision only if, based on the evidence before it, a reasonable person could not have reached the conclusion reached by it.' [Citations.]

On the other hand, the trial Court exercises independent judgment on pure questions of law, including the interpretation of statutes and judicial precedent." (McAllister, supra, 169 Cal.App.4th at pp. 921-922.) (A) Background Policies "The Coastal Act 'was enacted by the Legislature as a comprehensive scheme to govern land use planning for the entire coastal zone of California. The Legislature found that "the California coastal zone is a distinct and valuable natural resource of vital and enduring interest to all the people"; that "the permanent protection of the state's natural and scenic resources is a paramount concern"; that "it is necessary to protect the ecological balance of the coastal zone" and that "existing developed uses, and future developments that are carefully planned and developed consistent with the policies of this division, are essential to the economic and social well-being of the people of this state...." [Citation.]' [Citation.]

The Coastal Act is to be 'liberally construed to accomplish its purposes and objectives.' [Citation.] Under it, with exceptions not applicable here, any person wishing to perform or undertake any development in the coastal zone must obtain a coastal development permit 'in addition to obtaining any other permit required by law from any local government or from any state, regional, or local agency....' [Citation.]" (Pacific Palisades Bowl Mobile Estates, LLC v. City of Los Angeles (2012) 55 Cal.4th 783, 793-794.) "The Coastal Act reflects ' " 'strong rules of public policy adopted for the public's benefit' " that implicate matters of vital interest.' [Citation.]

The Act provides heightened protection for areas that are designated 'environmentally sensitive habitat areas' (habitat areas) and establishes strict preferences and priorities that guide development in them. [Fn.; citations.] Specifically, section 30240, provides: '(a) Environmentally sensitive habitat areas shall be protected against any significant disruption of habitat values, and only uses dependent on those resources shall be allowed within those areas. [P.] (b) Development in areas adjacent to environmentally sensitive habitat areas and parks and recreation areas shall be sited and designed to prevent impacts which would significantly degrade those areas, and shall be compatible with the continuance of those habitat and recreation areas.' " (McAllister, supra, 169 Cal.App.4th at p. 923.)

The Commission determined that the Project is inconsistent with section 30240 and, but for an exception, the CDP must be denied. (AR 31.) There is no dispute now presented as to the correctness of this finding. (B) Takings Exception "The Legislature hereby finds and declares that this division is not intended, and shall not be construed as authorizing the commission, port governing body, or local government acting pursuant to this division to exercise their power to grant or deny a permit in a manner which will take or damage private property for public use, without the payment of just compensation therefor.

This section is not intended to increase or decrease the rights of any owner of property under the Constitution of the State of California or the United States." (Pub. Resources Code, Sec. 30010.) "Section 30010 'establish[es] a narrow exception to strict compliance with restrictions on uses in habitat areas based on constitutional considerations.' [Citation.]" (Felkay v. City of Santa Barbara (2021) 62 Cal.App.5th 30, 38 (Felkay).) "Pursuant to section 30010, where a restriction would require denial of a permit that would deprive the owner of the economic benefit or productive use of the property, the local agency 'has two options: deny the permit and pay just compensation; or grant the permit with conditions that mitigate the impacts that limitations were designed to prevent.' [Citation.]

The government entity may ' "limit application of the resource protection policies to the extent necessary to allow a property owner a constitutionally reasonable economic use of his or her property." ' [Citation.]" (Id. at pp. 38-39.) (i) Federal Cases To give context to the Commission's determination, and petitioner's challenge to that determination, it is useful to discuss the cases of Lucas v. South Carolina Coastal Council (1992) 505 U.S. 1003 [112 S.Ct. 2886, 120

L.Ed.2d 798] (Lucas) and Penn Cent. Transp. Co. v. City of New York (1978) 438 U.S. 104 [98 S.Ct. 2646, 57 L.Ed.2d 631] (Penn Central), discussed by the Commission and the parties. In Lucas, the Plaintiff began extensive residential development on a barrier island located in South Carolina. (Lucas, supra, 505 U.S. at p. 1008.) In 1986, the Plaintiff purchased two lots at a time when the Plaintiff was not legally obligated to obtain a permit in advance of any development activity. (Ibid.) The Plaintiff intended to erect single family residences on those parcels as existed on neighboring parcels. (Ibid.)

In 1988, the South Carolina Legislature enacted the Beachfront Management Act, which had the direct effect of barring the Plaintiff from erecting any permanent habitable structures on those parcels. (Id. at p. 1007.) The Plaintiff commenced a lawsuit in state Court contending that the Beachfront Management Act's construction bar effected a taking of his property without just compensation. (Lucas, supra, 505 U.S. at p. 1009.) The trial Court agreed and ordered payment of just compensation. (Ibid.)

The South Carolina Supreme Court reversed. (Ibid.) That Court found that the regulation was designed to prevent serious harm to the public and no compensation was owing. (Id. at p. 1010.) On review in the United States Supreme Court, the Lucas Court noted two categories of regulatory action as compensable without case-specific inquiry into the public interest advanced in support of the restraint: "[R]egulations that compel the property owner to suffer a physical 'invasion' of his property"; and "where regulation denies all economically beneficial or productive use of land." (Lucas, supra, 505 U.S. at p. 1015.)

The Lucas Court stated: "[A]ffirmatively supporting a compensation requirement, is the fact that regulations that leave the owner of land without economically beneficial or productive options for its use--typically, as here, by requiring land to be left substantially in its natural state--carry with them a heightened risk that private property is being pressed into some form of public service under the guise of mitigating serious public harm. [Citations] As Justice Brennan explained: 'From the government's point of view, the benefits flowing to the public from preservation of open space through regulation may be equally great as from creating a wildlife refuge through formal condemnation or increasing electricity production through a dam project that floods private property.' [Citation.]

The many statutes on the books, both state and federal, that provide for the use of eminent domain to impose servitudes on private scenic lands preventing developmental uses, or to acquire such lands altogether, suggest the practical equivalence in this setting of negative regulation and appropriation." (Lucas, supra, 505 U.S. at pp. 1018-1019.) "Where the State seeks to sustain regulation that deprives land of all economically beneficial use, we think it may resist compensation only if the logically antecedent inquiry into the nature of the owner's estate shows that the proscribed use interests were not part of his title to begin with." (Lucas, supra, 505 U.S. at p. 1027.) "We believe similar treatment must be accorded confiscatory regulations, i.e., regulations that prohibit all economically beneficial use of land: Any limitation so severe cannot be newly legislated or decreed (without compensation), but must inhere in the title itself, in the restrictions that background principles of the State's law of property and nuisance already place upon land ownership.

A law or decree with such an effect must, in other words, do no more than duplicate the result that could have been achieved in the Courts--by adjacent landowners (or other uniquely affected persons) under the State's law of private nuisance, or by the State under its complementary power to abate nuisances that affect the public generally, or otherwise." (Lucas, supra, 505 U.S. 1003, 1029.) "The 'total taking' inquiry we require today will ordinarily entail (as the application of state nuisance law ordinarily entails) analysis of, among other things, the degree of harm to public lands and resources, or adjacent private property, posed by the claimant's proposed activities, [citation], the social value of the claimant's activities and their suitability to the locality in question, [citation], and the relative ease with which the alleged harm can be avoided through measures taken by the claimant and the government (or adjacent private landowners) alike, [citation].

The fact that a particular use has long been engaged in by similarly situated owners ordinarily imports a lack of any common-law prohibition (though changed circumstances or new knowledge may make what was previously permissible no longer so, [citation] . So also does the fact that other landowners, similarly situated, are permitted to continue the use denied to the claimant." (Lucas, supra, 505 U.S. at pp. 1030-1031.) "Outside these two relatively narrow categories (and the special context of land-use exactions discussed below

...), regulatory takings challenges are governed by the standards set forth in [Penn Central]." (Lingle v. Chevron U.S.A. Inc. (2005) 544 U.S. 528, 538 [125 S.Ct. 2074, 161 L.Ed.2d 876] (Lingle).) In Penn Central, the issue was the application of New York City's Landmarks Preservation Law to Grand Central Terminal (Terminal). (Penn Central, supra, 438 U.S. at p. 115.) The Terminal, which is owned by the Penn Central Transportation Co. and its affiliates, is one of New York City's most famous buildings. (Ibid.)

