A Subdivision Map Act provision that gives local government a maximum of 120 days to acquire an interest in land upon which a subdivider is obligated to build improvements applies only in cases where the improvements are a condition of final map approval, the Fifth District Court of Appeal has ruled.
A developer in the City of Clovis contended that such a narrow reading of Government Code §66462.5 would place an undue burden on the subdivider because a city could wait decades before acquiring off-site property, forcing the developer to bear a greater expense than originally contemplated. But the court held that if the off-site improvements are not a condition of final map approval, the local government and subdivider can set a time limit as part of a development agreement.
In February 1990, Clovis and landowner William Tatham Jr. signed a subdivision agreement that called for Tatham to extend Temperance Avenue from the project to Shaw Avenue, a major thoroughfare. The city approved a final map for Tatham later that same month. In October of 1990, the city signed an agreement with N.T. Hill, who had acquired Tatham's interest in the project. The contract had roughly the same conditions. The city approved a second final map for the other portion of the subdivision that same month. Hill developed the two housing tracts but never extended the road.
The city and Hill then sued each other for a variety of reasons based on the other side's alleged breach of contract, and they went through extensive legal contortions before arriving at the appellate court. The issue before the three-judge panel was narrow — the applicability of the 120-day requirement.
Hill argued that the requirement applied to any condition relating to off-site improvements when neither party holds sufficient title to the land. Thus, because Clovis did not acquire the property for the road extension within 120 days, Hill contended he was not obliged to complete the work.
Clovis countered that the 120-day limit applies only when a local body postpones or refuses approval of a final map because the off-site improvements have not been completed.
Upholding Fresno County Superior Court Judge Gary Austin, the Fifth District said Clovis was right. The court relied heavily on the legislative intent behind AB 3452 from 1982, which created the Subdivision Map Act provision in question.
"The concern which generated the enactment of §66462.5 is that a city or county could … [require] completion of all improvements before approval of the final map, even when completion is made impossible as a result of the local body's own failure to obtain sufficient title," Justice Timothy Buckley wrote for the unanimous court. The law was intended to prevent a local government from holding up development by delaying off-site property acquisition necessary for project completion.
Furthermore, the law specifically allows the local agency to require a subdivider to enter into a contract for completion of off-site improvements when the local agency acquires adequate interest in the land, Buckley noted.
In this case, there were two such agreements, but they contained no specific term for Clovis to acquire the land. If Clovis' delays had interfered with Hill's ability to execute his part of the contract, Hill could have sued to enforce the contract's conditions, the court added.
"[B]y limiting §66462.5 to those instances in which approval of the final map is refused, this court does not impose an unjust burden on subdividers, nor does it create unreasonable consequences inconsistent with the legislative purpose," Buckley wrote. "Indeed, by refusing to expand §66462.5 as appellants [Hill] advocate, the court will leave a carefully balanced legislative scheme intact."
N.T. Hill v. City of Clovis, No. F032045, 00 C.D.O.S. 3321, 2000 Daily Journal 4563, filed April 28, 2000.
For Hill: Barbara McAuliffe, Motschiedler, Michaelides & Wishon, (559) 439-4000.
For Clovis: Jerome Behrens, Lozano, Smith, Smith, Woliver & Behrens, (559) 431-5600.