Subdivision Map Act’s procedural requirements for filing a lawsuit

Subdivision Map Act’s procedural requirements for filing a lawsuit

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Question

I have been working with a local jurisdiction on possible conditions of approval for my Tentative Map. Though we have been able to work out many of our disagreements, I am concerned that there may be some that we cannot work out and I might have to file a legal challenge. Can you tell me what kind of procedural steps are necessary in filing such a lawsuit, and are there any helpful tips you can provide?

Discussion

Thank you for your excellent and very important question. This may sound unusual coming from a lawyer, but no one likes a lawsuit. Nevertheless, at times, it becomes the only option. And if it does become necessary, then it is crucial to know the procedural requirements for filing your lawsuit. While these may seem at first to be minor details, not following them can result in your entire lawsuit being dismissed before the court ever considers the merits of your legal claims.

The first determination a subdivider must make before filing a lawsuit is the nature of the legal claim. Generally speaking, if the legal claim arises from a local agency decision concerning a subdivision, then the controlling law is the Subdivision Map Act, and the Map Act’s procedural requirements for filing a lawsuit would apply. However, a local agency’s actions concerning a subdivision map can implicate other statutes such as the Mitigation Fee Act, the Planning and Zoning Law, and the California Environmental Quality Act (CEQA). The importance of determining the controlling law correctly, and following its procedural requirements exactly is illustrated by the case of Fogarty v. City of Chico (2007) 148 Cal.App.4th 537.

The Fogarty lawsuit, successfully litigated by the author on behalf of the City of Chico, turned on a crucial mistake made by the subdivider: the subdivider filed its lawsuit within the Map Act’s 90-day statute of limitation (Gov. Code § 66499.37), but failed to serve the lawsuit, i.e., deliver a copy to the City and the Real Party in Interest, within the 90-day statute.

The dispute leading to the lawsuit arose when the Chico City Council approved the subdivider’s Tentative Map. As part of its approval, the Council reconfigured lots on the Map in order to reduce density, which the subdivider opposed. The subdivider brought a lawsuit challenging the Council’s decision under the Subdivision Map Act, but, as stated above, did not serve the lawsuit within the statute of limitations. The trial court held for the City.

Realizing its mistake, on appeal the subdivider amended the lawsuit to include a claim that the Council’s action was an “exaction” under the Mitigation Fee Act, which had a longer statute of limitations that the subdivider would have satisfied. Prior to filing a lawsuit under the Mitigation Fee Act, the challenger must provide the local agency with a written protest that explains the nature of the challenger’s claim within 90 days of the “imposition” of the challenged fee, dedication, reservation, or exaction.

This raises an important question of which readers should be aware: the meaning of “imposition” is not clear under the statute. Does the imposition occur when the local agency approves the Tentative Map and the condition of approval requiring the payment of a fee? Or does the imposition occur when the subdivider applies for a building permit and actually pays the fee? The safe answer is the former. Providing the written protest to the local agency within 90 days of the Tentative Map approval eliminates any risk that a later-in-time lawsuit would be dismissed for a failure to provide the written notice timely. Another strategy for eliminating this risk is for the subdivider and the local agency to agree on a condition of approval, as I discussed in my previous column, that establishes the date of “imposition.”

In any event, the lawsuit then must be filed and served on the local agency and any Real Parties in Interest within 180 days after the notice is served on the local agency. (Gov. Code § 66020(d).) In the Fogarty case, the subdivider arguably had served a written protest within the 90-day deadline, and had filed the lawsuit within the 180-day deadline.

However, the Court found that the challenged City action was not an exaction under the Mitigation Fee Act. The Mitigation Fee Act applies to “the imposition of any fees, dedications, reservations, or other exactions imposed on a development project.” (Gov. Code § 66020(a).) The common element to fees, dedications, reservations, and exactions is that the developer gives something tangible to the local agency. The City action challenged by the subdivider was not a requirement that the subdivider give something to the City, but rather a lot reconfiguration on a Tentative Map. Therefore, the Court held that the Subdivision Map Act, not the Mitigation Fee Act, applied, and dismissed the subdivider’s lawsuit for failure to serve the lawsuit within the Map Act’s 90-day statute of limitations.

The foregoing should make clear that filing a lawsuit after a local agency has made a decision concerning a subdivision map is complicated, and the different procedural requirements under controlling law must be strictly followed. If determining the applicable law is unclear, and the issue is not addressed in the local agency’s conditions of approval, then the safe strategy is to file and serve the lawsuit within the shortest applicable statute of limitations. Otherwise, as occurred in the Fogarty case, the lawsuit might be dismissed without any consideration of its merits.

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