Suggested conditions of approval for maximizing and protecting your subdivision map

Suggested conditions of approval for maximizing and protecting your subdivision map

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ASK THE MAP ACT EXPERT

Question

I have applied for a tentative subdivision map with a local city and staff is now reviewing my application.  Can you suggest conditions of approval that I would want to ask for in order to maximize the value of my map and protect it as much as possible from future changes in laws and regulations?

Discussion

Excellent question!  As projects begin to come to life (hopefully!) in an uncertain market such as the current one, it is very important that subdividers and developers make sure they get the most that they can out of their Tentative Map conditions of approval.  This Ask the Map Act Expert column provides some important guidance concerning conditions of approval, as well as specific language that can be used in those conditions.

1.         Do not undo your vested rights! When approving a Tentative Map, local agencies may apply “only those ordinances, policies, and standards in effect at the date the local agency has determined that the [map] application is complete.”  (Gov. Code § 66474.2.)  Therefore, your conditions of approval should include a condition that states, in effect, the following:

This Tentative Map approval is granted subject to only those ordinances, policies, and standards in effect on _____________, 20__ [the date the map application was complete].

2.         Know the “one bite of the apple” rule!  During the during the five-year period following recordation of a Final Map or Parcel Map for a subdivision, a city or county may not require as a condition to the issuance of any building permit or equivalent permit for such single- or multiple-family residential units in the project, conformance with or the performance of any conditions that the city or county could have lawfully imposed as a condition to the previously approved Tentative or Parcel Map.  (Gov. Code § 65691.)  Also, the city or county may not withhold or refuse to issue a building permit or equivalent permit for failure to conform with or perform any conditions that the city or county could have lawfully imposed as a condition to the previously approved Tentative or Parcel Map.

In other words, the city or county gets only “one bite of the apple” (i.e., one opportunity to impose conditions of approval) when approving a Tentative Map and until five years after the recordation of a Final Map or Parcel Map.  This limitation against the city or county does not apply if a failure to do impose the condition would place the residents of the subdivision or of the immediate community, or both, in a condition perilous to their health or safety, or both; or if the condition is required in order to comply with state or federal law.

With the foregoing in mind, your conditions of approval should include a condition that states, in effect, the following:

During the during the five-year period following recordation of a Final Map [or Parcel Map] in connection with this Tentative Map approval, the City/County of ___________ may not require as a condition to the issuance of any building permit or equivalent permit for such single- or multiple-family residential units in this Project, conformance with or the performance of any conditions that the City/County of ___________ could have lawfully imposed as a condition to this Tentative Map.  Also, the City/County of ___________ may not withhold or refuse to issue a building permit or equivalent permit for this Project for failure to conform with or perform any conditions that the City/County of _______ could have lawfully imposed as a condition to this Tentative Map.  This Condition of Approval shall not apply if a failure to impose the later-in-time condition would place the residents of the subdivision or of the immediate community, or both, in a condition perilous to their health or safety, or both; or if the later-in-time condition is required in order to comply with state or federal law.

3.         Preserve your ability to challenge future fees or fee adjustments!  Sometimes, unlike the situation described above, a city or county seeks to apply a new fee or fee adjustment on your project; that is, a fee or fee adjustment that the city or county could did not know about at the time of the Tentative Map approval.  Subdividers and developers need to make sure that they preserve their right to legally challenge any such new fees or fee adjustments if and when the city or county seeks to impose them.  Therefore, your conditions of approval should include a condition that states, in effect, the following:

The Conditions of Approval set forth herein include certain fees, dedication requirements, reservation requirements, and other exactions (collectively “exactions”).  Certain of these exactions are currently known with specificity (e.g., the amount of certain existing impact fees), while others have not yet been determined by the City/County.  Additionally, while certain existing fees are currently known, their possible future adjustments are not.  Therefore, the following shall apply:

a.         For those exactions whose amount/scope can be determined today because the amount/scope is set forth in or can be determined from adopted City/County action, these Conditions of Approval shall constitute written notice of a statement of the amount of such exactions.  The developer is hereby further notified that the 90-day period within which it may protest these exactions pursuant to Government Code section 66020(a) shall begin upon the date the City Council/Board of Supervisors adopts the resolution approving the Tentative Map to which these conditions apply.  If the developer fails to file a protest within said 90-day period, the developer will be legally barred from later challenging such exactions.

b.         For those exactions whose amount/scope is set forth in or can be determined from adopted City/County action, but whose future adjustment is unknown, the developer is hereby notified that the 90-day period within which it may protest these adjusted exactions pursuant to Government Code section 66020(a) shall begin upon the date the City Council/Board of Supervisors adopts the adjustment of any such exactions.  If the developer fails to file a protest within said 90-day period, the developer will be legally barred from later challenging such exactions.

c.         For those exactions whose amount/scope cannot be determined today because the amount/scope is not currently set forth in or cannot be determined from adopted City/County action, the developer is hereby notified that the 90-day period in which it may protest such exactions pursuant to Government Code Section 66020(a) shall begin upon the date the City Council/Board of Supervisors adopts the exactions.  If the developer fails to file a protest within said 90-day period, the developer will be legally barred from later challenging such exactions.

The conditions of approval for a Tentative Map can make or break a project, and become even more important in these uncertain times.  Keeping in mind the foregoing when negotiating conditions of approval with a city or county will go a long way towards making sure those conditions are as helpful as possible for subdividers and developers/

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