September 30, 1988 - From the September, 1988 issue

Vest Your Construction Rights Without Breaking Ground

What is a vesting tentative map and why should you have one. C.W. Cook Co., Inc.

Vesting tentative maps are a tool for the builder to use which the State of California has required every city and county to recognize, thanks to the Building Industry Association. Each jurisdiction was to have its own vesting tentative map ordinance in place by January 1, 1987. A little over a year late, but the City of Los Angeles is about to adopt one of three separate proposed vesting tentative map ordinances, hopefully sometime in February. Hopefully, by the time this goes to press, it may already be law.

Vesting Tentative Maps, for those of you who are not familiar with them, are extremely advantageous from a construction rights protection standpoint; however, you can also expect additional controversy and tight screening of your project even though state law requires the same screening and process for either a vesting or a regular tentative map.

The City is presently taking the position that vesting tentative maps are only available for tract maps and not parcel maps, and that they apply only to residential projects. State law, as of January 1, 1988, also requires that vesting maps cover commercial and industrial projects as well. Debate lies with the Council and possibly the courts.

DEFINITION

VESTING TENTATIVE MAPS refer to maps which show the proposed design and improvements to be installed by the subdivider/developer on the subdivision and the existing conditions in and around it which are not necessarily based on an accurate detailed survey of the property, but which shall comply with the requirements of subdivision regulation or traditional laws applicable at the time. When the County/City approves or conditionally approves a vesting tentative map, the subdivider/developer is conferred a vested right to proceed with development or complete construction in accordance with the terms of the permit

HISTORY/BACKGROUND

INFORMATION

By law, the term "vesting rights" is used to designate a right which has become so fixed that it is not subject to being divested without the consent of the owner or taken away from him without just compensation. The vested rights doctrine as developed by the courts in California has been characterized by many as harsh in its application and deferential to the prerogative of local governments. Under this traditional vested rights, preliminary approvals and work expended pursuant to

these approvals, such as tentative map, conditional use permit or variance, do not confer immunity from subsequent changes in law as to the final project.

There are about eight (8) court cases cited in which the court upheld that any developer could not be regarded as having a vested right if it failed to meet and comply with the laws applicable at that time the building permit is issued. In the event that the property owner/developer constructed improvements in reliance upon an invalid building permit, he could be required to remove the structure even though the permit was regular on its face and the developer acted without knowledge of any defect in it. Even the reliance on approval obtained in accordance with the requirements of the county vests no rights if the rules and practices adopted by the county do not conform strictly with the requirements of the state law.

Until recently the vested rights formulation was articulated by the California Supreme Court in the case of AVCO Community Developers, Inc. vs. South Coast Regional Commission, ...that is a property owner has performed substantial work and incurred substantial liabilities in good faith reliance  upon a permit issued by government, he acquires a vested right to complete construction in accordance with the terms of the permit.

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 However, reliance on the principle that the building permit is obtained in good faith and in accordance with the laws in effect at that time is risky on the part of the developer/subdivider, since an agency's development policies may change even after final subdivision map or any other permit approval has been given. This is because there are no contracts concerning dedications that can deprive a legislative body of its rezoning power unless a property development agreement has been entered into.

Prior to the enactment of the vesting tentative map law, the only opportunity for a developer to obtain assurance that a project would not be thwarted by subsequent changes in local land use laws, such as the subsequent rezoning of the property, was by obtaining a property development agreement. This is a legislative act which is approved by an ordinance through referendum process. It is enforceable by any party notwithstanding any change in the general or specific plan, zoning, subdivision, or building regulation adopted by the city.

WHY VESTING TENTATIVE MAPS BECAME LAW

The courts have recognized the right of the property owner/developer to seek approval for development which does not completely conform to ordinances, policies, and standards. The City may grant approval for such development, but only to the extent that the deviation is authorized under applicable law.

In 1984, the State Legislature adopted the vesting tentative map statute as an additional means to give subdividers a statutory right to proceed with development in substantial compliance with the local ordinances at time the map application is complete, and to protect approved projects from subsequent changes in the ordinances, policies, and standards that apply to development if they were developed within required time periods. 

The intentions of the legislature in adopting this statute are: 1) to establish a procedure for the approval of tentative maps that provide certain vested rights to a subdivider; 2) to ensure that local requirements for the development of proposed subdivision are established accordingly when approving or conditionally approving a vesting tentative map; 3) that the private sector should be able to rely upon an approved vesting tentative map prior to expending resources and incurring liabilities without the risk of having the project halted by subsequent action of the approving local agency, provided the time period has been established and has not lapsed; 4) to ensure that local agencies have maximum discretion in the imposition of conditions on any approvals and as long as the discretion does not prohibit a subdivider from proceeding with the proposed development.

EXPIRATION PERIOD

This statute also provides that the development rights conferred by a vesting tentative map shall last for a period of one year beyond the recording of the final map or parcel map, plus a possible one year extension, after which time, the vested rights lapse. This means that prior to the expiration of the initial one year period and an additional one year extension, the subdivider shall have the final map approved by the legislative body or other entity authorized to grant approval. In the same manner, the vested right shall lapse if the final map is not recorded within the time limits.

APPLICATION

When the City/Advisory Agency requires the filing of a tentative map or a tentative land division for a development, the subdivider may instead file or submit a vesting tentative map in accordance with its provisions. It shall be filed in the same form, possess the same contents, shall be labeled conspicuously "Vesting Tentative Map," be processed in the same manner as a tentative map, including, but not limited to, criteria for rejection, dedications, and the imposition of conditions. Filing of a vesting tentative map is not, however, mandatory and is at the exclusive option of the subdivider.

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