A 98-lot propposed subdivision in Los Osos was nixed by a judge. Photo Google map
A large subdivision in Los Osos that was stuck in the sewer moratorium limbo since 1991, and resurrected and approved by County Supervisors in 2023, was thrust back into limbo after a citizens’ activist group sued and a judge overturned the County’s final map approval.
The Estero Point Project (Tract 1646) is a 98-lot subdivision with one lot designated as a drainage basin and 97, single-family home lots on almost 20 acres sandwiched between Pecho Valley Road and Sea Pines Golf Course.
The subdivision map for Estero Point, a project owned by the Anastasi Development Company of Redondo Beach, Calif., was tentatively approved in 1990 but came with some caveats — it had to hook up to a community sewer and the County had to show there was sufficient water for the homes.
Anastasi also built the Monarch Grove Subdivision in the mid- to later-1990s, which sits just a short distance from Estero Point. (That project skirted the septic system moratorium by building a collection system and package treatment plant at Sea Pines.”)
The sewer issue was solved in 2016 when the community sewer system went online; and the water supply situation was technically resolved just last summer, with approval by the Coastal Commission of the General Plan/Local Coastal Program covering Los Osos. A big point of contention at the Commission was over the water supply, with a citizen activist group, The Sustainability Group, fighting the action.
The Sustainability Group has been appealing every construction project approved by the County to the Coastal Commission, making mostly the same argument that the over-drafting of the groundwater basin has not been resolved, despite formation of a partnership between the water purveyors to manage the basin. That partnership, prompted by a previous court order, has led to a Basin Management Plan, with a list of projects to do designed to relieve the over-drafting of the groundwater basin.
The Coastal Commission’s LCP approval came in 2024, but the tentative map went to County Supervisors and was approved in October 2023. It’s this time gap that the Sustainability Group sued to enforce.
The Subdivision Map Act of 1974 governs subdivisions of land in California and the lawsuit claimed the County’s actions to approve a final tract map violated the law. On April 8, they won the case.
“The San Luis Obispo County Board of Supervisors had approved the tract map at their Oct. 31, 2023, public board meeting,” The Sustainability Group said in a statement released after the judge’s ruling, “but the Judge ruled the County approval was ‘an abuse of discretion” because it violated California’s Subdivision Map Act.’”
The Group convinced the judge that by its own actions, it violated a covenant concerning sewer availability, put in place back in 1990, when the tentative map was recorded.
The issue appears to come down to a matter of timing. When Supervisors approved the final map in October 2023, the Coastal Commission had not yet allowed any new connections to the community sewer, holding the County’s feet to the fire over the water supply, more accurately, the water planning documents that the County had approved but had yet been approved by the Coastal Commission.
The Commission’s decision came down eight months after the Supervisors’ final map approval.
Superior Court Judge Craig van Rooyen’s ruling for plaintiff (The Sustainability Group), said, “At the time the County approved the Anastasi Development final map on Oct. 31, 2023, sewer connections to the subdivision, as required by the tentative map, were still unavailable because the Coastal Commission’s Special Condition 6 prohibited sewer service pending amendment of the Estero Area Plan.”
Special Condition 6 was a requirement inserted into the County’s permit to build the community sewer system, that said no new sewer hookups could be done until the County finished amending the Estero Area Plan (Los Osos’ General Planning area and LCP) and dealing with the water supply issue (over-drafting).
So, even though the sewer system was done in 2016, it took the County another eight years to finish work on the Estero Area Plan, an effort that started in 1992 with the formation of the Los Osos Citizen’s Advisory Council (LOCAC).
With Estero Point’s tentative map set to expire in December 2023, the County moved ahead with final map recordation that October.
The tentative map had been extended several times by the County since 1991, but was set to expire, so they decided that the sewer hookups were physically available, but not legally available until the planning documents were updated.
The Judge ruled that “substantial” compliance with the law wasn’t good enough.
“The County and the Anastasi Developer,” Judge van Rooyen said, “argue that the County’s proposed amendments to the Estero Plan had already been completed and were simply awaiting approval by the Coastal Commission so there was ‘substantial compliance’ with the tentative map’s sewer connection condition.
