 The
Subdivision Map Act (Map Act) vests in cities and counties the power to regulate and
control the design and improvement of subdivisions within their boundaries. Generally,
there are two ways to subdivide property in California: (1) through conveyance, and (2)
through recorded subdivision map.
There are generally two types of mapping approaches contemplated
under the Map Act. The first involves a parcel map. A parcel map is generally used to
create four or fewer lots, is instantly recordable, lasts forever once recorded unless
superseded by a later recording, and normally does not require satisfaction of its
conditions of approval until a later building permit or other permit for development is
sought.
The second mapping approach involves tentative and final maps. A
tentative map is generally used to create five or more lots. The tentative map itself is
not recordable and survives only a limited amount of time. During that limited life, the
subdivider must satisfy the conditions imposed by the approving city/county and attached
to the tentative map approval, or it must enter into an improvement agreement promising to
satisfy the conditions. Upon satisfaction of the conditions, the submittal and approval of
a final map in substantial conformance with the tentative map, and recordation of the
final map, the lots are established as legal.
While it may take years to process and secure the approval of a
tentative map — California remains one of the most difficult states for development
approvals — once approved, the life of the tentative map itself is very short.
Once a tentative map expires, it cannot be revived. Instead, a new
tentative map must be applied for, processed, and approved. Such reapproval can prove
costly from a time and resource perspective, and it can be potentially disastrous from a
political perspective. Therefore, because subdividers are in the business of creating
legal lots in as resource-efficient a manner as possible, they are uniquely interested in
keeping their tentative maps alive until such time as they are able to record their final
maps and realize the product of their efforts-saleable lots.
While it may take years to process and secure the approval of a
tentative map, once approved, the tentative map itself is only good for 24 months (or 36
months in those communities that provide an additional 12 months by local ordinance).
Practitioners call this time frame the tentative map’s initial life. Thus, unless a
final map is filed with the city/county within this two-year time frame or the tentative
map is extended, the tentative map will expire. If the tentative map expires, the process
starts all over again; a new tentative map application will have to be prepared, processed
and approved.
Fortunately, under the Map Act, a subdivider can seek extensions to
the Initial Life of a tentative map. Practitioners call it a tentative map’s
Extension Life. Sections 66452.6, 66452.11 and 66452.13 of the Map Act establish the
extension periods available for a tentative map. These sections are not mutually
exclusive; a subdivider may secure multiple extensions of time under the various extension
provisions. The following discussion explains the types of extensions available with
examples of how these extensions work in practice.
A tentative map on property subject to a statutory development
agreement may be extended for the period of time specified in the development agreement,
which specified period cannot exceed the term of the development agreement itself.
The life of a tentative map is automatically stayed for up to a
maximum of five years during a development moratorium that is imposed after a tentative
map is approved. Once a development moratorium terminates, the tentative map remains alive
for the time it would otherwise have remaining as if the moratorium had not occurred,
unless that remaining period of time is less than 120 days, in which case the tentative
map will be valid for 120 days after termination of the moratorium.
A development moratorium can include moratoria based on
infrastructure constraints (e.g., sewer, water), as well as other actions of public
agencies which regulate land use, development or services. This also includes conditions
of approval imposed on the tentative map that necessitate action by the city/county, and
the city/county prevents, delays, or fails to take that necessary action. A moratorium may
also arise from conditions imposed by a city/county prior to approval of a project (such
as to prepare, complete, and adopt sub-area facilities plans and related financing).
A pending lawsuit involving the approval or conditional approval of a
tentative map can also stay the life of a tentative map for up to five years. Unlike a
moratorium, however, the litigation stay must be approved by the city/county that approved
the tentative map. A developer may submit an application for a stay based on the
city/county’s adopted procedures, and the city/county must either stay the time
period for up to five years or deny the stay request within 40 days of receipt of the
developer’s application. A city/county may establish by ordinance the procedures for
reviewing such requests.
Upon application by a subdivider, a city/county may also extend the
life of a tentative map for a period of time not to exceed five years. The application for
such extension must be made prior to the expiration of the approved or conditionally
approved tentative map. Once an application for a discretionary extension is properly
made, the tentative map is automatically extended for 60 days or until the application for
extension is acted on by the city/county, whichever occurs first.
Government Code §66452.6(e) provides as follows regarding
discretionary extensions:
Upon application for an extension filed prior to the expiration of
the approved or conditionally approved tentative map, the time at which the map expires
pursuant to subdivision (a) may be extended by the legislative body or by an advisory
agency authorized to approve or conditionally approve tentative maps for a period or
periods not exceeding a total of five years. The period of extension specified in this
subdivision shall be in addition to the period of time provided in subdivision (a).
Determining the breadth of city/county discretion under this section
is, however, not instantly apparent.
While vesting tentative maps have certain Map Act provisions
regulating their extension (see discussion below), the Map Act provides no express
standard for the city/county approval or denial of a discretionary extension request for a
regular (non-vesting) tentative map. This is an area in which the need for a legislative
solution is long overdue. However, such actions are arguably subject to Code of Civil
Procedure §1094.5 (quasi-judicial) and are, therefore, subject to the substantial
evidence test, requiring the city/county to articulate and substantiate its reasons for
denial.
