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I. INTRODUCTION

On January 23, 2004, the Sonoma County Superior Court ruled in Bodega Bay Concerned Citizens v. County of Sonoma (Case No. SCV-226218) ("Bodega Bay ") that Government Code Section 66452.6(e) of California's Subdivision Map Act (the "Statute") imposes a 60-day deadline for local agencies to act on a developer's request for an extension of a tentative map, after which it automatically and irrevocably expires — leaving the developer with no recourse.

The Bodega Bay case illustrates the draconian consequences of the court's statutory interpretation. The proposed project is a residential development known as Harbor View (the "Project") that contemplates construction of 70 single-family residential homes and 14 affordable multi-family residential units located on 27.10 acres of coastal property in Bodega Bay, California . The developer spent millions of dollars obtaining entitlements and satisfying more than 100 conditions of approval. It then filed a timely request for an extension of the tentative map in order to complete the final conditions. The county approved this request. A neighborhood group subsequently sued the county, seeking to invalidate its approval of the extension request as untimely. After protracted litigation, the court granted the neighbors' petition for writ of mandate, invalidating the tentative map. Thus, through no fault of its own, the developer suffered the forfeiture of its substantial investment in the tentative map. Worse still, the court ruled that the developer has no administrative remedy or other recourse. Today, at the Project site, all of the improvements are in place, including roads, curbs and sewers. The Project, however, remains at a standstill.

II. BODEGA BAY OVERVIEW

On December 6, 1994, the county adopted a resolution certifying an Environmental Impact Report ("EIR"), approving a coastal permit and tentative map for the Project. Because the EIR was subsequently challenged, involving lengthy litigation, the life of the Project's tentative map was extended to September 6, 2000. The developer invested heavily in the Project to obtain entitlements and to comply with the county's more than 100 conditions of approval. In August 2000, the developer filed a timely request for an extension of the tentative map in order to complete the final conditions for approval. On December 5, 2000, the County granted the request, extending the tentative map to September 6, 2001.

But on February 16, 2001, a neighborhood group filed an action in the Sonoma County Superior Court challenging the timeliness of the county's resolution extending the life of the tentative map. On April 1, 2003, the court overruled the developer's demurrer, but in so doing hinted in its ruling that the developer retained an administrative remedy in the form of an appeal to the County's Board of Supervisors. Thus, on April 3, 2003, the developer filed an appeal with the county's Board of Supervisors, seeking to reverse the county's earlier, unintended effective "denial" of its extension request. On June 3, 2003, the county granted the developer's appeal, thereby "reinstating" and extending the developer's tentative map to September 6, 2003.

But on June 26, 2003, the court invalidated the county's June 3, 2003 decision granting the developer's appeal by ruling that the developer's tentative map automatically and irrevocably expired, in November 2000, at the moment the 60-day period expired with no decision from the county. On January 23, 2004, the court granted the neighbors' petition for writ of mandate, thereby invalidating the developer's tentative map.

III. THE COURT'S RULING

A brief explanation of the mechanics of California 's Subdivision Map Act is useful in order to comprehend the unprecedented nature and ramifications of the court's ruling. The Subdivision Map Act ¹ establishes general criteria for land development planning in the creation of subdivisions throughout the state. Cities and counties are given authority under the Act to regulate the design and improvement of divisions of land in their areas through a process of approving subdivision maps required to be filed by each subdivider.²

A "tentative map" and a "final map" are required for the creation of five or more parcels. ³ A subdivider must obtain approval of the appropriate map before the subdivided parcels are offered for sale, lease, or are financed.⁴ "[A] tentative map shall be filed with the clerk of the advisory agency..."⁵ and if the advisory agency is authorized by local ordinance to approve, conditionally approve, or disapprove the tentative map, it is to take that action within 50 days after the filing of the map with its clerk and report its action to the subdivider.⁶ section 66452.5 of the Statute expressly authorizes the subdivider, among others, to seek administrative review of tentative map determinations.⁷

