Senate Bill 1185: Legislature Puts Time on the Side of Tentative Subdivision and Parcel Maps, But Drafting Error May Trigger Follow-Up Legislation

By Leslie Z. Walker and William W. Abbott

The California Legislature borrowed a trick from California’s last economic downturn to assist struggling homebuilders. On July 15, 2008, Governor Schwarzenegger signed into law Senate Bill 1185 (Chapter 124, Statutes 2008), which, similar to previous legislation passed in the mid 1990's (Gov. Code, §§ 66452.11 and 66452.13) extends the life of approved tentative subdivision maps.

The law contains three operable provisions. First, it extends the life of certain maps by one year. Second, it extends the life of any state approval by one year. Third, it extends the total period for which discretionary extensions may be granted from five to six years.

I.          One Year Extension

Senate Bill 1185 extends the life of any tentative, vesting tentative, or parcel map for which a tentative or vesting tentative map has been approved, if the map has not expired as of July 15, 2008, but will expire before January 1, 2011. The law extends the life of these maps by one year. (Gov. Code, § 66463.5.)

Prior to the passage of Senate Bill 1185, the Subdivision Map Act (Gov. Code, § 66410 et seq.) provided that a tentative map expires two years after its approval or conditional approval. Local ordinances can lengthen that period for up to one additional year. (Gov. Code, § 66452.6.) The Map Act also provided that a subdivider could apply for, and a local agency can grant, a discretionary extension of up to five years. (Gov. Code, § 66452.6, subd. (e) & § 66463.5, subd. (c).) Therefore, depending on the jurisdiction, prior to the passage of Senate Bill 1185 a tentative map had an initial life of between two and three years with a potential discretionary extension of five years.  

The legislation addresses two categories of tentative maps: approved tentative maps without statutory extensions, and approved tentative maps operating with an extension. Application of the new law is straightforward in the first scenario, but not the latter.

            A.        Scenario 1: Maps Operative as of July 15, 2008 Without Any Extension

Senate Bill 1185 modifies the operative expiration date on selected tentative maps. If the tentative map was valid on July 15, 2008, and will expire prior to January 1, 2011, Senate Bill 1185 grants the tentative map an automatic one year extension. For a map with an initial two year approval period, the life of the map is extended by one year if the map was initially approved between July 16, 2006 and July 15, 2008. In jurisdictions granting tentative maps an initial three year life, the map must have been approved between July 16, 2005 and December 31, 2007 for the one year extension to apply. Maps approved after these dates fall under the old rule.

            B.        Scenario 2: Maps With Operative Extensions as of July 15, 2008

So, what about tentative maps under extension? This is where the law not only gets complicated, but contains a drafting error. Government code section 66452.21, subdivision (d) provides:

For purposes of this section, the determination of whether a tentative subdivision map or parcel map expires before January 1, 2011, shall count only those extensions of time pursuant to subdivision (e) of Section 66452.6 or subdivision (e) of Section 66463.5 approved on or before the date that the act that added this section became effective and any additional time in connection with the filing of a final map pursuant to subdivision (a) of Section 66452.6 for a map that was recorded on or before the date that the act that added this section became effective. The determination shall not include any development moratorium or litigation stay allowed or permitted by Section 66452.6 or 66463.5.

If a tentative subdivision map has an extension in place and in effect on July 15, 2008 which tolls the life of the map past January 1, 2011, and the extension was created either (a) by a discretionary extension (such as a five year discretionary extension) (Gov. Code, § 66452.6, subd. (e)) or (b) by virtue of the offsite improvement rule (Gov. Code, § 66452.6, subd. (a)) (See Time Waits for No Map: Strategies to Extend the Life of a Tentative Subdivision Map), the one year automatic extension benefit of Senate Bill 1185 does not apply.

