A San Diego County resident has lost a lawsuit that sought to force a developer to improve a private road that serves a new subdivision.
The resident argued that under the Subdivision Map Act, San Diego County had to enforce its own laws that carry out the Map Act, including a code section addressing off-site road standards. But the Fourth District Court of Appeal ruled that the county had the authority to approve an exemption from those standards and had expressly exempted the subdivision.
In 1995, a developer sought approval of a tentative map for a 28-lot subdivision on 127 acres in the unincorporated northern San Diego County community of Bonsall. A private road, Via Maria Elena, provides access to the site. A neighboring property owner, Garner Anthony, contended that the developer should widen the private road and improve a bridge. But in November 1995, the county’s Planning and Environmental Review Board approved the tentative map without Anthony’s requested road improvements because the public works director had determined the road was satisfactory and because the proposed improvements were prohibitive due to excessive amounts of cut and fill that would be needed.
Anthony appealed the decision to the Planning Commission, arguing that Via Maria Elena was substandard, narrow and meandering, and that under San Diego County Code § 81.402, which concerns standards for private roads serving major subdivisions, the county must require the road to be improved to county standards for private streets. The Planning Commission denied the appeal, and no further appeal to the Board of Supervisors was filed.
Barratt American, Inc., acquired the project and sought approval of a final map. In January 2001, the Board of Supervisors approved the final map and a subdivision approval agreement, which was required to ensure Barratt completed all tentative map requirements. The subdivision approval agreement did not include improvements to Via Maria Elena.
Thirteen months later, Anthony sued the county and Barratt. San Diego County Superior Court Judge Lisa Guy-Schall ruled for Anthony and ordered Via Maria Elena to be improved to county standards for private streets. The county and Barratt appealed, and a unanimous three-judge panel of the Fourth District, Division One, overturned the lower court.
The appellate court first addressed the county and Barratt’s contention that Anthony could not pursue the lawsuit because he had filed it after the Subdivision Map Act’s 90-day statute of limitations and because he had failed to exhaust his administrative remedies with the Board of Supervisors. The Fourth District agreed but went on to consider the merits of the case anyway. The court did so because Anthony argued that his suit was not an attack on the project maps but was instead based on contract interpretation.
Anthony contended that the Subdivision Map Act incorporated local code, such as § 81.402, into the requirements imposed at the tentative map stage. The county could not waive the requirement at the tentative map stage, and the Board of Supervisors should have rejected the final map for failing to comply with the county code, he argued. The county and Barratt countered that the county could waive the conditions of § 81.402 when it was impossible or impracticable for a subdivider to comply — and that the county had expressly waived the requirement when it approved the tentative map. The court agreed with the county and Barratt.
"Read in context of the entire regulatory scheme (including Government Code § 66474.1), San Diego County Code § 81.402 does not create or support a mandatory duty to require the Via Maria Elena offsite road improvements, when a decision was made otherwise, through the proper channels. Accordingly, we must reject Anthony’s theory that the tentative map approval must be deemed to have included an implied condition of fulfillment of all existing separately imposed requirements of the San Diego County Code," Justice Richard Huffman wrote for the court. "[W]e cannot disregard the discretion conferred upon the county director of public works to make exceptions to the application of county standards."
Anthony argued that under Subdivision Map Act, the subdivision improvement agreement required compliance with local ordinances, including § 81.402. The county had an ongoing duty to comply with its own rules and regulations, including at the time of final map approval, he contended. But the court concluded that Anthony’s inference did not apply.
"We conclude the language of the subdivision improvement agreement does not support an interpretation that the parties intended to contravene the prior findings of the director of public works, as approved by the Planning Commission, that the Via Maria Elena offsite road improvements were not required to be accomplished by Barratt," Huffman wrote.
Moreover, the court held, the Board of Supervisors under the Subdivision Map Act could not add conditions to the final map that did not exist at the tentative map stage. "[A]pproval of the final map by the board is a ministerial duty, if all the tentative map conditions have been met," Huffman noted. "Anthony has failed to show that the requested offsite road improvements to Via Maria Elena were imposed expressly or impliedly as tentative or final map conditions of approval. The contrary is true."
The contractual and statutory rights to road improvements that Anthony sought did not exist, the court held.
Anthony v. Snyder, No. D041676, 04 C.D.O.S. 1950, 2004 DJDAR 2865. Filed March 4, 2004.
For Anthony: Arthur Wilcox, Feldhake, August and Roquemore, (619) 696-8788.
For the county: C. Ellen Pilsecker, county counsel’s office, (619) 531-6229.
For Barratt American: Jeffrey Chine, Luce, Forward, Hamilton & Scripps, (619) 236-1414.