by William W. Abbott

In 1990, Terry Parkin, obtained approval of a tentative parcel map for a four lot residential development located in Orange County. The map approval included 37 conditions, some of which pertained to site grading. Sixteen months later, the Board of Supervisors adopted the Foothill/Trabuco Specific Plan (“FTSP”). The FTSP approval included development regulations, and development and design guidelines. In regards to grading, the FTSP development requirements specified that no grading could be approved unless the County first approved a site development permit or use permit.

In 1992 Parkin sought a three-year extension. The County granted the request, amending the tentative map conditions at the same time, amending the grading requirements. The specific language stated “Prior to the issuance of a grading or building permit on each parcel, the developer shall obtain an approved site plan in accordance with the requirements set forth in the Foothill/Trabuco Specific Plan…” Either by operation of law or by request of the subdivider, the tentative parcel map was extended until August 22, 2000. In April of that year, Thomas Hafen purchased the property. In August, Hafen sought approval of a rough grading permit. Shortly thereafter, he sought approval of a site development permit (“SDP”). While the County processed the SDP, Hafen obtained approval and recorded his final parcel map.

Several months later, the County had not yet acted on the SDP request. Hafen now argued that as long as the rough grading substantially conformed to the original tentative map as stated in the original conditions of approval, there was no need for him to obtain a discretionary permit, and that in any event, the SDP applied to the parcels individually, and not as a condition precedent to a rough grading permit. Unable to resolve the issue with the County, Hafen filed suit, presenting to the trial and appellate court the issue of the relationship of later enacted zoning code requirements to earlier specific conditions of approval.

The trial court ruled in Thomas Hafen v. County of Orange (2005) 128 Cal.App.4th 133 for Hafen finding that the County had a ministerial duty to issue a grading permit to Hafen. In reversing the trial court, the appellate court reached the following conclusions:

The common law vesting rules require substantial good faith construction based upon a building permit. The exceptions to the common law rule include development agreements and vesting tentative maps. Neither exception applied to Hafen.

The adoption of the FTSP and related land development regulations created the new applicable development code for all development occurring within the boundaries of the FTSP.

The specific conditions of approval relating to grading requirements for individual parcels did not trump the broader requirements stated in the development code which required a SDP or CUP for any grading.

Government Code section 65961 (the “one bite-of-the-apple rule”) did not limit the developer’s duty to comply with the FTSP, as section 65961(c) expressly allows for conditions required to assure conformity to zoning regulations.

The developer’s downfall in Hafen really was one of waiting too long. California law poses numerous risks for those who wait. A vesting tentative map may have helped, but once Parkin sought to extend the tentative map, the County was arguably free to deny the tentative map or subject the approval to more current land use regulations. The word to the wise is that when purchasing a tentative map, one cannot rely solely on the enumerated conditions. There may be other more stringent requirements expressed in the city or county’s development code, thus due diligence requires a thorough knowledge of the full regulatory environment.

William W. Abbott is a partner with the law firm of Abbott & Kindermann, LLP in Sacramento. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann 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.