In contrast, for tentative parcel maps, if a litigation stay (Gov. Code, § 66463.5, subd. (e)) or the offsite improvement rule (Gov. Code, § 66452.6, subd. (a)) extends the life of the map past January 1, 2011, the one year automatic extension benefit of Senate Bill 1185 does not apply. Unlike the tentative subdivision map, the time added to a parcel map by the grant of a discretionary extension does not apply. Because this section seems to contain an inconsistency as discussed below, we believe the intent of the section was altered by a drafting error. Most likely, the Legislature intended to except discretionary extensions and the offsite improvement rule for both tentative parcel maps and tentative subdivision maps.

The likely error in drafting is as follows. The language pertaining to the tentative parcel maps section contradicts itself providing that the calculation of time should both account for and not account for litigation stays. Consultation with the California Building Industry Association (“CBIA”) confirms that 66452.21, subdivision (d) should read: 

For purposes of this section, the determination of whether a tentative subdivision map or parcel map expires before January 1, 2011, shall count only those extensions of time pursuant to subdivision (e) of Section 66452.6 or subdivision (c) of Section 66463.5 approved on or before the date that the act that added this section became effective and any additional time in connection with the filing of a final map pursuant to subdivision (a) of Section 66452.6 for a map that was recorded on or before the date that the act that added this section became effective. The determination shall not include any development moratorium or litigation stay allowed or permitted by Section 66452.6 or 66463.5.

            C.        Summary of the One Year Extension Rule

As the law stands now, an approved tentative subdivision or parcel map, without any existing extension, is granted an automatic one year extension by Senate Bill 1185 if the map was approved prior to July 15, 2008 and will expire prior to January 1, 2011. For tentative subdivision maps, if by July 15, 2008 the map had an extension past January 1, 2011 by virtue of either a discretionary extension or the offsite improvement rule, then the one year automatic extension imposed by Senate Bill 1185 does not apply. If the life of the tentative subdivision map extends past January 1, 2011 due to a litigation stay or development moratorium, the map qualifies for the automatic extension. For a tentative parcel map, if by July 15, 2008 the map had an extension past January 1, 2011 by virtue of a litigation stay or the offsite improvement rule, then the one year extension does not apply. If the life extends past January 1, 2011 due to a development moratorium, then the map qualifies for the Senate Bill 1185 extension.

We think the legislative philosophy is as follows, if the holder of the map already has the benefit of a discretionary extension, or has already acquired the benefit of the three year extension under the offsite improvement rule, he or she does not need the benefit of an additional statutory extension.

II.        State Approvals

The law also provides that any legislative, administrative or other approval by any state agency that pertains to a development project whose tentative map life has been extended by Senate Bill 1185, is also extended for the same length of time. (Gov. Code, § 66452.21, subd. (c).) Developers are advised, however, that this only applies to state agency approvals. This means that developers must seek affirmative extensions of conditional use permits and the like, which expire on a date certain, either on the face of the permit or as specified by local ordinance.

III.       Discretionary Extension

Finally, the law extends by one additional year the total period for which a city or county may extend the life of the map. Prior to the passage of Senate Bill 1185, if a developer filed for an extension prior to the expiration of the tentative map, the legislative body or agency authorized to conditionally approve tentative maps could grant an extension for up to five years. After the passage of Senate Bill 1185, the total length of permissible discretionary extensions is now six years. (Gov. Code, § 66463.5, subd. (c).)

IV.       Considerations for Map Extensions

The following are the facts you need to assemble to determine if your tentative subdivision map is eligible for the one year extension:

  • When was your map originally approved?
  • Are you in a jurisdiction with a two or three year initial tentative subdivision or parcel map life?
  • Have you received any discretionary extensions? Do they extend the life of your map beyond January 1, 2011? (As Senate Bill 1185 is currently enacted, this inquiry does not pertain to tentative parcel maps.)
  • Do extensions by way of the offsite improvement rule extend your map beyond January 1, 2011?
  • Once you determine you are eligible for the extension, check to determine which local approvals require local discretionary extensions for related permits.
  •  Even if you are not eligible for the one year extension, you may be eligible for a discretionary extension. Make sure to apply before your map expires.

Bill Abbott is a partner with Abbott & Kindermann, LLP, and Leslie Walker is an associate with firm.  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.

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