The Landmarks Preservation Law was enacted in 1965. (Id. at pp. 108-109.) The Terminal was designated a landmark under the Landmarks Preservation Law in 1967. (Id. at pp. 115-116.) In 1968, a plan was commenced to construct a 55-story office building atop the Terminal. (Id. at pp. 116-117.) The plans were rejected by the Landmarks Commission. (Id. at pp. 117-118.) The Plaintiff then filed a lawsuit contending that the application of the Landmarks Preservation Law to the Terminal constituted a taking without just compensation. (Id. at p. 119.)

The trial Court granted injunctive and declaratory relief; the appellate Court reversed. (Ibid.) The New York Court of Appeals affirmed the reversal. (Ibid.) On review in the United States Supreme Court, the Penn Central Court affirmed. (Penn Central, supra, 438 U.S. at p. 122.) In determining that there was no taking under the facts of Penn Central, the Court noted several factor that have particular significance: "The economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations are, of course, relevant considerations. [Citation.]

So, too, is the character of the governmental action. A 'taking' may more readily be found when the interference with property can be characterized as a physical invasion by government [citation], than when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good." (Penn Central, supra, 438 U.S. at p. 124.) "[I]n instances in which a state tribunal reasonably concluded that 'the health, safety, morals, or general welfare' would be promoted by prohibiting particular contemplated uses of land, this Court has upheld land-use regulations that destroyed or adversely affected recognized real property interests. [Citation.]

Zoning laws are, of course, the classic example [citations], which have been viewed as permissible governmental action even when prohibiting the most beneficial use of the property." (Penn Central, supra, 438 U.S. at p. 125.) "Zoning laws generally do not affect existing uses of real property, but 'taking' challenges have also been held to be without merit in a wide variety of situations when the challenged governmental actions prohibited a beneficial use to which individual parcels had previously been devoted and thus caused substantial individualized harm.

Miller v. Schoene [(1928)] 276 U.S. 272 [48 S.Ct. 246, 72 L.Ed. 568], is illustrative. In that case, a state entomologist, acting pursuant to a state statute, ordered the claimants to cut down a large number of ornamental red cedar trees because they produced cedar rust fatal to apple trees cultivated nearby. Although the statute provided for recovery of any expense incurred in removing the cedars, and permitted claimants to use the felled trees, it did not provide compensation for the value of the standing trees or for the resulting decrease in market value of the properties as a whole.

A unanimous Court held that this latter omission did not render the statute invalid. The Court held that the State might properly make 'a choice between the preservation of one class of property and that of the other' and since the apple industry was important in the State involved, concluded that the State had not exceeded 'its constitutional powers by deciding upon the destruction of one class of property [without compensation] in order to save another which, in the judgment of the legislature, is of greater value to the public.' [Citation.]" (Penn Central, supra, 438 U.S. at pp. 125-126.)

More recently, the United States Supreme Court addressed these issues in Lingle, supra, 544 U.S. 528. In Lingle, the State of Hawaii enacted a statute in response to concerns about the effects of market concentration on retail gasoline prices. (Id. at p. 533.) The statute imposed certain restrictions on the ownership and leasing of service stations by oil companies, including prohibiting oil companies from converting existing lessee-dealer stations to company-operated stations and from locating new company-operated stations in close proximity to existing dealer-operated stations, and limiting the amount of rent that an oil company may charge to a percent of profits and sales. (Ibid.)

Shortly after the enactment of the statute, the Plaintiff asserted a takings claim in federal Court based on the rent cap. (Id. at pp. 533-534.) The District Court found that the statute effected a regulatory taking given its failure to substantially advance any legitimate state interest. (Id. at p. 536.) The Ninth Circuit Court of Appeals affirmed. (Ibid.)

The United States Supreme Court reversed. (Lingle, supra, 544 U.S. at p. 536.) The Lingle Court summarized: "The paradigmatic taking requiring just compensation is a direct government appropriation or physical invasion of private property." (Lingle, supra, 544 U.S. at p. 537.) Beginning with [Pennsylvania Coal Co. v. Mahon (1922) 260 U.S. 393 [43 S.Ct. 158, 67 L.Ed. 322]], however, the Court recognized that government regulation of private property may, in some instances, be so onerous that its effect is tantamount to a direct appropriation or ouster--and that such 'regulatory takings' may be compensable under the Fifth Amendment." (Ibid.) "Our precedents stake out two categories of regulatory action that generally will be deemed per se takings for Fifth Amendment purposes.

First, where government requires an owner to suffer a permanent physical invasion of her property--however minor--it must provide just compensation. [Citation.] A second categorical rule applies to regulations that completely deprive an owner of ' all economically beneficial us[e]' of her property. [(Lucas, supra, 505 U.S. at p. 1019.)] We held in Lucas that the government must pay just compensation for such 'total regulatory takings,' except to the extent that 'background principles of nuisance and property law' independently restrict the owner's intended use of the property. [(Id. at pp. 1026-1032.)]" (Lingle, supra, 544 U.S. at p. 538.) "Outside these two relatively narrow categories ..., regulatory takings challenges are governed by the standards set forth in [Penn Central, supra, 438 U.S. 104].

The Court in Penn Central acknowledged that it had hitherto been 'unable to develop any "set formula" ' for evaluating regulatory takings claims, but identified 'several factors that have particular significance.' [Citation.] Primary among those factors are '[t]he economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations.' [Citation.] In addition, the 'character of the governmental action'--for instance whether it amounts to a physical invasion or instead merely affects property interests through 'some public program adjusting the benefits and burdens of economic life to promote the common good'--may be relevant in discerning whether a taking has occurred. [Citation.]

The Penn Central factors--though each has given rise to vexing subsidiary questions--have served as the principal guidelines for resolving regulatory takings claims that do not fall within the physical takings or Lucas rules." (Lingle, supra, 544 U.S. at pp. 537-539.) The Lingle Court reaffirmed the regulatory taking theories set forth in Lucas and Penn Central. (Lingle, supra, 544 U.S. at p. 548.) The Lingle Court rejected application of a "substantially advances" test that arose from language in Agins v.

City of Tiburon (1980) 447 U.S. 255 [100 S.Ct. 2138, 65 L.Ed.2d 106] used by the lower Courts in Lingle. (Lingle, supra, 544 U.S. at pp. 545-548.) (ii) State Cases In McAllister, supra, 169 Cal.App.4th 912, applicants for a CDP sought to build a home on two parcels containing environmentally sensitive habitat. (Id. at p. 918.) In 1977, the prior owner of the parcels applied for and obtained a CDP for building a house on the two parcels, a condition of which was the consolidation of the parcels. (Id. at p. 919.)

The prior owner commenced construction without consolidating the parcels, but later abandoned the project and sold the two parcels to the applicants in 1999. (Ibid.) Monterey County granted a permit for the applicants' proposed house in 2003, which was upheld in January 2004. (Id. at p. 920.) In February 2004, a neighbor appealed the county's decision to the Commission. (Ibid.) After a de novo hearing on the permit application, the Commission granted the permit with conditions in final form in 2005. (Ibid.)

The neighbor filed a petition for writ of mandate challenging the Commission's decision, which was denied by the trial Court. (Id. at p. 921.) On appeal in McAllister, the Court addressed multiple issues. With respect to habitat, the Court construed Public Resources Code section 30240: "Thus, together, the two restrictions limit development inside habitat areas to uses that are dependent on the resources to be protected and that do not significantly disrupt habitat values. This interpretation not only reflects the plain meaning of the statutory language but also harmonizes the two parts of section 30240(a) in the only way that makes sense, protects habitat areas, promotes the goals of the Coastal Act, and complies with our mandate to construe the Coastal Act liberally to achieve its purposes and objective." (McAllister, supra, 169 Cal.App.4th at p. 929.)

