“Urgency” legislation to automatically extend the life of existing tentative maps, vesting tentative maps (“VTMs”) and parcel maps (so long as the map was valid on July 15, 2008, and would otherwise expire before January 1, 2011) for an additional year was approved by the Legislature and Governor on July 15th. The new law, SB 1185 (Lowenthal) (Stats. 2008, ch. 124), included urgency provisions so that it took effect immediately upon passage and signature by the Governor. This automatic extension is in addition to any other extension provided by the Subdivision Map Act or local ordinance. The bill also authorizes local governments to approve an additional year of discretionary extensions to the life of a tentative map, up to a total of six years (from the current five‑year limit).
Significantly, this legislation also extends the life of other existing state agency approvals that pertain to a development project included in a map extended by this bill. However, the legislation does not extend the life of local agency project approvals (other than tentative or parcel map approvals), and developers, lenders, and others therefore need to be careful that such local agency approvals or entitlements do not expire and render moot the benefits of the automatic tentative map extension.
Under existing state law, tentative maps ordinarily have a “life” of two years (three years in some local jurisdictions), within which time a developer must either fulfill the tentative map conditions of approval and file a final map, or obtain an extension through one of several means. In the case of Vesting Tentative Maps (“VTMs”) tentative map approval 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. The extension methods include a discretionary extension by the local jurisdiction (now up to six years), a moratorium-based extension, or a litigation-based exemption. In addition, 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. During the current economic cycle, work on many approved subdivisions in California has been suspended, and many tentative maps have been in danger of expiration, with resultant loss of subdivision rights and investments. This extension was provided in the Legislature’s recognition of the need to allow local governments to preserve development applications that might otherwise expire due to the prevailing adverse economic conditions in the construction industry, and reduce the risk of subjecting local governments and owners to the burdens of commencing the subdivision review and approval process all over again.
SB 1185 provides an automatic extension of these approved tentative maps and VTMs for one year (so long as the map or VTM was valid on July 15, 2008, and the map would otherwise expire before January 1, 2011). The Legislature has enacted similar interim map extensions in the past. This extension is less generous than the two-year automatic extension the Legislature provided during the real estate downturn in 1993 (SB 428), but more generous than the one-year legislative extension provided during the downturn in 1996 (AB 771), because of the additional year of discretionary extension authorized by SB 1185.
As previously noted, SB 1185 includes a one-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 one-year legislative 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.
Despite the apparent remedial and benign intent of SB 1185, there may be traps for the unwary relying upon this automatic extension to protect their existing entitlements. First, SB 1185 does not provide automatic legislative extension to project approvals which are local government approvals (other than VTMs, or tentative maps or parcel maps). Such critical local government approvals may include conditional use permits, site development permits, planned development permits and similar time-limited local approvals essential to development of the entire project. Many large-scale development projects require such local approvals in addition to subdivision map or VTM approval, and this one-year extension should not create a false sense of security. Although there may be some applicable exceptions for planned unit developments, 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.
Second, SB 1185 does not extend final subdivision maps, which remain subject to statutory expiration and loss of entitlements 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 entitlements achieved through the subdivision process.
Therefore, before celebrating the legislatively mandated “automatic” extension of tentative subdivision maps (or acting in reliance upon the new extension), it remains important to first ascertain whether the extension may be rendered moot due to the expiration of other local entitlements. To avoid confusion as to the true expiration date of all applicable project approvals, developers should consider sending a letter to public entities with jurisdiction over their projects confirming the effect of this legislation.
A copy of the chaptered legislation is available through our offices, or click here.