Vesting Tentative Map May Offer Protection Against Changes in Development Rules

​In the ever-changing legal landscape in San Francisco, we often receive inquiries concerning ways to determine which regulations will apply to a proposed development.  In the face of proposed changes to regulations, ordinances and fees that could have a dramatic impact on the viability of a proposed development, many property owners and developers want some level of certainty that the rules will not change on them in the middle of the development process.

One method to obtain a greater level of certainty concerning regulations that will apply to a project is through a Vesting Tentative Map (“VTM”).  A VTM is authorized under the California Subdivision Map Act (“Map Act”) (see Cal. Govt. Code 66498.1 – 66498.9) as well as the San Francisco Subdivision Code.  A VTM is intended to establish vested rights to proceed with a project in substantial compliance with the regulations in effect at the time the VTM application is determined to be complete by the local agency.  The lead local agency in San Francisco is the Department of Public Works (“DPW”).

Under the San Francisco Subdivision Code, all the requirements of a standard tentative subdivision map application are still required.  A VTM application must also include additional plans and information, such as floor plans, a parking plan, landscaping plans, as well as civil engineering plans for proposed street improvements, grading and utilities.  Importantly, a VTM application must also include all primary project approvals and entitlements (e.g. Planning Commission approvals) that will be required for the proposed project.

Once a VTM application is submitted to DPW and reviewed for sufficiency it will eventually be determined to be complete as of a certain date.  After processing of the completed VTM application has occurred and it has been reviewed and approved by various City agencies, the VTM will be approved by DPW.  Once the VTM is approved, it is only those local ordinances, polices and standards in effect on the date DPW determines the VTM application to be complete that may be applied to the development.  Thus, the primary operative date for the vested rights provided by a VTM is when the VTM application is determined to be complete.

A critical question is what rules are “in effect” as of the date the VTM application is determined to be complete, especially when faced with proposed changes to the rules that may impact a proposed project.  Generally, for an ordinance, policy or standard to be in effect at the time the VTM application was complete, the developer must have constructive notice of the rule, or the ordinance, policy or standard must have been in existence or stem from an existing rule, before the VTM application was determined to be complete.  This is largely a factual determination, depending on the circumstances.  The critical issues center around whether some official action was taken, and/or whether the timing and notice of the proposed new regulation was legally sufficient to put a developer on notice of the new rules.  Given the right facts and timing, the VTM would protect a developer from subsequently adopted regulations.

Under the Map Act, local agencies may also impose reasonable conditions on future permits and approvals.  What constitutes reasonable conditions is not clearly defined in the Map Act and may depend on the situation.  The rights vested by a VTM generally remain valid for two years, and may be subject to an extension.

While there are exceptions that may limit the rights vested by a VTM, a VTM can offer a developer a valuable benefit by locking in the laws and rules that will be applied to a development.  The security provided by an approved VTM should allow a developer to expend resources and incur liabilities with a reduced risk of the project being frustrated by subsequent local regulations.

Louis Sarmiento contributed to this Update.

The issues discussed in this update are not intended to be legal advice and no attorney-client relationship is established with the recipient.  Readers should consult with legal counsel before relying on any of the information contained herein.  Reuben, Junius & Rose, LLP is a full service real estate law firm.  We specialize in land use, development and entitlement law. We also provide a wide range of transactional services, including leasing, acquisitions and sales, formation of limited liability companies and other entities, lending/workout assistance, subdivision and condominium work.