The Court found that the Commission did not expressly identify a conflict between environmental policies and did not make findings required by section 30007.5. (Id. at p. 937.) The Commission in McAllister argued that it was compelled to relax the resource-dependent-use restriction and approve the project in order to avoid an unconstitutional taking. (McAllister, supra, 169 Cal.App.4th at p. 937.)

The McAllister Court stated: "We agree that these provisions[, including section 30010,] establish a narrow exception to strict compliance with restrictions on uses in habitat areas based on constitutional considerations. Thus, where a restriction would require the denial of a permit, and the denial would, in turn, deprive an owner the economic benefit or productive use of his or her land, the Commission theoretically has two options: deny the permit and pay just compensation; or grant the permit with conditions that mitigate the impacts that limitations were design to prevent.

However, because, as one commentary has observed, 'the Commission is not authorized to purchase property, it has instead determined to limit application of the resource protection policies to the extent necessary to allow a property owner a constitutionally reasonable economic use of his or her property.' [Citation.]" (Id. at p. 939.) The McAllister Court held that the record there did not support a finding that the Commission approved the project to avoid an unconstitutional taking. (McAllister, supra, 169 Cal.App.4th at p. 939.)

The Commission did not discuss the factual issues related to a determination of whether denial of a permit would deprive the property owners of the beneficial or productive use of their property. (Id. at p. 940.) " The purpose of requiring written findings is to record the grounds on which the decision of the Commission rests and thus render its legality reasonably and conveniently reviewable on appeal. [Citations.] Without appropriate written findings, the trial Court cannot properly perform its function in a proceeding for administrative mandate and determine whether the agency's decision is supported by its findings and its findings are supported by the evidence. [Citation.]

Clearly, the Commission had a duty to make express findings that it was excusing strict compliance with the development restriction to avoid a taking if that had been its reason for approving the Project." (Id. at p. 941.) Based upon this determination, the McAllister Court remanded the matter to the Commission for a new hearing to consider and make appropriate findings regarding the taking issue. (Id. at p. 942.) In Felkay, supra, 62 Cal.App.5th 30, the Plaintiff purchased an oceanside residential lot in 2006. (Id. at p. 34.)

The Plaintiff applied for a CDP from the city to build a single-family residence on the lot. (Ibid.) The city concluded that the proposed development did not conform to the LCP policy which prohibits development on a bluff face. (Id. at p. 35.) The city also concluded that the portions of the lot sought to be developed did not meet factors of safety for geologic stability. (Ibid.) City staff recommended the planning commission approve the application notwithstanding the policy inconsistency to avoid an unconstitutional taking. (Ibid.)

The planning commission, and later the city council, rejected the permit because of the policy inconsistency. (Ibid.) The Plaintiff in Felkay then filed a consolidated petition for writ of mandamus and complaint for inverse condemnation. (Felkay, supra, 62 Cal.App.5th at p. 36.) The trial Court denied the petition for writ of mandate, concluding the Plaintiff had not presented evidence supporting the factors noted in McAllister " ' "that the property was purchased with the expectation of residential use, that such expectation was reasonable, that the investment was substantial, and that the proposed development was commensurate with the reasonable investment-backed expectations for the site." ' " (Id. at pp. 36-37.)

The trial Court deemed the taking claim abandoned for purposes of the writ petition. (Id. at p. 37.) The trial Court then conducted a trial on the issue of liability for inverse condemnation. (Ibid.) The trial Court held that a de facto taking occurred "because the only remaining use of the property was as vacant land for recreation, parking, or to preserve views." (Id. at p. 38.) A jury then found that city was liable to the Plaintiff for the fair market value of the property. (Ibid.) On appeal in Felkay, the Court first noted: "Pursuant to section 30010, where a restriction would require denial of a permit that would deprive the owner of the economic benefit or productive use of the property, the local agency 'has two options: deny the permit and pay just compensation; or grant the permit with conditions that mitigate the impacts that limitations were designed to prevent.' [Citation.]

The government entity may ' "limit application of the resource protection policies to the extent necessary to allow a property owner a constitutionally reasonable economic use of his or her property." ' [Citation.]" (Felkay, supra, 62 Cal.App.5th at p. 39.) The Felkay Court rejected the city's arguments of ripeness, failure to exhaust administrative remedies, and failure to exhaust judicial remedies. (Felkay, supra, 62 Cal.App.5th at pp. 39-43.) As a result, the Court affirmed the trial Court's judgment. (Id. at p. 43.) (C) Lucas -Type Claim Petitioner argues here that there is no basis for the Commission determining that there would be a Lucas -type taking by the denial of the CDP.

The Commission found that "the record is sufficient to determine that denial of the CDP for the proposed project could result in a categorical taking under Lucas." (AR 47.) The basis for this finding is that LCP land use designation and zone district for the site is Single Family Residence (R-1), but all such allowable uses would be constrained in the same way as the proposed residential use due to the fact that dune ESHA covers almost the entire developable site. (AR 46, 47.) Petitioner argues that there are alternatively available resource dependent, economically viable uses that could be developed on the Property without violating the Coastal Act. "The categorical rule that we applied in Lucas states that compensation is required when a regulation deprives an owner of ' all economically beneficial uses' of his land. [Citation.]

Under that rule, a statute that 'wholly eliminated the value' of Lucas' fee simple title clearly qualified as a taking. But our holding was limited to 'the extraordinary circumstance when no productive or economically beneficial use of land is permitted.' [Citation.] The emphasis on the word 'no' in the text of the opinion was, in effect, reiterated in a footnote explaining that the categorical rule would not apply if the diminution in value were 95% instead of 100%. [Citation.] Anything less than a 'complete elimination of value,' or a 'total loss,' the Court acknowledged, would require the kind of analysis applied in Penn Central. [Citation.]" (Tahoe-Sierra Preservation Council, Inc. v.

Tahoe Regional Planning Agency (2002) 535 U.S. 302, 330 [122 S.Ct. 1465, 152 L.Ed.2d 517].) Permitted uses for property in zone R-1 are: " Permitted Uses "1. One single-family dwelling per legal lot. Such dwelling may be a mobile home certified under the National Mobile Home Construction and Safety Standards Act of 1974 (42 U.S.C. Section 5401 et seq.) on a permanent foundation system, pursuant to Health & Safety Code Section 18551, and subject to the provisions of Section 35-141. "2. One guest house or artist studio, subject to the provisions in Section 35-120 (General Regulations) and accessory to the primary residential use of the same lot. "3.

Home occupations subject to the provisions of Section 35-121. (General Regulations) and accessory to a residential use of the same lot. "4. Orchards, truck and flower gardens, and the raising of field crops, provided there is no sale on the property of the products produced. "5. Greenhouses, hothouses, and other plant protection structures subject to all of the following: "a. The structure is accessory to either a residential or agricultural use of the same lot. "b. The structure shall not exceed a gross floor area of 300 square feet. "c.

The structure is used only for the propagation and cultivation of plants. "d. No advertising sign, commercial display room, or sales stand is maintained on the same lot in connection therewith. "6. The keeping of animals and poultry accessory to the primary residential use located on the same lot and subject to the provisions of Section 35-71.12. " 7. Public parks, public playgrounds, and community centers operated by a public agency. "8. Special Care Homes, subject to the provisions of Section 35-143 (Community Care Facilities). " 9.

Transitional and Supportive Housing, subject to the provisions of Section 35-143.5 (Transitional and Supportive Housing). "10. Uses, buildings, and structures accessory and customarily incidental to the above uses. When accessory to dwellings, said uses, buildings and structures shall be for the exclusive use of the residents of the premises and their guests and shall not involve the maintenance of a commercial enterprise on the premises." (AR 3005 [Santa Barbara County Code, Sec. 35-71.3], enactment history omitted.) " Uses Permitted With A Major Conditional Use Permit. "1.

