Deemed Approvals of Tentative Maps Based on Processing Delay

Deemed Approvals of Tentative Maps Based on Processing Delay

California Surveyor
Winter 2009  Issue # 157

ASK THE MAP ACT EXPERT

Question

I submitted a tentative map application to a city a few months ago and the city still has not acted on the map.  I believe there is a section in the Subdivision Map Act that requires a city to take action on a map within a certain amount of time or the map is “deemed approved.”  Is this correct?

Answer

Yes, IF, and only if, several key pre-requisites take place!  Having a map “deemed approved” due to processing delays by the local jurisdiction is not as simple as it may seem.

Map Act section 66452.4 provides as follows:

If no action is taken upon a tentative map by an advisory agency that is authorized by local ordinance to approve, conditionally approve, or disapprove the tentative map or by the legislative body within the time limits specified in this chapter or any authorized extension thereof, the tentative map as filed, shall be deemed to be approved, insofar as it complies with other applicable requirements of this division and any local ordinances, and it shall be the duty of the clerk of the legislative body to certify or state his or her approval.

However, Section 66452.4 is not the only applicable law.  Caselaw interpreting the Map Act likewise has established additional hurdles that must be cleared before a subdivision map will be deemed approved.

First, the tentative map must comply with three primary requirements:

(1)       The local jurisdiction must make an express finding that the tentative map is consistent with the local general plan.  (Youngblood v. Board of Supervisors, 22 Cal.3d 644 (1978).)

(2)       The local jurisdiction must have provided notice and an opportunity to take public testimony concerning the proposed tentative map.  (Horn v. County of Ventura, 24 Cal.3d 605 (1979).)

(3)       The local jurisdiction must comply with the California Environmental Quality Act (“CEQA”).  This means that the local jurisdiction must complete whatever environmental review may be required by CEQA for the tentative map, i.e., certify an EIR, approve a negative or mitigated negative declaration, or adopt an exemption.

Second, once those three requirements have been satisfied, the applicable Map Act timeline must expire.  The Map Act sets forth three different timelines:

(1)       If the local jurisdiction’s advisory agency has final decision-making authority over the map, then the advisory agency must act on the map within 50 days after the CEQA process is completed.  (Gov. Code § 66452.1(b).)  However, if this decision is appealed, up to 80 days could be added to the process (10 days to file an appeal, 30-60 days to schedule a hearing, and 10 more days to issue a decision).  (Gov. Code § 66452.5.)

(2)       If the advisory agency does not have final decision-making authority, but makes a recommendation to the legislative body, then the advisory agency must make its recommendation within 50 days after the CEQA process is completed.  (Gov. Code § 66452.1(a).)  The legislative body must then approve, conditionally approve, or disapprove the map within 30 days.  (Gov. Code § 66452.2(a).) of that recommendation.

(3)       If there is no advisory agency, the map must be submitted directly to the legislative body at its first regular meeting after the CEQA process is completed, and then the legislative body must approve, conditionally approve, or disapprove the map within 50 days after that meeting.  (Gov. Code § 66452.2(b).)

The California Attorney General has opined that if all of the requirements set forth above are satisfied, then the tentative map is deemed approved, and as such, the deemed approved map should be treated the same as a map actually approved by the city or county.  (81 Ops.Cal.Atty.Gen. 166 (1998).)

Yet, readers may wonder: “In reality, given all of these hurdles, what is the likelihood of a tentative map ever being ‘deemed’ approved by operation of law?”  Well, consider the following:  Suppose a local jurisdiction approves a specific plan for a project, as well as an EIR for that specific plan development.  Then suppose the developer subsequently applies for a tentative map, and the local planning commission, which is the decision-making authority for the map, holds a properly noticed public hearing “workshop” to discuss and consider the map.  The staff report for the planning commission hearing contains a determination that the tentative map is consistent with the general plan and with the specific plan, and explains that no additional CEQA work is needed given the recently certified EIR.  The “workshop” hearing is conducted, but no decision is reached.  A new hearing is set for further discussion at a date in the future.

In this situation, all of the pre-requisitews have been satisfied.  Therefore, if the planning commission does not make its decision within 50 days of the date that the EIR was certified, the tentative map will be “deemed approved” by operation of law!

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As the discussion above reveals, important hurdles must be cleared, but a deemed approval of a tentative could take place in the right circumstances!

Michael P. Durkee, a partner in the Walnut Creek office of Allen Matkins, represents developers, public agencies and interest groups in all aspects of land use law. Mike is the principal author of Map Act Navigator (1997-2010), and co-author of Ballot Box Navigator (Solano Press 2003), and Land-Use Initiatives and Referenda in California (Solano Press 1990, 1991).415.273.7455 mdurkee@allenmatkins.com

“Mike wishes to thank Tom Tunny, Senior Counsel at Allen Matkins, for his assistance in writing this article. “

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