September 2020 Update
In this September 2020 update, we added numerous cross-references to other CEB real property and public law titles that will enhance the value of this book and provided additional research resources for important topics discussed in the book.
The construction, financing, and leasing of “granny” or “in-law” units and second units in single-family and multiple-family residential zones are exempt from Map Act requirements. The Map Act was further amended in 2019 to require local ordinances authorizing junior accessory dwelling units in single-family residential zones to comply with standards in Govt C §65852.22, as explained in §2.25.
In City of Morgan Hill v Bushey (2018) 5 C5th 1068, 1090, the supreme court stated that a trial court has authority to consider whether a referendum could be invalidated when the city has the ability to amend the general plan “to conform the plan to the zoning designation that the referendum would leave in place.” In Denham LLC v City of Richmond (2019) 41 CA5th 340, 355, the court of appeal noted that this language in Bushey did not suggest that it would be improper “to consider a city’s ability to amend its general plan when fashioning a remedy for an initiative or referendum that creates an inconsistency within a general plan.” See §4.23.
Approval of a tentative subdivision map involves the authorization of an activity by a local agency that may cause a change in the environment, so it almost always qualifies as a project for purposes of CEQA. In Union of Medical Marijuana Patients, Inc. v City of San Diego (2019) 7 C5th 1171, 1193, the supreme court disagreed with a prior ruling by a court of appeal in a separate case that had interpreted Pub Res C §21080 and clarified that the approval of a tentative map is a CEQA project because, by its nature, it satisfies the requirements of Pub Res C §21065. See §4.33.
Under an executive order directing federal agencies to reconsider the narrower interpretation of “waters of the United States” under the decision in Rapanos v U.S. (2006) 547 US 715, 126 S Ct 2208, the EPA and the U.S. Army Corps of Engineers finalized a revised definition of “waters of the United States,” which was achieved in 2020 under a two-step process, described in §4.40.
Owners of property containing (or adjacent to) “waters of the United States” risk substantial criminal and civil penalties for activities causing a discharge of fill material into such waters without a permit. In Hawaii Wildlife Fund v County of Maui (2020) ___ US ___, 140 S Ct 1462, the United States Supreme Court held that federal permits are required for discharges to groundwater that will ultimately reach “waters of the United States” if the addition of the pollutants through groundwater is the functional equivalent of a direct discharge from the point source into navigable waters. See §4.40.
Under the Permit Streamlining Act (Govt C §§65920–65964), the local public agency has 30 calendar days after receiving a development permit application in which to inform the applicant in writing whether the application is complete and accepted for processing. If the agency considers the application to be incomplete, an amendment to Govt C §65943(a) requires the agency to provide an exhaustive list of items that were not complete, and the list must be limited to items that were on the agency’s submittal requirements checklist. In any subsequent review of the application determined to be incomplete, the local agency cannot request that the applicant provide any new information that was not stated in the initial list of items that were not complete. See §5.11.
In response to downturns in the economy or states of emergency, the California legislature has on nine occasions over time extended the life of tentative maps. A recent extension provides that a legislative body within the County of Butte may extend the life of a tentative map for up to 36 months if the map (1) was approved on or after January 1, 2006 and not later than March 31, 2019; (2) relates to construction of single or multifamily housing; and (3) had not expired before September 27, 2019. Govt C §66452.27. See §5.28.
Government Code §66452.26 was added effective January 1, 2019. It allows a legislative body to extend for up to 24 months the life of any tentative map, vesting tentative map, or parcel map that was approved on or after January 1, 2006, and not later than July 11, 2013, that relates to the construction of single or multifamily housing, and for which the expiration date was extended under Govt C §66452.25, and that has not expired on or before January 1, 2019. See §7.6.
A development agreement between a developer and a city can expressly reserve to the city the power to impose additional development or mitigation fees or to increase fees, as long as they are effective citywide (not specifically enacted to apply or be discriminately adverse to the developer) for project impacts that are not fully mitigated by existing fees or exactions at the time of the approval of the development agreement. In North Murrieta Community, LLC v City of Murrieta (2020) ___ CA5th ___, 2020 Cal App Lexis 496, for example, the court of appeal upheld the validity of an agreement entered into by the city and the developer extending the vesting tentative map, as well as reserving to the city the power to impose or increase such fees. See §§7.8, 7.21.
Government Code §65995(b) establishes the maximum amount of school fees (referred to as “Level 1” fees) that may be imposed on a development project. These amounts are subject to an inflation adjustment every 2 years under Govt C §65995(b)(3). As of 2020, the limits had increased to $4.08 per square foot of “assessable space” for residential construction and $0.66 per square foot of “chargeable covered and enclosed space” for commercial or industrial construction. The biennially increased limits are posted on the website of the Office of Public School Construction. See §8.16.
“Assessable space” means the square footage within the perimeter of a residential structure, not including any carport, covered or uncovered walkway, garage, overhang, patio, enclosed patio, detached accessory structure, or similar area. See 1901 First St. Owner, LLC v Tustin Unified Sch. Dist. (2018) 21 CA5th 1186 (held that assessable space also includes square footage of interior space outside individual apartment units, i.e., apartment complex’s interior common area). See §8.16.
If property being developed is subject to a Williamson Act contract, the local agency must deny a subdivision map if it finds that either (1) the resulting parcels following subdivision of the land would be too small to sustain agricultural use, or (2) the subdivision will result in residential development that is not incidental to the commercial agricultural use of the land. See Cleveland Nat’l Forest Found. v County of San Diego (2019) 37 CA5th 1021, cited in §9.31.