The life of a tentative map for a subdivision may be extended for up to five years if the map is subject to a local development moratorium, but the map does not live on if the moratorium continues for more than five years, the First District Court of Appeal has ruled.
The court determined that a subdivision map originally approved by the City of Half Moon in 1990, but caught up in an eight-year sewer connection moratorium, expired before action was taken to finalize the map. The court also rejected the developer’s arguments that because two different moratoriums were in effect, the map was eligible for two separate time extensions. The court further dismissed the developer’s attempt to keep the map alive administratively by filing, before the apparent expiration date, a final map that did not comply with tentative map conditions.
The developer, Ailanto Properties, filed in 1987 an application for a 228-lot vesting tentative map on 114 acres. Ailanto also sought planned unit development zoning. To offset some environmental concerns, the developer whittled the project to 216 lots. The Half Moon Bay City Council certified an environmental impact report and approved the tentative map and zoning in August 1990. One of the conditions of map approval was that Ailanto get a coastal development permit from the Coastal Commission.
At the time, Ailanto’s property was subject to a Coastside County Water District water service moratorium, which was lifted in March 1994 when the district secured a new water supply. This moratorium caused the Coastal Commission to return Ailanto’s application in 1991 for the lack of sufficient water rights.
Just at the time the Coastal Commission kicked back the application, the city adopted a sewer connection moratorium because the wastewater treatment plant needed expansion. The sewer moratorium lasted from March 1991 until March 1999. Thus, for three years, the project was subject to both a water moratorium and a sewer moratorium.
During the sewer moratorium, the authority for coastal development permits shifted from the Coastal Commission to Half Moon Bay, which had adopted a local coastal program. Only days before the sewer moratorium expired, the city approved Ailanto’s coastal development permit application but further reduced the project to 197 lots. The project still ended up before the Coastal Commission when opponents appealed the city’s permit approval. In February 2001, the Coastal Commission upheld the city’s decision but cut the size of the subdivision even more and required that Ailanto retire development rights on an equal number of substandard lots elsewhere in town. Ailanto then sued over those conditions in litigation that is pending separately.
In May 2001, Ailanto filed a phased final map with the city and provided supplemental material on August 6, 2001 — one day before the map, with moratorium-related and other extensions, apparently would expire. The city rejected the application because it did not comply with the tentative map conditions, specifically the requirement for a coastal development permit.
Before the city rejected the final map, though, Ailanto filed a lawsuit seeking a court declaration that the life of its tentative map had been extended for the entire eight years of the sewer moratorium, that the separate water moratorium also extended the map’s life, and that filing of the phased final map was enough to start a new 36-month extension.
Ailanto lost its moratorium arguments in San Mateo County Superior Court, but the court did rule that the developer’s delivery of the phased final map was adequate to trigger a 36-month extension of the vesting tentative map. Both sides appealed, and a unanimous three-judge panel of the First District ruled entirely for the city.
The moratorium debate centered on Government Code § 66452.6, a section of the Subdivision Map Act. Ailanto argued that the statute limits local moratoriums — not tentative map extensions — to five years. The court undertook a lengthy discussion of the legislative history and found that from 1977 to 1986 the statute clearly limited the time that a tentative map could be extended because of a moratorium. The Legislature has amended the law several times since, making the language a bit ambiguous but apparently never changing the intent regarding map extensions.
“In summary, the legislative history of § 66452.6 points us to the conclusion that the five-year limit in subdivision (b)(1) was intended by the Legislature to apply to the length of the moratorium-related tolling of the expiration of a tentative map and not to the duration of the development moratorium itself,” Justice Mark Simons wrote for the court.
Ailanto also argued that multiple moratorium extensions applied, and cited Native Sun/Lyon Communities v. City of Escondido, (1993) 15 Cal.App.4th 892 (see CP&DR Court Cases, June 1993). In that case, the court ruled that the city’s adoption of a growth management ordinance and delays in adopting a subarea facilities plan amounted to a moratorium that extended the life of a tentative map, even after a “friendly moratorium” had earlier prolonged the map.
Ailanto argued that Native Sun stood for the proposition that multiple moratoriums can extend the life of a tentative map by more than five years. But the First District rejected the argument, finding that “this issue was not addressed or even mentioned by the Native Sun court.”
The city’s appeal concerned a 36-month extension the Subdivision Map Act provides each time a phased final map is submitted before the tentative map expires. The city argued that Ailanto submitted a phased final map in a form that the city could not approve, meaning the tentative map did not qualify for an extension. Ailanto conceded it lacked the coastal permit required as a condition of tentative map approval, but the developer contended the statute did not require the filing of documents that are “approvable.”
Here, the court found § 66452.6, subdivisions (a) (1) and (d) unambiguous. The lack of a coastal development permit was a “significant deficiency” and “a map that does not conform to the approved or conditionally approved tentative map may not be filed for approval by the legislative body,” Simons wrote.
Despite the court’s ruling, the project is not dead. Two years ago, the city, Ailanto and the Coastal Commission entered into a settlement agreement which centers on approval of the coastal development permit, according to attorney Rick Jarvis, who represents Half Moon Bay. Working out that permit has been a slow process, for which the First District did not want to wait.
Project opponents filed a California Environmental Quality Act lawsuit over the settlement agreement, but a Superior Court dismissed the suit in 2005.
“The parties are still all behind the settlement agreement,” Jarvis said.
Ailanto Properties, Inc. v. City of Half Moon Bay, No. A098920, 06 C.D.O.S. 8214, 2006 DJDAR 11728. Filed August 30, 2006. Modified September 18 at 2006 DJDAR 12602.
For Ailanto: Robert Lanzone, Aaronson, Dickerson, Cohn & Lanzone, (650) 593-3117.
For the city: Rick Jarvis, Jarvis, Fay & Deporto, (510) 238-1400.