A half-mile from the Morro Sand Dunes in Los Osos, California, in a quiet residential neighborhood—the kind of sun-kissed neighborhood where neighbors walk to each other’s houses and children play outside—sit four vacant lots. Their emptiness is conspicuously out of place; almost eerie, like a haunting.
Tim Shea, a third-generation homebuilder, owns these four empty lots. He originally owned eight lots here, but he built homes on the first four a decade ago and sold them to families.
The remaining four empty lots bother Tim. “I don’t think we’re going to make money on them at this point,” he says. “I just want to build them out and fill in the neighborhood.” This area is beautiful, he says, “like Santa Barbara in the ’70s.” He lives nearby. He wants this part of the neighborhood to look cohesive, lived-in, “not some vacant, dusty lots next to these beautiful homes we’ve built.”
But one of the empty lots—well, that was a nightmare. A single green snail was found in the northwest corner of the lot. An endangered species of snail, would you believe it? Now Tim has to wait for another rainy season so surveyors can see if the snail is still there. For now, that lot—let’s call it The Snail Lot—is untouchable, according to the State. “That’s California for you,” Tim says.
But the three other vacant lots? They’re a different story. These three remain empty for a more human reason.
Twenty years ago, the County of San Luis Obispo approved construction on all of Tim’s lots. Tim agreed to build up the infrastructure on all the lots first, which he did: It cost millions. After Tim built four homes, the County approved building on the rest of Tim’s lots.
But then the California Coastal Commission stepped in, appealed Tim’s permits to itself, and reversed them.
Because of the sand dunes, a half-mile away.
The Coastal Commission’s Mission
In coastal California—the 1.5 million acres that are home to half the state’s population—people talk about the California Coastal Commission like it’s the mob. You don’t want the Commission’s attention. If you do something the Commission doesn’t like, you’re in serious trouble.
Now the Commission is a shadowy and unpredictable force controlling the coast.
The Coastal Commission was created in 1972 for a term of just four years, but California voters made the agency permanent with the Coastal Act of 1976. Its stated mission is “protecting and enhancing California’s coast and ocean for present and future generations.” Enhancing implies it’s adding something, but the Commission is mostly a subtracting force: It discourages building in the coastal zone, which extends from the southern border of Oregon to the northern border of Mexico and stretches inland up to five miles in some areas. The Commission’s twelve voting members have jurisdiction over “the use of land and water” in that area—a weighty and controversial power.
Technically the Coastal Commission works “in partnership with coastal cities and towns.” But partnership implies equal footing—two detectives working a beat together—and that’s not how this works. The Coastal Commission can appeal many local permitting decisions to itself, then delay or shut down projects.
If you put yourself in commissioners’ shoes, you can see how you might view your role: appointed guardian of the coast, a hovering Superman. California’s coast is one of the world’s natural wonders. We don’t want our coastline to look like Miami’s, some Californians will say, emphasizing “Miami” with the appropriate level of horror.
But even in its early years, the Coastal Commission’s aggression startled people. The agency intervened in small building projects that would have no discernable impact on the coast. And its commissioners and staff of experts had peculiar ideas about private property and the limits (or lack thereof) of government power. They believed, as historian Todd Holmes writes, “that owning property does not necessarily mean you have the right to alter its existing use.”
San Francisco Mayor (and future U.S. Senator) Dianne Feinstein quickly soured on the Coastal Commission when she tried to put up a fence in the backyard of her Monterey beach house: Absolutely not, the Commission said. Trade unions were also early critics: They found that construction projects shrunk under the Commission’s pressure to build small, if at all. Others had a problem with the Commission’s methods: It often acts as judge, jury, and executioner, wielding its power like a hammer over coastal communities.
“What was meant to protect coastal access has become a bureaucratic anchor dragging the state down,” Shawn VanDiver, chairman of the San Diego Convention Center Board, recently argued in The Orange County Register. He called the California Coastal Commission “a notorious example of how well-intentioned entities can drift from their mission and actively undermine the public interest.”
