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Franco Decicco et al v. California Coastal Commission

October 3, 2011

FRANCO DECICCO ET AL., PLAINTIFFS AND APPELLANTS,
v.
CALIFORNIA COASTAL COMMISSION, DEFENDANT AND RESPONDENT.



(Super. Ct. No. CV090572) Dodie A. Harman, Judge Superior Court County of San Luis Obispo

The opinion of the court was delivered by: Gilbert, P.J.

CERTIFIED FOR PUBLICATION

(San Luis Obispo County)

A county's approval of a "principal permitted use" development within a coastal zone is not appealable to the Coastal Commission. But when the development project also requires approval of a subdivision, the Coastal Commission has appellate jurisdiction.

This case arises under the California Coastal Act (Pub. Resources Code, § 30000 et seq.).*fn1 Appellants filed a writ of mandate challenging the California Coastal Commission's (Commission) appellate jurisdiction over their coastal development project. The Commission demurred on the ground appellants failed to allege exhaustion of administrative remedies. The trial court sustained the demurrer without leave to amend. We need not decide whether appellants must exhaust administrative remedies prior to challenging the Commission's jurisdiction. The Commission has jurisdiction. We affirm.

FACTS

Franco and Sonia DeCicco own four contiguous lots in Cayucos in San Luis Obispo County (County). Their land is in the coastal zone. They applied to the County for a permit that would allow them to subdivide their parcels into five parcels and construct four townhouses and a motel.

Under the local coastal plan (LCP), the principal permitted uses for the DeCicco property are residential multi-family and commercial retail. The townhouses qualify as residential multi-family and the motel qualifies as commercial retail. The County approved the DeCiccos' permit application and sent notice of the approval to the Commission. The notice asserted the permit is not appealable to the Commission because the project conforms to the LCP's principal permitted uses for the property.

The Commission's staff disputed the County's conclusion that the permit is not appealable. The County affirmed its position. This triggered the dispute resolution provisions of the Commission's regulations whereby the Commission itself would decide its jurisdiction. (Cal. Code of Regs., tit. 14, § 13569, subd. (b).)

The Commission determined that although the project involved principal permitted uses, it also required approval for a subdivision. The Commission decided that subdivision approval conferred appellate jurisdiction on it under section 30603, subdivision (a)(4).

A local citizen's group filed an appeal of the DeCiccos' project. At a public hearing, the Commission determined that the appeal raised a substantial issue.

The DeCiccos filed a petition for writ of mandate challenging the Commission's jurisdiction. The Commission demurred to the petition on the ground that the DeCiccos failed to allege they exhausted administrative remedies. The trial court sustained the demurrer without leave to amend.

DISCUSSION

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