The California Legislature has mandated that certain findings be made by the city or county with respect to tentative map determinations, including: (1) general and specific plan consistency; (2) suitable site; (3) environmental concerns; (4) public health concerns; and, (5) public easements. ⁸ The approval, conditional approval, or disapproval of a tentative map constitutes a "quasijudicial act" (also termed an "adjudicatory decision"), for which the California Constitution requires (1) notice to affected parties, (2) an opportunity to be heard at an administrative hearing, (3) appropriate findings made by the administrative body, and (4) judicial review of the administrative decision.⁹

"The approval of a final map is a ministerial function once the tentative map has been approved or the conditions fulfilled with respect to a conditionally approved tentative map." ¹⁰ As long as the final map is in substantial compliance with the tentative map, the legislative body is not to deny approval of a final map.¹¹ This same limited discretion applies with respect to cities' and counties' assertion of authority in deciding whether and upon what conditions to extend the life of tentative maps. The Subdivision Map Act mandates an initial two-year life for a tentative map, which the local agency can extend up to an additional 12 months.¹² Beyond this, upon application by the subdivider, the city or county has the discretionary authority to extend the life of the tentative map for periods not to exceed a total of five years.¹³

The central issue in Bodega Bay concerned the appropriate interpretation of cities' and counties' discretionary authority to extend the life of tentative maps under section 66452.6(e) of the Statute, which states as follows:

(e) Upon application of the subdivider 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 group 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 by subdivision (a). Prior to the expiration of an approved or conditionally approved tentative map, 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. If the advisory agency denies a subdivider's application for an extension, the subdivider may appeal to the legislative body within 15 days after the advisory agency has denied the extension. (emphasis added).

The court interpreted this provision as imposing a 60-day deadline for local agencies to act on a developer's request to extend a tentative map, after which the map automatically and irrevocably expires by operation of law.

The court ruled that the statute expressly authorizes local agencies to take no action in response to an application to extend a tentative map — thereby allowing the tentative map to expire in what amounts to a "pocket veto." Moreover, the court ruled that the statute grants developers the right of appeal to the legislative body only where the local agency formally denies the developer's request for an extension. If the local agency takes no action whatsoever in response to the extension request, the tentative map irrevocably expires by operation of law after 60 days, leaving the developer with no right of appeal.

The court erred, however, in concluding that the statute precludes local agencies from extending the life of the tentative map after the date of its expiration. In fact, local agencies retain this discretionary authority to extend the tentative map even after it expires pursuant to section 66452.6(d) of the Statute. It is axiomatic that statutes are to be read as a whole and in context. ¹⁴ Subsection (d) provides as follows:

(d) The expiration of the approved or conditionally approved tentative map shall terminate all proceedings and no final map or parcel map of all or any portion of the real property included within the tentative map shall be filed with the legislative body without first processing a new tentative map. Once a timely filing is made, subsequent actions of the local agency, including, but not limited to, processing, approving, and recording, may lawfully occur after the date of expiration of the tentative map. Delivery to the county surveyor or city engineer shall be deemed a timely filing for purposes of this section. (emphasis added).

Thus, when properly read in context, the second sentence of subsection (e) provides for an automatic extension period of 60 days, during which time a developer may file a final map, unless the public entity first denies the extension application or imposes additional conditions for the approval of the extension. After the expiration of this automatic extension period, the public agency maintains discretionary authority to act on the tentative map even after its expiration. The second sentence of subsection (d) makes this clear:

Once a timely filing is made, subsequent actions of the local agency, including, but not limited to, processing, approving, and recording, may lawfully occur after the date of expiration of the tentative map. (emphasis added).

