New legislation to automatically extend the life of currently existing tentative maps, vesting tentative maps and parcel maps for an additional 24 months has been approved. The new law, AB 208 (Fuentes) was signed by Governor Brown on July 15, 2011, and includes urgency provisions so that it goes into effect immediately. This bill adds new Government Code § 66452.23 to the Subdivision Map Act, and establishes an automatic statutory extension to the life of previously-approved tentative maps and parcel maps that had not expired as of July 15, 2011, and which would otherwise have expired prior to January 1, 2014. This new automatic statutory extension is in addition to any other extension provided by the Subdivision Map Act or local ordinance.
This bill reflects the Legislature's recognition that
California housing markets remain depressed, and that development
activities on hundreds of previously-approved subdivisions have
been suspended or have otherwise gone on hiatus. The California
Building Industry Association has estimated that such
approved-but-inactive subdivisions represent more than 300,000
housing units. This bill is similar to other map-extension
legislation approved in recent years as a result of the depressed
housing economy, including AB 333 (2009) providing a 2-year
extension through January 1, 2012, and SB 1185 (2008)
providing a one-year extension, and the Legislature has expressly
provided that these statutory map extensions are in addition to
prior extensions and are cumulative.
Automatic Extension of Other Project-Related Approvals?
This legislation also includes a two-year automatic extension to all project-related "legislative, administrative and other approvals by any state agency." As such, a project that qualifies for the tentative map extension also receives a statutory extension on any project-related coastal development permit, water quality certificate, Bay Conservation and Development Commission permit, or similar approval issued by a State agency. However, it does not expressly extend the life of local agency project approvals (other than tentative or parcel map approvals). This may create a potential trap for the unwary, since critical local agency development approvals (such as conditional use permits, site development permits, planned development permits, architectural or design reviews) may be inadvertently allowed to lapse in reliance on the automatic map extension. Many projects may need to seek discretionary extensions of their other local approvals in order to ensure that they receive the full benefit of this map extension.
The Life of Tentative Maps and Map Extensions:
Under existing state law, tentative maps – and the
rights to subdivide and develop conferred by such approved
tentative maps -- ordinarily have a "life" of two years
(three years in some local jurisdictions). Developers must either
fulfill the tentative map conditions of approval and file a final
map during that period, or obtain an extension before the
expiration of the tentative map. Approval of a "vesting
tentative map" (VTM) confers a vested legal right to subdivide
and develop in substantial conformance with approved project plans
and VTM conditions despite subsequent changes in local rules and
regulations during the life (or extended life) of the VTM.
Tentative map extensions may be obtained through other statutory
provisions (e.g., a moratorium-based extension, or a
litigation-based exemption) or may be sought by application for a
discretionary extension by the local jurisdiction (now up to six
years). Also, if a project has several phases, the life of the VTM
can also be automatically extended (three years per phase for a
combined total of ten years, including the original life of the
VTM) by timely recording a final map for the phases and making a
certain dollar amount of off-site public infrastructure
improvements. However, once an approved tentative map or VTM
expires, or can no longer be extended, the valuable rights
conferred by map approval may be lost, including previously vested
rights under a VTM, unless the developer is in position to obtain
final map approval and commence construction.
No Automatic Extension of Final Subdivision Maps:
The new legislation does not extend final
subdivision maps, which remain subject to statutory expiration and
loss of any vested rights protections under the existing provisions
of the Subdivision Map Act. Consequently, subdividers holding final
map approvals in danger of expiration must consider applying for
discretionary extensions of such approved final
maps, if available in the local jurisdiction, or consult with land
use counsel to explore other means of preserving and extending
approvals or vested rights achieved through the subdivision
process.
Shortening the Period of Final Map "Protection" Against New Conditions:
As in the previous automatic map extension legislation, this
bill includes amendments to Government Code § 65961. That
statute, the so-called one-bite-of-the-apple law, was enacted to
"protect" projects with approved final subdivision maps
against the imposition of new conditions of
building permit issuance for a period of time following final map
approval. Normally, the statute provides such protection against
the imposition of any new "conditions that the city or county
could have lawfully imposed" as conditions of tentative map
approval for a period of five years following
recordation of the final map or parcel map. This bill, however,
reduces the period of such protection to three
years for projects whose tentative subdivision maps are
extended by this new legislation, or by the 2009 legislation
(§ 66452.22) that provided an automatic 2-year tentative
map extension through January 1, 2012.
To avoid confusion as to the true expiration date of approved maps
and all applicable project approvals, developers should consider
confirming the effect of this legislation on their particular
projects with local agencies having jurisdiction over their
subdivisions.
A copy of the chaptered legislation is available through our
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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.