Government Code §66498.1(c) (regarding vesting tentative maps)
provides in pertinent part as follows: Notwithstanding subdivision (b) [only laws in place
at application completion may be applied to project], the local agency may condition or
deny a permit, approval, extension, or entitlement if it determines any of the following:
1. A failure to do so would place the residents of the subdivision or
the immediate community, or both, in a condition dangerous to their health or safety, or
both.
2. The condition or denial is required, in order to comply with state
or federal law.
In other words, §66498.1 disallows the denial of an extension or the
addition of new conditions of approval to an extension if the city/county could find that
either the failure to deny or condition the extension would place the residents of the
subdivision or the immediate community, or both, in a condition dangerous to their health
or safety, or that the condition or denial was required, in order to comply with state or
federal law.
As a further caveat, the ability to attach new conditions through the
granting of a discretionary extension is suspect.
California courts have reinterpreted the Map Act as prohibiting by a
city/county from unilateral imposition a new condition to an already approved tentative
map that the city/county agrees to extend. In El Patio v. Permanent Rent Control Board of
the City of Santa Monica, plaintiff’s existing tentative map for a condominium
conversion pre-dated a city amendment granting its rent control board the authority to
require permits for the removal of rent controlled units from the housing market.
When the plaintiff approached the city for an extension of plaintiff’s
tentative map, the city agreed but attached a condition requiring compliance with the new
city amendment. Plaintiff sued, claiming that the condition was not on the originally
approved tentative map and that the city could not add the condition to the tentative map
extension. The court agreed with the plaintiff and held that the Map Act prohibits new
conditions except conditions describing the length of the extension. The court reasoned
that to add new conditions to an approved tentative map would defeat the purpose of
Government Code §66473, which provides that a final map must be approved by the
city/county upon the satisfaction of conditions applicable only to the original tentative
map approval, not other conditions later attached.
In other words, the new intervening conditions would not be
enforceable; only the original conditions would need to be satisfied to secure the final
map.
Some city/county attorneys have argued that the language of
Government Code §66452.6(e) (upon an application by the subdivider to extend that map,
the map shall automatically be extended for 60 days or until the application for the
extension is approved, conditionally approved, or denied, whichever occurs first) provided
a legislative overruling of El Patio, and that a city/county could now impose conditions
on discretionary tentative map extensions.
There are several problems with this argument: 1) It fails to
recognize that El Patio’s holding hinged on §66473 (a final map must be approved by
the city/county upon the satisfaction of conditions applicable only to the original
tentative map approval), and §66473 was not deleted, amended or otherwise legislatively
overruled by the new Map Act language of §66452.6(e); 2) it fails to recognize that the
new language of §66452.6(e) was added to provide subdividers with protections by
providing a method of keeping tentative maps alive while their extension requests could be
scheduled for hearing; it was not intended to provide new conditioning powers to
cities/counties; and 3) approve, conditionally approve or deny is boilerplate Map Act
language and must be read in light of, and harmonized with, the other provisions of the
Map Act and the cases like El Patio, which does not allow new conditions except conditions
of time (i.e., the life of the extension itself).
Finally, a city/county cannot enact local legislation limiting
extensions that are otherwise allowed by the Map Act. In Griffis v. Mono County, the court
ruled that the county could not limit the ability of the applicant to seek the maximum
extension duration (currently up to five years) to a shorter time period than that allowed
by the Map Act.
Reflective of the downturn in the real estate market and the economy
as a whole in the early to mid-1990s, the California legislature enacted two unique
extensions. The first, Government Code §66452.11(a), provides that [t]he expiration date
of any tentative subdivision map or parcel map for which a tentative map has been approved
that has not expired on the date that the act that adds this section becomes effective
(Sept. 13, 1993) shall be extended by 24 months. It further states that the extension it
provides shall be in addition to any extension of the expiration date provided for in
§66452.6.
The second, Government Code §66452.13, contains nearly identical
language, except that it extends all approved unexpired tentative maps in existence on May
15, 1996, its effective date, by 12 months.
In sum, tentative maps in existence on the operative dates of these
acts received automatic extensions by these special legislative acts.
Generally, a subdivider will secure a tentative map covering all the
property to be subdivided and then will seek a single final map covering the entirety of
the area contained in that tentative map. In certain circumstances, however, the Map Act
not only allows the filing of a final map on only a portion of the area encompassed by the
tentative map, but the filing of that final map also extends the life of the remaining
portion of the tentative map. This process is generally referred to as filing multiple or
phased final maps.
A subdivider who wishes to file multiple final maps may do so prior
to the expiration of the tentative map by notifying the city/county of its intent to do so
either at the time the tentative map is filed or after filing of the tentative map. If the
subdivider notifies the city/county of his or her intent to file multiple final maps after
the filing of a tentative map, the city/county must concur in the filing of multiple final
maps. A city/county cannot require the subdivider to define the number or configuration of
proposed multiple final maps, but may impose reasonable conditions relating to the filing
of such maps. The city/county confirms the number of final maps that may be filed at the
time of tentative map approval. If a final map is filed on a portion of a tentative map,
it will not invalidate any part of the remaining tentative map.
