Colmer / Black Hill Villas Project Decision

By Jack McCurdy

Synopsis: Local judge blocks housing development adjacent to Morro Bay State Park because of threats to critical habitat and increased runoff causing more sedimentation of the Morro Bay National Estuary.

A proposed plan to build 16 two-story houses and a two-story duplex on three acres in a section of Morro Bay, a development that could increase the sedimentation of the Morro Bay National Estuary through graded soil flowing into nearby Chorro Creek and into the Estuary, has been blocked by a Superior Court decision resulting from a law suit filed by Save the Park, a group of Morro Bay residents.

The location of the proposed development is on Quintana Road just west of South Bay Boulevard on the south side adjacent to Morro Bay State Park.

San Luis Obispo County Judge Charles W. Crandall ruled that the city of Morro Bay did not comply with its General Plan and the California Coastal Commission failed to comform with the Coastal Act in approving the project, both of which he reversed.

The flow of soil and debris down Chorro and Los Osos creeks has been identified by the National Estuary Program as the Estuary's biggest threat, caused by the buildup of sedimentation as well as pollution from bacteria and chemicals in the Estuary.

The developer, Wayne Colmer under the project's name, Black Hill Villas L.C., can ask for reconsideration of the decision, appeal to a higher court, or return to the California Coastal Commission to determine if its approval of the project can be modified to comply with the court decision. Colmer said the Commission will review the court's decision in closed session at its August 11-13 meeting, and he will decide what action to take, if any, depending on what comes out of that meeting. The Commission meeting is scheduled in the San Luis Obispo County Board of Supervisors chambers.

In his decision, Crandall said biological surveys undertaken by the developer were inadequate. biological techniques to establish the type of   Environmentally Sensitive Habitat Area (ESHA) and its boundaries were not specified and questions about the location of those areas were left to be answered after approval was granted, all of which, he said, "calls into question the validity of the entire process."

The Commission should have required the developer to undertake the necessary biological studies "before any development on the site was approved."

The judge added that "under the law, the agency's decision must be transparent, readily understood, and supported by the evidence. That is not the case here."  " . . . a writ of mandamus will be issued directing the Commission to revoke its project approval until appropriate studies are undertaken, adequate ESHA boundaries are determined, and adequate findings are ariculated in the record."

Crandall noted that "the site is especially problematic for development because it contains a variety of critical habitat including an important tributary of the estuary, a riparian corridor, suspected wetlands, and foraging territory for nesting raptors. Construction will entail significant disruption of on-site habitats, including stripping or grubbing more than 70% of the property and grading nearly 7,000 cubic yards of soil to create adequate sites for houses."

That soil, he indicated, could easy wind up in nearby Chorro Creek and into the Estuary, whose waters are rapidly disappearing into mud flats  from sedimentation coming from the creeks.

Morro Bay State Park is a nationally recognized ecosystem, Crandall wrote, and the Morro Bay National Estuary is considered the most iimportant wetlands on the Central Coast of California. "A senitive and delicate balance exists between tidal flushing of Morro Bay and the nutrient-rich freshwater runoff, which can be easily disrupted. Any development occurring in the vicinity of an Environmentally Sensitive Habitat Area . . .  must be carefully reviewed and approved" by the city's Local Coastal Plan. 

In  2007, the city Planning Commission and City Council approved the development. So did the Coastal Commission with added protective measures. In 2008, the Save the Park group, represented by Cambria attorney Cynthia Hawley, filed suit "alleging the development, even with protective measures, would disrupt and disturb the environmental sensitive areas located on the property . . . "

One of the members of Save the Park, Roger Ewing, said in response to the decision:  "Due to the city's coastal location, there are lots that contain ESHAs. The city's General Plan allows for their development in a balanced way, i.e. plan the development to co-exist within a protected species habitat. The court has agreed that the rules we have set for ourselves within our General Plan must be followed.  

"A similar instance was recently before the Planning Commission, where in North Morro Bay, a subdivision development was requested inside an ESHA setback previously determined by the California Department of Fish and Game.  Fortunately, the commissioners honored the setback. That is what was being asked of Black Hill Villas. Ray McKelligott, a long time resident, a neighbor to the Villas project and one of its appellants to the Coastal Commission, advocated for upholding the rule of law and rejoiced when he heard the judge's decision just a few days before he passed away." 

Meg Caldwell and Mary K. Schallenberger, members of the Coastal Commission, also appealed the Commission's approval of the project. 

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