The neighborhood group in Bodega Bay argued that this provision pertains only to those circumstances where a developer has applied for a "new" tentative map, after expiration of the original tentative map. The superior court, however, rejected this argument in favor of its own equally unsupportable interpretation — which is that "subsection (d) applies to decisions regarding final tentative maps." ¹⁵

But the superior court's view that subsection (d) applies only to "final tentative maps" is illogical. Given the "ministerial" nature of decisions regarding whether to approve final maps, why would the Legislature have thought it necessary to expressly authorize cities and counties to take actions, including approval of final maps, after the developer had applied for and obtained a new tentative map? The court's interpretation suggests that, absent such express statutory authorization provided for in subsection (d), local agencies otherwise might question their authority to approve a final map following an approved new tentative map merely because the original tentative map expired. There is no basis in law or logic for such an assumption, and thus no reason to suggest that subsection (d) was drafted for this purpose. Additionally, the inclusion of the phrase "timely filing" in the second sentence of subsection (d) also is irreconcilably inconsistent with the superior court's interpretation. If subsection (d) applied only to the city or county's consideration of final maps following the approval of a new tentative map, what is the pending time deadline in such circumstances that would require this subsection to be modified by the phrase "timely filing"? These questions were presented to the superior court, but not addressed in its ruling.

IV. THE IMPLICATIONS OF THE COURT'S RULING

A. Long Term Projects Are Vulnerable to Political Changes in the Wind Because Approvals of Tentative Map Extension Requests Are No Longer Ministerial Functions

California courts have long recognized that "the approval of a final map is a ministerial function once the tentative map has been approved or the conditions fulfilled with respect to a conditionally approved tentative map."¹⁶ Likewise, it is well settled that local agencies' discretion in deciding whether to grant a developer's request to extend a tentative map is limited to conditions related to the length of time for the extension. The local agency may not impose new requirements as conditions for approval of an extension request.¹⁷ The ministerial nature of decisions to extend tentative maps and approve final maps under the Subdivision Map Act reflects the legislature's recognition of developers' substantial investment in a project that typically follows approval of a tentative map. The court of appeal in El Patio v. Permanent Rent Control Bd. of the City of Santa Monica , explained:

Once the tentative map is approved, the developer often must expend substantial sums to comply with the conditions attached to that approval. These expenditures will result in the construction of improvements consistent with the proposed subdivision, but often inconsistent with alternative uses of the land. Consequently, it is only fair to the developer and the public interest to require the governing body to render its discretionary decision whether and upon what conditions to approve the proposed subdivision when it acts on the tentative map. Approval of the final map thus becomes a ministerial act once the appropriate officials certify that it is in substantial compliance with the previously approved tentative map. ¹⁸

The court's ruling in Bodega Bay , however, turns this principle on its head by granting to cities and counties unlimited discretion to deny an extension request and derail a project by "pocket veto," after the developer's substantial compliance with the tentative map, for any reason, or no reason at all . As a result of this ruling, long-term projects are far more vulnerable to changes in the local political landscape. In fact, even where the majority of the legislative body remains in favor of the project, the court's ruling clears the way for a project to be killed by staff action (or rather, inaction), thus undoing the majority action of the legislative body.

B. Developers Can Suffer the Forfeiture of Their Substantial Property Interests Without Notice, an Opportunity for Hearing, or Right of Appeal

It is well settled that a local agency's decision in response to an application to extend a tentative map is adjudicatory in nature, involving "application of general standards of law to facts peculiar to the individual case." ¹⁹ Accordingly, in the context of such decisions, developers have a constitutional right to: (1) notice; (2) an opportunity to be heard at an administrative hearing; (3) appropriate findings made by the administrative body; and (4) judicial review of the administrative decision.²⁰

Yet, under the court's interpretation of the statute, local staffs are authorized effectively to deny an extension request by pocket veto through mere inaction, with no corresponding obligation to provide developers with notice, a hearing, findings, or judicial review. The court's ruling thus deprives developers of their rights in response to what amounts to the local agencies' adjudicatory decision.

