A county may extend the life of a tentative subdivision map that has expired if the subdivider filed for an extension before the map expired, the First District Court of Appeal has ruled.

In a case from Bodega Bay in unincorporated Sonoma County, the court ruled that the Board of Supervisors had authority to approve an extension of a tentative map for a 70-lot subdivision even though the map had expired 29 days earlier. The developer had filed for an extension prior to the expiration and should not be penalized for the county's slow process, the court determined.

The battle over the 27-acre subdivision on Highway 1 has consumed more than a decade, and the project is now on its third developer. The county approved an environmental impact report, coastal permit and tentative map for the subdivision in late 1994. A group called Bodega Bay Concerned Citizens sued over the EIR and lost in the First District's 1997 unpublished ruling in Bodega Bay Concerned Citizens v. County Sonoma, No. A073252.

After that litigation concluded, the developer at the time, Bodega Bay Sunset Property, began to take steps to satisfy the tentative map's conditions. With the tentative map scheduled to expire on September 6, 2000, the developer filed an application for a one-year extension on August 1. Under the Subdivision Map Act, the application alone extended the life of the tentative map by 60 days, to November 6. However, the Board of Supervisors did not decide on the application until December 5, when the board approved a map extension to September 6, 2001.

Bodega Bay Concerned Citizens returned to court, contending that the map expired on November 6 and the developer would have to start over. After a delay because of bankruptcy proceedings, Sonoma County Superior Court Judge Lawrence Antolini ruled for the project opponents in early 2004. The developer appealed, and a unanimous three-judge panel of the First District, Division Three, overturned Judge Antolini.

At issue was an interpretation of one portion of the Subdivision Map Act, namely Government Code § 66452.6. Subdivision (e) states that after a subdivider files for an extension, “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.” Judge Antolini found that this “clearly is the provision governing the approval of a tentative map extension.”

In overturning Antolini, the appellate court pointed to subdivision (d), which states in part: “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.” Although Judge Antolini found that this provision applied to final maps rather than tentative maps, the First District ruled that subdivision (d) “authorizes the board to act on a 'timely filing' after expiration of a tentative map.”

Justice Stuart Pollak wrote for the court: “Considering the broad discretion that the board exercises in approving an initial map and in approving requests for extensions, it is difficult to discern a plausible rationale for depriving the board of authority to approve a timely filed application for an extension because the board itself failed to act within the 60-day automatic extension provided in subdivision (e).”

The court took note of 1986 amendments to the Subdivision Map Act that modified subdivision (d) and added subdivision (e). The legislative history “does confirm the underlying intention of the Legislature that subdividers not be penalized for the county's failure to act in a timely manner on applications under the act that are timely filed by the developer.”

Project opponents have asked the state Supreme Court to take up the case, said attorney Rose Zoia. Subdivision (d) applies to final maps and cannot be the basis for extending the life of an expired tentative map, she contended.

The Case:
Bodega Bay Concerned Citizens v. County of Sonoma, No. A105590, 05 C.D.O.S. 487, 2005 DJDAR 647. Filed January 14, 2005.
The Lawyers:
For Concerned Citizens: Rose Zoia, (707) 526-5894.
For the county: Neil Baker, assistant county counsel, (707) 565-2421.
For the developer: Judy Davidoff, Steefel, Levitt & Weiss, (415) 788-0900.