Commercial Kennels. "2. Golf courses and facilities incidental and subordinate to such use (e.g., restaurant, pro shop, driving

range) but not including commercial driving tees, putting courses, or miniature golf courses." (AR 3005 [Santa Barbara County Code, Sec. 35-71.4], enactment history omitted.) "Uses Permitted With a Minor Conditional Use Permit.

1. Greenhouses, hothouses, and other plant protection structures in excess of 300 square feet but in no case shall such structures exceed an area of 800 square feet.

2. The commercial raising of worms.

3. Residential Child Care Center. "4. Private Kennels." (AR 3006 [Santa Barbara County Code, Sec. 35-71.5], enactment history omitted.) (Note: Chapter 35 of the Santa Barbara County Code is the Coastal Zoning Ordinance of Santa Barbara County, and part of the County's Local Coastal Program (LCP). (Santa Barbara County Code, Sec. 35-50.)) On the face of the ordinance relied upon by the Commission, all permitted uses appear, as the Commission found, to be limited to non-resource dependent uses which would not be permissible uses under the Coastal Act.

Petitioner makes much of the use of the word "may" in the Commission's findings: "Denial, or the requirement to solely allow resource-dependent uses on this property (e.g., habitat restoration or an interpretive trail), may result in a deprivation of all economically beneficial uses of the property. Thus, the record is sufficient to determine that denial of the CDP for the proposed project could result in a categorical taking under Lucas. " (AR 47, italics added.) Petitioner argues that the Commission has only made a finding that a taking might occur, not that a taking would necessarily occur by a denial.

This language, in context, is a clear finding by the Commission that denial of a CDP would result in an unconstitutional taking. The Commission's point is that none of the permissible uses under the LDP are permissible under the Coastal Act for ESHA. This is a determination that denial of a CDP, or a limitation to allow only resource-dependent uses on the Property--the only permissible outcomes under the Coastal Act--would leave the Property without any permissible beneficial use, and hence, deprive the owner of all economically beneficial uses of the property.

There is therefore substantial evidence to support the Commission's finding that denial of the CDP or a limitation solely to allow resource-dependent uses on the Property would constitute a categorical taking under Lucas. (AR 46-47; see Felkay, supra, 62 Cal.App.5th at pp. 37-40.) (D) Nuisance Petitioner argues that the nuisance exception to takings applies here. "[M]any of our prior opinions have suggested that 'harmful or noxious uses' of property may be proscribed by government regulation without the requirement of compensation." (Lucas, supra, 505 U.S. at p. 1022.) "We believe similar treatment must be accorded confiscatory regulations, i.e., regulations that prohibit all economically beneficial use of land: Any limitation so severe cannot be newly legislated or decreed (without compensation), but must inhere in the title itself, in the restrictions that background principles of the State's law of property and nuisance already place upon land ownership.

A law or decree with such an effect must, in other words, do no more than duplicate the result that could have been achieved in the Courts--by adjacent landowners (or other uniquely affected persons) under the State's law of private nuisance, or by the State under its complementary power to abate nuisances that affect the public generally, or otherwise." (Id. at pp. 1028-1029.) The nuisance exception was addressed in Monks v. City of Rancho Palos Verdes (2008) 167 Cal.App.4th 263 (Monks). In Monks, the City of Rancho Palos Verdes enacted an ordinance imposing a moratorium on the construction of new homes in the vicinity of where landslides had occurred. (Id. at p. 269.)

The Plaintiffs in Monks owned lots covered by the moratorium. (Ibid.) While Plaintiffs' application for permission to build on their properties was pending, the city approved a resolution making it impossible for Plaintiffs to build. (Ibid.) Plaintiffs filed an action seeking a writ of administrative mandate to invalidate the resolution and alleging a claim for inverse condemnation. (Id. at p. 270.) In an earlier appeal, the Court of Appeal concluded that the Plaintiffs were entitled to a trial on the takings claim. (Ibid.)

The trial Court concluded that a permanent taking had not occurred. (Ibid.) On appeal in Monks, the Monks Court concluded that there was a Lucas -type taking. (Monks, supra, 167 Cal.App.4th at p. 297.) As a result, the Court concluded that the city could only prevail if the Plaintiffs'

development would constitute a nuisance or violate property law. (Id. at p. 300.) The Court noted the definition of nuisance in Civil Code section 3479: "Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance." (Accord, Monks, at p. 301.) " 'The Restatement Second formulates the requirement of substantiality as proof of "significant harm," defined as a "real and appreciable invasion of the Plaintiff's interests," one that is "definitely offensive, seriously annoying or intolerable." [Citation.]

The measure is an objective one: "If normal persons in that locality would not be substantially annoyed or disturbed by the situation, then the invasion is not a significant one...." [Citation.] The unreasonableness of a given interference represents a judgment reached by comparing the social utility of an activity against the gravity of the harm it inflicts.... Here again, the standard is an objective one: "[T]he question is not whether the particular Plaintiff found the invasion unreasonable, but 'whether reasonable persons generally, looking at the whole situation impartially and objectively, would consider it unreasonable.' " ' [Citations.]" (Monks, supra, 167 Cal.App.4th at p. 301.) " 'Unlike public nuisance, which is an interference with the rights of the community at large, private nuisance is a civil wrong based on disturbance of rights in land....

A nuisance may be both public and private, but to proceed on a private nuisance theory the Plaintiff must prove an injury specifically referable to the use and enjoyment of his or her land. The injury, however, need not be different in kind from that suffered by the general public....' " (Monks, supra, 167 Cal.App.4th at p. 302, citation omitted.) " 'In distinction to trespass, liability for nuisance does not require proof of damage to the Plaintiff's property; proof of interference with the Plaintiff's use and enjoyment of that property is sufficient....

In further distinction to trespass, however, liability for private nuisance requires proof of two additional elements....' " (Monks, supra, 167 Cal.App.4th at p. 302, citation omitted.) " 'The first additional requirement for recovery ... on a nuisance theory is proof that the invasion of the Plaintiff's interest in the use and enjoyment of the land was substantial, i.e., that it caused the Plaintiff to suffer "substantial actual damage." ... The degree of harm is to be judged by an objective standard, i.e., what effect would the invasion have on persons of normal health and sensibilities living in the same community? ... "If normal persons in that locality would not be substantially annoyed or disturbed by the situation, then the invasion is not a significant one, even though the idiosyncrasies of the particular Plaintiff may make it unendurable to him."

This is, of course, a question of fact that turns on the circumstances of each case." (Monks, supra, 167 Cal.App.4th at p. 303, citations omitted.) " 'The second additional requirement for nuisance is superficially similar but analytically distinct: "The interference with the protected interest must not only be substantial, but it must also be unreasonable ' ..., i.e., it must be "of such a nature, duration or amount as to constitute unreasonable interference with the use and enjoyment of the land." ...

The primary test for determining whether the invasion is unreasonable is whether the gravity of the harm outweighs the social utility of the Defendant's conduct.... Again the standard is objective: the question is not whether the particular Plaintiff found the invasion unreasonable, but "whether reasonable persons generally, looking at the whole situation impartially and objectively, would consider it unreasonable." ' " (Monks, supra, 167 Cal.App.4th at p. 303, citations omitted.) Applying these standards, the Monks Court concluded that the moratorium was not justified by state nuisance law. (Monks, supra, 167 Cal.App.4th at pp. 305-306.) "In essence, the city must show that, under common law nuisance principles, it could obtain an injunction against the construction of homes on Plaintiffs' lots." (Id. at p. 306.)

Among other things, the Monks Court found that the uncertainty with respect to the geology in the landslide area was not a basis to establish a nuisance: " 'Uncertainty' is not a sufficient basis for depriving a property owner of a home. The city must establish a reasonable probability of significant harm to obtain an injunction against a nuisance." (Ibid.) The Commission here determined that the proposed house on the Property would not constitute a nuisance. (AR 51.) The Commission recognized that the site is vulnerable to sea level rise and other coastal hazards over the life of the proposed development that could result in damage and debris affecting other property or waterways

that, should they occur, could constitute a nuisance. (Ibid.) "While these situations might result in one or more public nuisances at some point, such circumstances would depend on a number of factors and cannot be concluded with certainty at this time." (Ibid.) The Commission concluded that determining the development to be a nuisance now would be speculative. (Ibid.) While the Commission accepted that there was conflicting evidence on this issue (AR 51), the Commission's factual determination that the development would not be a nuisance is supported by substantial evidence. (E.g., AR 2209-2214 [addressing coastal hazards].) (E) Penn Central -Type Claim The determination that denial of a CDP, or a limitation to resource-dependent uses, would constitute a categorical taking does not end the Coastal Act inquiry.