Moreover, the court held that the statute's express grant of appeal to the legislative body is strictly limited to those circumstances where the local agency formally denies the extension request. Remarkably, according to the court's interpretation of the statute, if the local agency simply takes no action in response to the application to extend the tentative map, it simply automatically and irrevocably expires—leaving the developer stripped of its substantial property interest and with absolutely no right of appeal .²¹ It is highly unlikely that the legislature intended to grant developers a right of appeal in response to a formal denial, but not in response to a "pocket veto"—when the consequences to the developer are identical.

It goes without saying that local agencies seeking to derail a project will have little incentive to formally deny an application to extend the tentative map when they can simply allow the tentative map to expire automatically and thereby avoid the need to set forth findings or face an appeal.

Finally, adding insult to injury, a developer sensing an imminent "pocket veto" of its extension request most likely cannot seek emergency intervention and relief from the courts. Courts are authorized to issue writs of mandamus to compel local agencies to act only where the agency is failing to comply with its clear ministerial duties. ²² Under the court's interpretation of the statute, local agencies have no such ministerial obligation and need not take action in response to an extension request, but rather are expressly authorized to take no action.

In the wake of this ruling, opponents of development projects may inject new life into their cause by rushing to court in an effort to invalidate projects in those cases where the local agency granted tentative map extensions after the 60-day deadline. Because the court's interpretation runs counter to longstanding practice of the majority of California cities and counties, many projects throughout the state may be vulnerable to such a legal challenge. ²³

In the meantime, going forward, developers should employ the following precautions:

• Developers should avoid, where possible, the need to seek extensions on their tentative maps;
  
  
• Should it be necessary to obtain an extension on the tentative map, developers should be proactive with local officials to ensure that the application is scheduled for hearing well within the 60-day period;
  
  
• Should circumstances make it impossible for the local agency to rule on the extension request within the 60- day period, the developer should ensure that both the developer and the local agencies express in writing their "mutual consent" to extend the 60-day deadline pursuant to Government Code section 66451.1(a) ²⁴, which states that time limits in the act for reporting and acting on maps may be extended by "mutual consent" of the subdivider and legislative body;
  
  
• Developers should include in their development agreements with the city or county a provision obligating the local agency either to approve or to deny formally any applications to extend the tentative map within the 60-day period. The parties may wish to consider a provision in the development agreement expressly invoking "mutual consent" to extend the deadline provision of Section 66451.1(a) until such time as a decision is made on the developer's extension application. At least in this way, developers may ensure through contract a right of appeal that may not otherwise exist by statute.

V. CONCLUSION

The court's ruling in Bodega Bay is pending on appeal before the First District Court of Appeal. The appellate court is not expected to issue its ruling until near the end of this year. Should the superior court's ruling survive on appeal, a legislative solution may be required. In the meantime, developers should immediately take steps to protect against the draconian effect of this ruling—forfeiture of their tentative map without recourse.

ENDNOTES

1. Cal. Gov't. Code, §§ 66410-66499.37.

2. Cal. Gov't. Code, §66411; Santa Monica Pines, Ltd. v. Rent Control Bd. , 35 Cal. 3d 858, 869 (1984).

3. Cal. Gov't. Code, §§66426, 66428.

4. Cal. Gov't. Code, §§66499.30; 66499.31; Bright v. Board of Supervisors , 66 Cal. App. 3d 191, 193 (1977).

5. Cal. Gov't. Code, §66452(a).

6. Cal. Gov't. Code, §66452.1(b); Griffis v. County of Mono , 163 Cal. App. 3d 414, 424 (1985).

7. Administrative review typically is conducted by the "legislative body" or "governing body," which in the case of the County of Sonoma , refers to the Board of Supervisors. If the legislative body fails to act upon an appeal from the denial of a tentative map, insofar as it complies with applicable requirements of the Act and local ordinances, the tentative map is deemed approved or conditionally approved as last approved or conditionally approved. Cal. Gov't Code §66452.5(c).