“That argument, however, misconstrues the language of Section 66498.1(b). The Code gives developers a vested night to substantially comply with the ordinances, policies, and standards in effect at the time of tentative map approval. It does not, however, excuse noncompliance with the explicit conditions of a tentative map.”
He added that the County’s argument is that the subdivision map does comply with the special condition because the sewer is now available to hook up to. But the judge said that’s not right, due to the timing of the various approvals.
“The sewer system was not available to connect to the project at the time the County approved the final map. Anastasi could not secure extensions of its vesting tentative rights simply by filing documents in late 2023 that predicted the tentative map conditions would be fulfilled in the future — even if those predictions were later shown to be accurate.”
He also rejected the County’s proposed work-around solution. “The County and the developer argue that the restrictive covenant agreement saves the final map by ensuring that no development will take place on any of the lots until sewer connections are available. There is no authority, however, for the use of restrictive covenants to toll the Subdivision Map Act deadlines.”
“Allowing this type of workaround,” Judge van Rooyen continued, “would render the Subdivision Map Act timeline meaningless and permit a developer to secure tentative vesting rights in perpetuity simply by agreeing to restrictive covenants that mirror the conditions of the tentative vesting map.”
As for the water supply question and argument, the judge decided it was moot.
“Since the Court has determined no sewer connection was legally available to the Anastasi Development on Oct. 31, 2023, it need not analyze whether there was substantial evidence to support the County’s finding that an adequate water supply existed.”
He goes on however, to say that in his opinion the County met the requirement of showing an adequate water supply, in case the matter is appealed.
“The Judge’s ruling,” reads a news release from the Sustainability Group, “essentially rescinds the 34-year-old Anastasi development map. A new map will have to be submitted if Anastasi wishes to proceed.”
Estero Bay News asked the County Counsel’s Office if they intended to appeal the ruling, which overturns an action by their clients, the County Supervisors?
“At this time,” said new County Counsel Jon Ansolabehere, “the County does not plan on appealing the decision; however, the Board will be meeting in closed session on April 29 to discuss this case. The property owner may also appeal the decision.”
EBN sent inquiries to Scott Anastasi, who runs the family business now, but had not heard back before deadline.
The company, as a named “party of interest,” could either take over the case from the County and appeal the decision; or drop it and submit a new tract map for consideration.
With the two special conditions that dragged down the old map now satisfied, starting over might be the prudent avenue to proceed. It would, however, also be subject to all requirements enacted since the old map was approved in 1990, things like parks fees and open space requirements, sewer assessment fees, and the newest one — a fee for habitat conservation, another requirement of the community sewer project that was only recently resolved.
The Habitat Conservation Plan or HCP is a federal document concerning preservation of habitat for the various endangered and protected species of plants and animals found in Los Osos and that charges a fee for new construction projects to cover the assumed loss of habitat.
That money is supposed to be dedicated to adding to the “greenbelt” that has been established to surround Los Osos with natural environs.
The HCP too was only recently finalized by the County after decades or work.
All of these can be expensive propositions, but this isn’t the only old subdivision map lurking under the surface in Los Osos and the particulars decided here could carry forward when the Sustainability Group or other citizen activists, challenge new growth in Los Osos in the future.
There was another issue hanging over the head of Estero Point Project, who would supply the water?
Anastasi Development got a will serve letter from Golden State Water, before the October 2023 vote by Supervisors on the final tract map. That letter was used to justify the water supply caveat in the tentative map.
S&T Mutual, a small mutually owned water provider that serves the Sunset Terrace neighborhood that abuts the Estero Point property, cried foul and complained to the Public Utilities Commission on Oct. 4, 2023.
S&T argued that the property lies within its service area and outside GSW’s and issuing a will-serve letter was done improperly.
S&T asked the CPUC to rescind the will-serve letter. But, S&T Mutual’s Board President, Julie McAdon, said they had withdrawn the complaint after reviewing it with an attorney.