The potential extension horsepower of multiple maps is set forth in
Government Code §66452.6(a), which provides in pertinent part:
[I]f the subdivider is required to expend one hundred twenty-five
thousand dollars ($125,000) or more to construct, improve or finance the construction of
public improvements outside the property boundaries of the tentative map, excluding
improvements of public rights-of-way which abut the boundary of the property to be
subdivided . . ., each filing of a final map . . . shall extend the expiration of the
approved or conditionally approved [remaining] tentative map by 36 months from the date of
its expiration, as provided in this section, or the date of the previously filed final
map, whichever is later. The extensions shall not extend the tentative map more than 10
years from its approval or conditional approval.
At the time the Map Act was authorized, the statutory threshold
amount for qualification of the automatic extension was $125,000. That figure has been
adjusted upward over time, according to a formula described in Government Code
§66452.6(a)(2). The statutory threshold amount is now approximately $163,000. The
relevant date for application of any adjustment of the off-site extension amount is the
date the application for the tentative map is received by the city/county.
To qualify for the automatic 36-month extension under the Map Act,
off-site expenditures must meet the threshold amount and must be used to construct,
improve or finance the construction or improvement of public improvements outside the
property boundaries of the tentative map, excluding improvements of public rights-of-way
that abut the boundary of the property to be subdivided.
A city/county may take the position that impact fees cannot be
counted against the statutory threshold amount because they are not being used to
construct, improve or finance the construction or improvement of public improvements
outside the property boundaries of the tentative map. In the opinion of this author,
however, if the purpose of the fees is to help fund the construction of improvements
outside the tentative map’s boundaries, then payment of the fee should count toward
the statutory threshold amount. This should include regional impact fees, city/county-wide
impact fees, capital facilities improvement fees, and the like. Attorneys should obtain
copies of the local ordinance creating the impact fee and scrutinize its terms closely.
For example, the cost to construct a perimeter bike path around a
subdivision might not be considered an off-site expense that would count toward the
$163,000 threshold because it abuts the property, unless it exceeds the needs of the
subdivision. On the other hand, the payment of impact fees imposed to help finance the
construction of a nearby freeway overpass would be included in the off-site calculation.
The conditions of approval of a tentative map may require payment of
impact fees, but the common practice is for the payment to be made at building permit
issuance or later, not at the final map approval stage. A city/county might argue that
because payment of a fee is not required prior to final map approval, the fee does not
count toward the $163,000 statutory threshold. In the opinion of this author, the impact
fee should qualify toward the statutory threshold amount, even if it is not required to be
paid until after final map approval for the following two reasons.
First, Government Code §66452.6(a) simply states that if the
subdivider is required to expend $125,000 (now approximately $163,000) or more for
off-site improvements, each filing of a final map extends the expiration of the vesting
tentative map by 36 months. The operative words from the statute are that a subdivider’s
tentative map qualifies for the automatic extension if the subdivider is required to
expend the threshold amount. Nowhere in the statute does it say that payment must be made
a condition of tentative map approval or that payment must occur prior to final map
approval. The statute does not link payment of the statutory amount to any entitlement
stage.
Second, Government Code §65961 sets forth what is commonly known as
the one-bite-of-the-apple rule. In essence, that statute requires the imposition of all
existing laws on a tentative map approval by setting a very high penalty for a city/county
if such laws are not made conditions to the tentative map approval: Upon approval or
conditional approval of a tentative map for a subdivision . . . a city . . . shall not
require as a condition to the issuance of any building permit any conditions that the city
or county could have lawfully imposed as a condition to the previously approved tentative
map. Note that this applies only to the subdivision of single- or multiple-family
residential units.
The prohibition against enforcement of an existing law not made a
condition to a tentative map works as follows:
 First, the condition must be one
that could have been legally imposed by the city/county at the time the tentative map was
approved.
Second, the city/county must
fail to impose the existing laws as a condition on the tentative map at the time of its
approval (the missed condition).
Third, the city/county must then
impose that missed condition as a condition to issuance of building permits during the
five-year period following recordation of the final map for the development.
When all of these elements are present, then Government Code §65961
prohibits the enforcement of the missed condition.
Thus, if a city/county prevails in its argument that the satisfaction
of a condition — although in existence at the time of the tentative map approval
— was in fact not made a condition to the tentative map, then the city/county will
not be able to enforce the condition at all. Govern-ment Code §65961 will prohibit
satisfaction of the condition at the building permit issuance stage. In other words, if a
city/county did not impose fees as a condition to tentative map approval, then it is
arguably barred from collecting such fees as part of building permit issuance.
The writers are from the San
Francisco offices of Allen, Matkins, Leck, Gamble & Mallory. Michael P. Durkee is a
partner, Tyson H. Powell an associate and Matthew D. Beinke is a law student clerk. |
