Member Article

The Great Recession starting in 2007 hit many new housing developments hard – many having received all their discretionary entitlements (including tentative map approvals) did not proceed to construction, and remain on hold. After the recession hit, there arose a danger that a developer's previously approved subdivision map (tentative map) would expire before construction was started. As a result, the California Legislature took steps to automatically extend the life of approved tentative subdivision maps. The cumulative effect of these extensions led to an unprecedented subdivision map lifespan – the typical statutory life of tentative map subdivision approvals increased from two years to seven or more years. These extensions were generally automatic and had to be given. However, as of 2017, these automatic extensions are expiring for most projects. 

Developers will now be asking County Surveyors for extensions once again, but where the full number of automatic extensions has run, the County can grant or deny at its discretion. Those developers who are not able to obtain discretionary extensions will need to record subdivision maps soon or face the possibility of seeking project approvals on old subdivisions all over again.

In San Francisco, the lead agency (Public Works Department) has indicated it would recognize the life of a tentative map as being extended by the state legislation until (for many subdivision maps) the anniversary of the project's tentative map approval date, when such date occurs in the year 2017. That effectively means that many subdivision approvals in San Francisco that were obtained more than two years ago are set to expire this year. 

Of course a lead agency can grant discretionary extensions. Gov. Code Sec. 66452.6(e) allows the advisory body to extend maps for a period or periods not exceeding a total of six years. However, developers should be aware that local agencies are feeling increasing pressure from the state and local citizenry to construct and build residential housing that is affordable. Old subdivisions that are perceived to be dormant and stale may receive negative treatment by an agency being asked to grant a discretionary tentative map extension if they were approved without an affordable housing requirement (or with a lower level of affordable housing or a lower level of some other public benefit) than would be required for a residential development first approved today. If a developer was to be denied an extension, the developer would have to apply again for a tentative map approval, and would be subject to new laws in effect then, including laws that require on-site affordable housing for the first time, or at greater levels than previously required. We expect that agencies will be more receptive to extensions when a developer can demonstrate current and substantial progress to construct and build housing in the very near future. How to demonstrate that remains an issue.

Subdividers are advised to seek the advice of land use counsel well before the expiration of any tentative map. Because the Subdivision Map Act extensions were written at different times and have slight variations in wording, specific projects may be affected differently.

Paul Mabry, Esq. was a contributing author for this publication.