By Leslie Z. Walker and William W. Abbott
This article discusses steps that can add life to existing tentative subdivision map approvals until such time as development opportunities improve.
1. Establish the expiration date. As obvious as it may sound, the expiration date of the tentative map is not always readily apparent. Developers often lack clear records of the approval date. The resolution of approval may not, on its face, state the period of validity. Because local codes may provide an initial approval period of between 24 and 36 months, research is required to establish the drop dead date. If in doubt, confirm the expiration date with the local agency in writing.
2. Extensions through discretionary extension. Government Code section 66452.6 subdivision (e) allows for discretionary extensions totaling up to five years. It is critical to apply for this extension before the map expires. The Subdivision Map Act does not recognize revival of a map, once expired. A timely request for a discretionary extension in and of itself extends the map for 60 days (or longer as may be necessary to process the extension request). Bodega Bay Concerned Citizens v. County of Sonoma (2005) 125 Cal.App.4th 1061.
3. Extensions resulting from moratoria. A moratorium imposed after the approval of the tentative map will trigger a tolling of the map for the period of the moratorium, up to five years. Government Code section 66452.6 subdivisions (b) and (f).
4. Extensions through a phased final map. Frequently misunderstood by many practitioners, if the subdivider is required to finance, construct, or improve offsite improvements in excess of a stated threshold ($178,000 as of January 1, 2004, subject to statutory adjustment), then the filing of each final map adds an additional three years to the life of the tentative map, to a maximum of 10 years from the date of the map’s approval or conditional approval. In contrast to the discretionary extension (paragraph 2 above), this benefit is self implementing, and is not dependent upon city or county consent. Government Code section 66452.6 subdivision (a).
5. Extensions through a development agreement. Uncapped by statute as to duration, a development agreement can be used to extend the life of the tentative map for the life of the development agreement. Government Code section 66452.6 subdivision (a)(1).
6. Extensions resulting from litigation. If a legal challenge to a tentative map approval is filed, the subdivider can seek to toll the life of the map during the period of the litigation, up to a maximum of five years. This approval is discretionary. Government Code section 664352.6 subdivision (c); Friends of Westhaven v. County of Humboldt (2003) 107 Cal.App.4th 878. In terms of practice, a subdivider should seek consent to an extension as soon as the lawsuit is filed.
7. Other considerations.
- Mix and Match. Legal authority exists for combining various extension strategies for maximum relief. The extension can be combined in any order. California Country Club Homes Association v. City of Los Angeles (1993) 18 Cal.App.4th 1425.
- Rules for Parcel Maps. In contrast to tentative subdivision maps, neither the off-site improvement rule (described in 4 above) nor the development agreement provisions (described in 5 above) explicitly provides for parcel maps. Government Code section 66453.5. Discretionary extensions and extensions resulting from moratoria and litigation, however are allowed, and are explicitly provided for in the Subdivision Map Act. Government Code section 66463.5 subdivisions. (c), (d), and (e).
- Whose responsibility is it to track map life? No clear answer here. The developer and representative who process the map (land surveyor, engineer, attorney), need to communicate with each other in writing as to who retains responsibility for tracking the life of the map. Those upon whom the task falls need to have an adequate calendaring system in place to accomplish this task in a timely manner.
Bill Abbott is a partner and Leslie Walker is an associate with Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.