The Penn Central analysis first confirms the Lucas analysis that complete denial of a CDP would result in a taking. The Penn Central analysis also provides a framework to determine whether a CDP issued with narrowing conditions would be a taking and, complementarily, to determine the minimum permissible development necessary to avoid a taking that is consistent with the purposes and principles of the Coastal Act. Under Penn Central, as discussed above, the Court engages in a factual analysis to evaluate regulatory takings claims with particular significance placed upon three factors: (1) the economic impact of the regulation on the claimant; (2) the extent to which the regulation has interfered with distinct investment-backed expectations; and (3) the character of the governmental action.

The Commission engaged in a factual analysis of each of these factors. With respect to economic impact, the question is "whether the regulation 'unreasonably impair[s] the value or use of [the] property' in view of the owners' general use of their property." (Allegretti & Co. v. County of Imperial (2006) 138 Cal.App.4th 1261, 1278.) The Commission considered the value of the Property as compared with neighboring properties. (AR 49-50.) The assessed value of the Property, the largest parcel (albeit mostly under water) on Sand Point Road, in 2024 was $3,062,207. (AR 49.)

The land value of the next largest property on Sand Point Road was estimated at $7,872,118 in 2024. (Ibid.) The most recent market sale on Sand Point road was assessed at $23,460,000 in 2024. (AR 50.) For the same reason that denial of a CDP would constitute a Lucas -type taking, there is substantial evidence that denial of a CDP would unreasonably impair the value or use of the property under the economic impact factor of the Penn Central analysis. With respect to the investment-backed expectations factor: "A ' "reasonable investment-backed expectation" ' must be more than a ' "unilateral expectation or an abstract need." ' [Citation.]

Also important in analyzing this factor is the 'nature and extent of permitted development under the regulatory regime vis-à-vis the development sought by the claimant.' [Citation.] This factor thus may depend on whether the landowner seeks to engage in a use of land that is comparable to that which has been permitted to neighboring landowners. That is, a landowner has a reasonable expectation to use property in the same manner as similarly situated landowners." (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 273 (Shaw).)

The Commission found that Sanddew had a reasonable investment-backed expectation in developing the Property by the construction of a single-family residence. (AR 47.) The Commission supports this finding with particular reference to the prior existence of a residence on the Property, that the sand spit has been continuously developed and redeveloped with residences since the 1920s, and the existing zoning permits such development. (Ibid.) Taken in connection with the finding, discussed above, that a complete denial of development would constitute a Lucas -type taking, these facts constitute substantial evidence of a reasonable expectation in some residential development.

This expectation is investment-backed as shown by the purchase of the Property in 2018 for $2.8 million. (AR 49.) As discussed below, Sanddew's reasonable expectation is for some residential development, not necessarily the extent of the development originally sought by Sanddew in its Application. With respect to the character of the governmental action, "[t]he Supreme Court in Penn Central did not define the 'character' factor except to say that it may depend on whether the regulation amounts to a physical invasion, which would lean towards a taking, or is instead more akin to a public program adjusting the burdens and benefits of economic life to promote the common good." (Shaw, supra, 170 Cal.App.4th at p. 274.)

The Commission found that this factor argues strongly against finding a taking because the Coastal Act as applied to

the Property would not amount to a physical invasion of the Property. Instead, a denial because of the Coastal Act would be "rooted in fundamental Coastal Act goals, objectives, and requirements, all of which advance legitimate public interests and coastal resource protections relative to the site." (AR 50.) Substantial evidence supports this finding and no party argues that this finding is factually incorrect. However, Sanddew points out that this factor is one of factors to consider in the Penn Central analysis and is not determinative.

The Commission determined, as an alternative to the Lucas analysis, that the Penn Central analysis also demonstrates that a complete denial of a CDP would constitute a Penn Central -type taking. (AR 51-52.) Although petitioner argues, as before, that the Commission's language does not expressly state that denial constitutes a taking, the text of the Commission's findings state the Commission's belief that a denial would constitute a taking. This language, and the findings taken in context, demonstrates the Commission's findings that unless the Commission allowed some development, a Court would determine that a taking had occurred.

There is substantial evidence to support the Commission's findings in its Penn Central analysis of the necessity to allow some development under the takings exception in order to avoid a taking. (F) Allowable Development Having determined that a complete denial of a CDP would constitute a taking under Lucas and Penn Central, the Commission next addressed the extent to which development would be permissible under Public Resources Code section 30010. The Commission "may ' "limit application of the resource protection policies to the extent necessary to allow a property owner a constitutionally reasonable economic use of his or her property" ' [citation]," and so impose mitigating conditions in the CDP. (Felkay, supra, 62 Cal.App.5th at p. 39.)

The Commission engaged in a lengthy analysis of modifications to the development would limit coastal resource impacts as much as possible while permitting minimal development to avoid a taking. (AR 52-59.) Driving this analysis are two basic concepts. First, applying the Penn Central discussion, necessarily permissible development follows the owner's reasonable investment-backed expectations. Permitting development outside of those expectations here would be unnecessary because the denial of such development would not constitute a taking under the Penn Central balancing of factors.

The reasonableness of expectations for development, on the other hand, depends upon appropriate mitigation measures to address the actual or potential harm to coastal resources. Second, and related to the reasonableness of expectations, the impacts to the ESHA need to be minimized by the permissible development. The development that is permitted must not go beyond what is necessary to avoid a taking, even though such development would not otherwise be permissible under the Coastal Act. The Commission properly focused on the reasonable expectations of development of a single family residence.

The Commission also focused on scaling back the permissible development. Notable among the 15 special conditions of the approved CDP are limitations on the development footprint, a dune restoration plan requirement, biological and resource monitoring during construction, and removal agreements in the event the development becomes unsafe or not feasibly maintained. (AR 4-20.) Among the evidence supporting this determination is the pre-existing gravel drive (approximately 4,792 sq. ft.) and non-native invasive ice plant degrading dune mat (approximately 0.6 acres), where development can take place protecting the most critical dune areas. (AR 52-53, 69-86.)

The Commission's extensive analysis demonstrates both that substantial evidence supports its findings and that the final determination is supported by those findings. (3) Permitting Jurisdiction Petitioner argues that the Commission improperly exercised jurisdiction in this matter because local discretionary approvals must first be obtained before the Commission may review the CDP application, citing California Code of Regulations, title 14, sections 13052 and 13053. "When development for which a permit is required pursuant to Public Resources Code, Section 30600 or 30601 also requires a discretionary permit from one or more cities or counties or other state or local governmental agencies, a permit application shall not be accepted for filing by the Executive Director unless all such governmental agencies have granted at a minimum their preliminary approvals for said development, except as provided in section 13053.

An applicant shall have been deemed to have complied with the requirements of this Section when the proposed development has received approvals of any or all of the following aspects of the

proposal, as applicable: "(a) Tentative map approval; "(b) Planned residential development approval; "(c) Special or conditional use permit approval; "(d) Zoning change approval; "(e) All required variances, except minor variances for which a permit requirement could be established only upon a review of the detailed working drawings; "(f) Approval of a general site plan including such matters as delineation of roads and public easement(s) for shoreline access; "(g) A final Environmental Impact Report or a negative declaration; "(h) Approval of dredging and filling of any water areas; "(i) Approval of general uses and intensity of use proposed for each part of the area covered by the application as permitted by the applicable local general plan, zoning requirements, height, setback or other land use ordinances; "(j) Evidence of a commitment by local government or other appropriate entity to serve the proposed development at the time of completion of the development, with any necessary municipal or utility services designated by the Executive Director of the Commission; "(k) A local government coastal development permit issued pursuant to the requirements of Chapter 7 of these regulations." (Cal.