8. Cal. Gov't. Code, §66474.

9. See Horn v. County of Ventura , 24 Cal. 3d 605, 612-616 (1979); Youngblood v. Board of Supervisors , 22 Cal. 3d 644, 651 (1978); Hayssen v. Board of Zoning Adjustments, 171 Cal. App. 3d 414, 426 (1985); see also Topanga Ass'n. for a Scenic Community v. County of Los Angeles, 11 Cal. 3d 506, 514-517 (1974).

10. 73 Ops. Cal. Atty. Gen. 340, n. 2 (1990) (citing Cal. Gov't. Code, §§ 66473, 66474.1); Youngblood, 22 Cal. 3d at 653; Great Western Sav. & Loan Assn. v. City of Los Angeles , 31 Cal. App. 3d 403, 411 (1973).

11. El Patio v. Permanent Rent Control Bd. of the City of Santa Monica , 110 Cal. App. 3d 915, 926 (1980).

12. Cal. Gov't. Code, §66452.6(a); (The life of a tentative map can be extended even further by the tolling provisions triggered by development moratoria or litigation.) Cal. Gov't. Code, §§ 66452.6(b), (c).

13. Cal. Gov't. Code, §66452.6(e).

14. People v. Carter , 48 Cal. App. 4th 1536, 1540 (1996) ("[W]e cannot read the words of a statute in isolation, ignoring their context.").

15. Bodega Bay Concerned Citizens v. County of Sonoma , No. SCV-226218 at 5 (Jan. 23, 2004). Presumably the superior court intended to refer to "final map" as the Subdivision Map Act makes no reference to a "final tentative map."

16. Youngblood, 22 Cal. 3d at 651; Great Western Savings , 31 Cal. App. 3d at 411.

17. See Daniel J. Curtin and C. Talbert, Curtin's California Land Use and Planning Law , 22nd ed., p. 86 (Solano Press Books, 2002) (citing El Patio v. Permanent Rent Control Board of the City of Santa Monica , 110 Cal. App. 3d 915, 926 (1980)).

18. El Patio , supra note 11.

19. Griffis v. County of Mono , 163 Cal. App. 3d 414, 424 (1985).

20. See cases cited supra at note 9.

21. Bodega Bay Concerned Citizens v. County of Sonoma , No. SCV-226218, at 6.

22. Cal. Civ. Proc. Code §§ 1085, 1086; see Venice Town Council v. City of Los Angeles , 47 Cal. App. 4th 1547, 1555 (1996) (holding that a writ will not lie to control discretion conferred upon a public officer or agency absent both a clear, present and usually ministerial duty upon the part of the respondent, and a clear, present and beneficial right in the petitioner to the performance of that duty); see also Transdyn/Cresci, JV v. City and County of San Francisco, 72 Cal. App. 4th 746 (1999).

23. Information derived from informal telephone surveys performed by counsel for the County of Sonoma .

24. Section 66451.1(a) states in relevant part: "Time limits specified in this chapter for reporting and acting on maps may be extended by mutual consent of the subdivider and the advisory agency or legislative body required to report or act [.]"

Judy V. Davidoff is a shareholder in the Real Estate Group at Steefel, Levitt & Weiss. Ms. Davidoff 's practice emphasizes land use, environmental, and development law. She is a member of the Board and President of CREW San Francisco , a substantive editor for the California Real Property Journal, and a member of CEB's Real Property Advisory Committee.

Arthur J. Friedman is a shareholder in the Litigation Group at Steefel, Levitt & Weiss. Mr. Friedman has diverse experience litigating CEQA/land use disputes, construction, contract disputes and insurance coverage. Mr. Friedman received his B.A. from Yale University and his J.D. from the University of Texas, Austin .

Jennifer Renk is an associate in the Real Estate Group at Steefel, Levitt & Weiss. Ms. Renk's practice focuses on land use and environmental law. Ms. Renk received her B.A. from Bryn Mawr College in Pennsylvania and her J.D. from the Santa Clara University School of Law. She is a member of CREW-San Francisco.

 

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