Now the Commission is a shadowy and unpredictable force controlling the coast, trapping Californians in a fog of uncertainty. Local governments and developers “must navigate a maze of restrictions without any clear sense of what the Commission will approve,” VanDiver says, which “kills good projects before they start.”
A Misleading Illustration
“We’re not on the oceanfront or anything,” Tim Shea says of his lots being held up in limbo.
Tim knows California construction. His great-grandfather founded J.F. Shea, the company that built the Golden Gate Bridge and the San Francisco-Oakland Bay Bridge, back when California was known for what it built instead of what it blocked. Tim has his own small homebuilding business, Shear Development, which he’s using to develop these lots.
You can tell from talking to Tim: He just likes to build. Maybe it’s in his DNA. He likes creating something from nothing.
Looking at his empty lots, Tim emphasizes that these are not “coastal” properties by any common-sense definition. “There’s a school down in front of us,” he says. “There’s a golf course down in front of us. There’s a whole neighborhood of like two hundred homes down on the left.” The actual coast is a 10-minute walk away.
So this is the mystery: How (and why) did the California Coastal Commission appeal the building permits on these lots?
Ah, you see: The Commission also likes creating something from nothing.
The California Coastal Commission is allowed to appeal permits in areas with Environmentally Sensitive Habitats. On the County’s official maps, Tim’s lots aren’t in an area with an Environmentally Sensitive Habitat. But there’s an illustration, buried in Chapter Six of an area plan, that partially depicts areas which might contain dune sands, and which covers Tim’s lots—as well as virtually all of urban Los Osos.
The area plan says that urban Los Osos, where Tim’s lots are, is not part of the sand dunes habitat, taking the common-sense step of designating (and therefore preserving) only the relatively untouched rural areas of the community. But if you were (hypothetically) a bureaucrat who wanted to block construction in this residential neighborhood, a half-mile from the sand dunes, you could ignore the County’s official maps and regulatory language and instead rely on this single illustration to claim authority that (let’s be honest) you don’t legally have.
And that’s precisely what the California Coastal Commission did.
“I’m definitely frustrated as heck with it,” Tim says.
Going to the State Supreme Court
The California Supreme Court agreed to hear Tim’s case. Pacific Legal Foundation, which represents Tim along with former PLF attorney Paul Beard, will argue the Coastal Commission didn’t have a legal right to appeal Tim’s permits. We’re also arguing that their rationale for denying the permits (they claimed Tim’s lots don’t have proper water access) is flat-out wrong. (“We don’t need water; I’ve already got water,” Tim says.)
Tim has put millions of dollars into these properties. He just wants people to live here. Vacant lots inside a residential neighborhood are of no use to anyone. And California has a severe housing shortage: People with six-figure incomes now qualify for affordable housing and college students are reportedly sleeping in cars. Across the coastal zone, how many would-be homes are stuck like this, in a state of almost-being, empty spaces where people could be living?
“A lot of guys that have lots around here have just waited it out, waited it out, waited it out,” Tim says, “under a frustrating atmosphere.”
As of publication of this magazine, the California Supreme Court hasn’t set a date yet for oral arguments in Tim’s case—so he’s still waiting, but now he’s waiting with a purpose. This court date is a long time coming. It’s been 38 years since PLF defeated the California Coastal Commission at the U.S. Supreme Court in the case of Pat Nollan, a case that established hard limits on the Commission’s treatment of property owners. Since then, PLF has represented countless homeowners and builders—some, like Tim, trying to build new homes; others asking to do something as simple as put up a sign. We represented Warren Lent, who was fined $4.185 million over a gate; Stephanie Tibbitts, who just wanted to make her home wheelchair-accessible; the Lynch family, who wanted to protect their home with a seawall, and others.
For people who’ve clashed with the Commission, the name Nollan carries almost supernatural meaning: It’s the name of a major battle that was won. Now, with Tim Shea’s case, the Commission is due for another high-level reckoning.