Code Regs., tit. 14, Sec. 13052.) "The executive director may waive the requirement for preliminary approval by other federal, state or local governmental agencies for good cause, including but not limited to: "(1) The project is for a public purpose; "(2) The impact upon coastal zone resources could be a major factor in the decision of that state or local agency to approve, disapprove, or modify the development; "(3) Further action would be required by other state or local agencies if the coastal commission requires any substantial changes in the location or design of the development; or "(4) The state or local agency has specifically requested the coastal commission to consider the application before it makes a decision or, in a manner consistent with the applicable law, refuses to consider the development for approval until the coastal commission acts." (Cal.

Code Regs., tit. 14, Sec. 13053, subd. (a).) The Commission exercised its jurisdiction over this matter pursuant to Public Resources Code section 30601.3. (AR 22.) "Notwithstanding Section 30519, the commission may process and act upon a consolidated coastal development permit application if both of the following criteria are satisfied: "(1) A proposed project requires a coastal development permit from both a local government with a certified local coastal program and the commission. "(2) The applicant, the appropriate local government, and the commission, which may agree through its executive director, consent to consolidate the permit action, provided that public participation is not substantially impaired by that review consolidation." (Pub.

Resources Code, Sec. 30601.3, subd. (a).) The Commission and Sanddew argue that petitioner's argument is waived because petitioner failed to exhaust administrative remedies. " 'Where an administrative remedy is provided by statute, this remedy must be exhausted before the Courts will act. [Citations.] This " 'is not a matter of judicial discretion, but is a fundamental rule of procedure laid down by Courts of last resort, followed under the doctrine of stare decisis, and binding upon all Courts.' [Citations.]" [Citation.]

The rationale for the rule is that an agency is entitled to learn the contentions of interested parties before litigation arises, so it will have an opportunity to address the contentions and perhaps render litigation unnecessary. [Citation.] To advance this purpose an interested party must present the exact issue to the administrative agency that is later asserted during litigation or on appeal. [Citation.] General objections,

generalized references or unelaborated comments will not suffice. [Citation.] " '[T]he objections must be sufficiently specific so that the agency has the opportunity to evaluate and respond to them.' [Citation.]" [Citation.] [P.] "The petitioner bears the burden of demonstrating that the issues raised in the judicial proceeding were first raised at the administrative level. [Citation.]" [Citation.]' [Citation.]" (Greene v. California Coastal Com. (2019) 40 Cal.App.5th 1227, 1237-1238 (Greene).) "To satisfy the exhaustion requirement, [a party is] required to present the ' "exact issue" ' to the administrative agency." (Id. at p. 1238.)

Petitioner responds that there was no public notice of the transfer of review authority and so raising the issue was not required. "As [Public Resources] Code section 21177, subdivision (e), indicates, exhaustion of administrative remedies has not been required of CEQA petitioners who did not receive proper notice of administrative hearings." (McQueen v. Board of Directors (1988) 202 Cal.App.3d 1136, 1150, disapproved on other grounds in Western States, supra, 9 Cal.4th at pp. 570, fn. 2, 575-576 & fn. 6.)

Interested members of the public, including counsel for petitioner did, in fact, raise multiple issues with the Commission in advance of the administrative hearing. (E.g., AR 2572-2584.) The petitioner has not met its burden to demonstrate that this issue was adequately raised to the Commission or to demonstrate that exhaustion was not required on this point. If the Court were to consider the issue on the merits, the Court would find that the conditions under Public Resources Code section 30601.3 were met, including both that the County had agreed to the consolidated proceeding and that public participation was not substantially impaired by that review consolidation, notwithstanding the shorter time periods used in the hearing before the Commission.

The County expressly consented to the consolidated permit process under section 30601.3. (AR 100.) Moreover, no further discretionary permits would be required. (AR 902 ["Proposed development meets all zoning requirements. Applicant is pursuing a consolidated permit per PRC Public Resources Code Section 30601.3 with CCC as the decision-maker. If the permit was not consolidated, a Coastal Development Permit with Hearing would have been required. No further permits required other than building permits."].)

The Court would not find that public participation was substantially impaired by the consolidated proceeding. Accordingly, the Court finds that the Commission consolidated proceeding was proper under section 30601.3. (4) CEQA Petitioner makes two arguments that the Commission's approval of the CDP violated CEQA: that feasible mitigation measures and project alternatives were available but improperly rejected by the Commission; and that the Commission failed to adequately consult with the CDFW, RWQCB, the UC Natural Reserve System, and the Coastal Band of the Chumash Nation as trustee agencies or entities. (A) Application of CEQA "CEQA is a comprehensive scheme designed to provide long-term protection to the environment. [Citation.]

In enacting CEQA, the Legislature declared its intention that all public agencies responsible for regulating activities affecting the environment give prime consideration to preventing environmental damage when carrying out their duties." (Mountain Lion Foundation v. Fish & Game Com. (1997) 16 Cal.4th 105, 112 (Mountain Lion Foundation).) "Generally, CEQA applies to discretionary projects." (Ibid.) "If a public agency proposes to approve a discretionary project, the agency's activity may nonetheless be exempt from CEQA by legislative command." (Ibid.) " 'The Legislature has provided that the Secretary of the [Natural] Resources Agency may certify a regulatory program of a state agency as exempt from the requirement of EIR preparation if the program requires that a project be preceded by the preparation of a written report containing certain information on the environmental impacts of the project. (Sec. 21080.5, subd. (a).)' [Citations.]

The certified regulatory program 'involv[es] essentially the same consideration of environmental issues as is provided by use of EIRs and negative declarations.' [Citation.] Thus, the 'state agencies, operating under their own regulatory programs, generate a plan or other environmental review document that serves as a functional equivalent of an EIR. [Citations.]' [Citation.]" (Friends, Artists & Neighbors of Elkhorn Slough v. California Coastal Com. (2021) 72 Cal.App.5th 666, 693 (Elkhorn Slough).) "The Coastal Commission's regulatory program--regarding the consideration and granting of coastal

development permits under the Coastal Act--has been certified as meeting the requirements of section 21080.5. [Citation.] As a result, '[u]nder the terms of section 21080.5, subdivision (c), that certification expressly exempts the [coastal development permit] process from the provisions of chapters 3 and 4 and section 21167 of CEQA. [Citation.] Chapters 3 and 4 deal, in large part, with the various requirements of an EIR at both the state level (chapter 3) and the local level (chapter 4). Section 21167 sets forth the time within which an action challenging a public agency's decision under the provisions of CEQA must be filed.' [Citation.]" (Elkhorn Slough, supra, 72 Cal.App.5th at pp. 693-694.) "[A] state agency operating a certified regulatory program 'generate[s] a[n] ... environmental review document that serves as a functional equivalent of an EIR. [Citations.]' [Citation.] 'The document used as a substitute for an EIR or negative declaration in a certified program' must include a 'description of the proposed activity.' [Citations.]

Relevant here, the document must also include either: '(A) Alternatives to the activity and mitigation measures to avoid or reduce any significant or potentially significant effects that the project might have on the environment, or [P.] (B) A statement that the agency's review of the project showed that the project would not have any significant or potentially significant effects on the environment and therefore no alternatives or mitigation measures are proposed to avoid or reduce any significant effects on the environment.

This statement shall be supported by a checklist or other documentation to show the possible effects that the agency examined in reaching this conclusion.' [Citations.] The functional equivalent EIR must be 'available for a reasonable time for review and comment by other public agencies and the general public.' [Citation.]" (Elkhorn Slough, supra, 72 Cal.App.5th at p. 694.) "Requiring specific findings about alternatives and mitigation measures 'ensures there is evidence of the public agency's actual consideration of alternatives and mitigation measures, and reveals to citizens the analytical process by which the public agency arrived at its decision. [Citations.]

Under CEQA, the public agency bears the burden of affirmatively demonstrating that, notwithstanding a project's impact on the environment, the agency's approval of the proposed project followed meaningful consideration of alternatives and mitigation measures. [Citation.]' [Citations.]" (Elkhorn Slough, supra, 72 Cal.App.5th at pp. 694-695.) "No provision of this division [i.e., CEQA] is a limitation or restriction on the power or authority of any public agency in the enforcement or administration of any provision of law which it is specifically permitted or required to enforce or administer, including, but not limited to, the powers and authority granted to the California Coastal Commission pursuant to Division 20 (commencing with Section 30000).

To the extent of any inconsistency or conflict between the provisions of the California Coastal Act of 1976 (Division 20 (commencing with Section 30000)) and the provisions of this division, the provisions of Division 20 (commencing with Section 30000) shall control." (Pub. Resources Code, Sec. 21174.) (B) Mitigation Measures and Alternatives Petitioner argues that it and others submitted evidence supporting the conclusions that (1) the Project authorized by the CDP would have significant effects on the environment that have not been evaluated and mitigated to less than significant levels, and (2) that there were feasible alternatives to the Project, including, among others: reducing the Project size, denying development impacting ESHA, developing mitigation measures, and paying compensation for conservation of the site. (Petitioner's Opening Brief, at p. 25.)

By failing to implement feasible alternatives and mitigation measures, petitioner asserts, there is a violation of both the Coastal Act and CEQA. Petitioner asserts that denial of the Project is not a taking and that, even if it were, the property owner could be compensated by a conservation acquisition. As discussed above, the Court finds that the Commission's conclusions on the takings issue are supported by its findings and its findings are supported by substantial evidence. Petitioner asserts that the Commission was under a duty to mitigate or avoid significant environmental effects, and, such duty includes pursuing an alternative through compensation, citing City of Marina v.

Board of Trustees of California State University (2006) 39 Cal.4th 341 (City of Marina). In City of Marina, the Board of Trustees of the California State University had a project to expand a small campus located at the former Fort Ord into a major institution. (City of Marina, supra, 39 Cal.4th at p. 345.) The environmental impact report (EIR) for the project identified environmental impacts for which the Trustees did not provide full mitigation. (Id. at p. 349.) The Trustees found that the improvements to roads and fire protection are not the responsibility of the Trustees, that mitigation was infeasible because the Trustees may not legally

contribute funds towards these improvements, and that the planned expansion offered overriding benefits. (Id. at p. 351.) The City of Marina Court found that the Trustees were not prohibited by law from contributing to protect the physical environment from the effects of their project. (Id. at pp. 356-362.) The Court stated: "The Trustees' second argument--that they lack the power to construct infrastructure improvements away from campus on land they do not own and control--is beside the point.

Certainly the Trustees may not enter the land of others to widen roads and lay sewer pipe; CEQA gives the Trustees no such power. (See Pub. Resources Code, Sec. 21004 ['[i]n mitigating or avoiding a significant effect of a project on the environment, a public agency may exercise only those express or implied powers provided by law other than this division.'].) CEQA does not, however, as we have explained, limit a public agency's obligation to mitigate or avoid significant environmental effects to effects occurring on the agency's own property. (See Pub.

Resources Code, Sec.Sec. 21002.1, subd. (b), 21060.5.) CEQA also provides that '[a]ll state agencies ... shall request in their budgets the funds necessary to protect the environment in relation to problems caused by their activities.' (Id., Sec. 21106.) Thus, as we have also explained, if the Trustees cannot adequately mitigate or avoid CSUMB's off-campus environmental effects by performing acts on the campus, then to pay a third party such as FORA to perform the necessary acts off campus may well represent a feasible alternative." (City of Marina, supra, 39 Cal.4th at p. 367.) "To be clear, we do not hold that the duty of a public agency to mitigate or avoid significant environmental effects (Pub.

Resources Code, Sec. 21002.1, subd. (b)), combined with the duty to ask the Legislature for money to do so (id., Sec. 21106), will always give a public agency that is undertaking a project with environmental effects shared responsibility for mitigation measures another agency must implement. Some mitigation measures cannot be purchased, such as permits that another agency has the sole discretion to grant or refuse. Moreover, a state agency's power to mitigate its project's effects through voluntary mitigation payments is ultimately subject to legislative control; if the Legislature does not appropriate the money, the power does not exist.

For the same reason, however, for the Trustees to disclaim responsibility for making such payments before they have complied with their statutory obligation to ask the Legislature for the necessary funds is premature, at the very least. The superior Court found no evidence the Trustees had asked the Legislature for the funds." (City of Marina, supra, 39 Cal.4th at p. 367, fn. omitted.) In City of Marina, the Court addressed environmental effects caused by the public agency's own project. While the obligation to mitigate or avoid significant effects on the environment of projects extends to projects that the agency approves (Pub.

Resources Code, Sec. 21002.1, subd. (b)), the feasibility of such mitigation by payment is significantly different when applied to this Project. The Commission is not authorized to purchase property and is not authorized to exercise its power to deny a permit in a manner that would constitute a taking without payment of just compensation. (McAllister, supra, 169 Cal.App.4th 912, 939; Pub. Resources Code, Sec. 30010.) "In mitigating or avoiding a significant effect of a project on the environment, a public agency may exercise only those express or implied powers provided by law other than [CEQA]. (Pub.

Resources Code, Sec. 21004.) "[A]n EIR need not study in detail an alternative that is infeasible or that the lead agency has reasonably determined cannot achieve the project's underlying fundamental purpose." (In re Bay-Delta etc. (2008) 43 Cal.4th 1143, 1165.) Here, the Commission considered the "no project" alternative and determined that such an alternative was not feasible because it would constitute a taking. As discussed in the context of the Penn Central factors, the Commission determined that reasonable investment-backed expectations of the Project are for the construction of a single family residence, which is the fundamental purpose of the Project.

The takings inquiry focuses on use of the affected property, not simply its value. (See Del Monte Dunes at Monterey, Ltd. v. City of Monterey (9th Cir. 1996) 95 F.3d 1422, 1433.) Sale outright of the Property, or sale of a conservation or other easement which otherwise effectively eliminates residential use of the Property, deprives Sanddew of the use of the Property which constitutes the fundamental purpose of the Project. The Coastal Act accounts for such a circumstance by the narrow takings exception.

The Commission meets its obligations by considering uses, not potential sales. The records shows that the Commission extensively considered environmental mitigation issues. The Commission's ultimate conclusion incorporates those mitigation issues expressly by its determination, discussed above, that special conditions are necessary to mitigate environmental effects as much as reasonably possible

while avoiding a taking. The Commission determined that remaining environmental effects cannot be mitigated without effecting a taking. (AR 59-60.) This determination is supported by substantial evidence as discussed above in the context of takings. (C) Consultation An agency is required "to consult with all public agencies that have jurisdiction, by law, with respect to the proposed activity." (Pub. Resources Code, Sec. 21080.5, subd. (d)(2)(C). Petitioner argues that the Commission failed to adequately consult with the California Department of Fish and Wildlife (CDFW), the Regional Water Quality Control Board (RWQCB), the UC Natural Reserve System (UC NRS), and the Coastal Band of Chumash Nation (CBCN).

In asserting that this issue was raised with the Commission, petitioner cites to comments in the administrative record referencing of these entities only UC NRS (AR 2605, 2649), a letter referencing the CBCN (AR 2595, 3519), and only generic references to consultation otherwise (AR 2603). (Opening Brief, p. 26; Reply Brief re RPI, p. 19.) Petitioner also cites to a letter outside the administrative record from the CDFW to the County of Santa Barbara. (PRRJN, exhibit E.) There is no citation to any objection as to inadequate consultation with the RWQCB.

This issue has not been exhausted and the Court will not consider the issue as to consultation with the RWQCB. (See Greene, supra, 40 Cal.App.5th at pp. 1237-1238 [exact issue must be presented; general comments will not suffice].) With respect to the CBCN, petitioner argues that the consultation was inadequate because the Commission did not impose all mitigation measures that the tribe requested. In response to the consultation, the Commission imposed special condition 9, which provides: "9. Tribal Cultural Resource Treatment and Monitoring Plan "BY ACCEPTANCE OF THIS PERMIT, the permittee agrees to comply with the following monitoring and testing requirements: "A.

At least one month prior to commencement of any ground-disturbing construction activities for the construction of the residential development, the permittees shall (i) notify in writing, email, and/or phone calls, as necessary, the representatives of Native American Tribes listed on an updated Native American Heritage Commission (NAHC) contact list; (ii) invite all Tribal representatives on that list to be present and to monitor ground-disturbing activities; and (iii) arrange for any invited Tribal representative that requests to monitor and a qualified archaeological monitor to be present to observe project activities with the potential to impact archaeological and/or tribal cultural resources.

A qualified archaeological monitor means qualified at a minimum by the California Office of Historic Preservation (OHP) standards. The monitor(s) shall have experience monitoring for archaeological resources of the local area during excavation projects, be competent to identify significant resource types, and be aware of recommended Tribal procedures for the inadvertent discovery of archaeological resources and human remains. Evidence of written notification shall be made available to the Executive Director upon request. "B.

If an area of tribal cultural and/or archaeological resources is discovered during ground-disturbing activities, all construction shall cease and shall not recommence except as provided in subsection (D) hereof, and the applicant shall immediately notify and retain a tribal cultural resource specialist and a qualified archaeologist to analyze the significance of the find in consultation with the Native American Tribes listed on the NAHC list. The archaeologist and tribal cultural resource specialist shall immediately notify the Tribes on the NAHC list.

Significance testing may be carried out only if acceptable to the affected Native American Tribe(s), in accordance with a Significance Testing Plan. An 'exclusion zone' of 50 feet in all directions where unauthorized equipment and personnel are not permitted shall be established (e.g., taped off) around the discovery area that includes a reasonable buffer zone recommended by the monitor(s). Project activities may continue outside of the exclusion zone. "C. Should human remains be discovered on-site during the course of the project, immediately after such discovery, MRCA, the on-site archaeologist, and/or Native American monitor shall notify the county coroner within 24 hours of such discovery, and all construction activities shall be temporarily halted until the remains can be identified.

An 'exclusion zone' may be established around the discovery area. If the county coroner determines that the human remains are those of a Native American, the coroner shall contact the NAHC within

24 hours, pursuant to Health and Safety Code Section 7050.5. The NAHC shall deem the Native American most likely descendant (MLD) to be invited to participate in the identification process pursuant to Public Resources Code Section 5097.98. MRCA shall comply with the requirements of Section 5097.98 and work with the MLD person(s) to preserve the remains in place, move the remains elsewhere on-site, relinquish the remains to the descendants for treatment, or determine other culturally appropriate treatment.

Within five (5) calendar days of notification to NAHC, the permittee/ landowner shall notify the Coastal Commission's Executive Director of the discovery of human remains and identify any changes to the proposed development or mitigation measures that may be needed related to the inadvertent discovery. The Executive Director shall maintain confidentiality regarding the presence of human remains on the project site. The Executive Director shall determine whether the identified changes are de minimis in nature and scope. "D.

A permittee seeking to recommence project activities within an exclusion zone following discovery of tribal cultural and/or archaeological resources (excluding the discovery of human remains, which shall follow Section 5097.98 as noted in (C) above) shall submit a Supplementary Archaeological Plan (SAP) prepared by the project archaeologist in consultation with the Native American Tribes listed on the NAHC list. The SAP shall be submitted for the review and written approval of the Executive Director.

If the Executive Director approves the SAP and determines that the SAP's recommended changes to the proposed development or mitigation measures are de minimis in nature and scope, construction may recommence after this determination is made by the Executive Director in writing. If the Executive Director approves the SAP but determines that the changes therein are not de minimis, construction may not recommence until after an amendment to this permit is approved by the Commission." (AR 12-14, bolding omitted.)

The Commission explained the consultation process: "Additionally, per the Commission's Tribal Consultation Policy, staff contacted representatives from Native American Tribes understood to have current and/or historic connections to the project area. These Tribes include the Barbareño/ Ventureño Band of Mission Indians, Chumash Council of Bakersfield, Coastal Band of the Chumash Nation, Northern Chumash Tribal Council, Santa Ynez Band of Chumash Indians, yak tityu tityu yak ti’hini - Northern Chumash Tribe, and the Barbareño Band of Chumash Indians.

Contact information for these Tribal Representatives was gathered from the Native American Heritage Commission's Native American Contact Lists. Responses were received from three tribes. Santa Ynez Band of Chumash Indians and yak tityu tityu yak ti’hini - Northern Chumash Tribe submitted letters requesting no further consultation. Coastal Band of Chumash Nation requested consultation on March 13, 2024, and the consultation was conducted between the Tribal Chair and Commission staff on June 24, 2024.

The Tribal Chair did not raise any specific objections to the project as proposed but noted that the project site is in an estuary, which is a culturally sensitive place. The Tribal Chair wanted to ensure that a Native American monitor from the Coastal Band of Chumash Nation could be present during ground disturbing activities, and if discovered, no artifacts would be allowed to be removed offsite but must be reburied on-site or within the project vicinity." (AR 43; see also AR 58, 3519.) Substantial evidence supports adequate consultation with the CBCN and the evidence supports the findings of the Commission.

The Commission did not abuse its discretion with respect to consultation with the CBCN. In its opening brief, petitioner asserts that the Commission failed to consult with UC NRS. (Opening Brief, p. 26, citing AR 2670.) The Reserve Director of UC NRS made public comments opposing the Project on the grounds stated in the Commission's findings that the Coastal Act (without consideration of the takings exception) would require that the CDP application be denied. (AR 2670.) The public comments do not state that UC NRS had not been consulted.

The record instead shows that UC NRS was consulted and its comments were considered by the Commission. (AR 570, 682, 2669-2670.) The Court finds that the Commission did not abuse its discretion with respect to consultation with UC NRS. With respect to the CDFW, petitioner asserts that "portions of the Project site are clearly under CDFW jurisdiction ...." (Opening Brief, at p. 26, citing AR 587.) This issue was raised before the Commission only by a general request for agency authorizations. (AR 1222.)

The response with respect to CDFW was: "CDFW- No impact to jurisdictional waters; no 1602 permit required. In CDFW comment letter dated July 19, 2021, CDFW requested 1. review and approval of

mitigation plan before any ground disturbance; 2. Submission of findings for sensitive invertebrates surveyed prior to initiation of Project activities." (AR 1222.) The CDFW early comment letter does not assert regulatory authority, but only that it "may need to exercise regulatory authority." (PRRJN, exhibit E, pp. 10, 11.) In its response, quoted above, the Commission found no basis for CDFW consultation. To the extent the issue was sufficiently raised at the Commission, the Court finds that there is no abuse of discretion with respect to consultation with CDFW.

The Court concludes that the Commission did not abuse its discretion with respect to consultation. (D) Fair Hearing Finally, petitioner argues that the Commission deprived the public of a fair hearing on the Project because it did not allow counsel for petitioner to speak and because certain Project details were not obviously stated. (Opening Brief, p. 27.) The record indicates that counsel's speaker request came through when the item was being heard, which was contrary to the Commission's procedures. (AR 4305.)

The record also indicates that Sanddew's replacement exhibit 6, submitted two days before the May 9, 2025, hearing date provides a revised development footprint to conform to the Commission's staff report and recommendation. (AR 2560-2563.) The Court finds that the public was provided a fair hearing. To whatever extent timing was improvidently short, the Court finds no prejudice as a result. (See Code Civ. Proc., Sec. 1094.5, subd. (b).) (5) Conclusion For the reasons set forth above, petitioner's application for issuance of a writ of mandate is denied.

Tentative Ruling: Belladiem Bookin v. Eric Torbet, et al Tentative Ruling: Belladiem Bookin v. Eric Torbet, et al