Opinion
F077815
06-25-2020
Nicholas HONCHARIW, as Trustee, etc., Plaintiff and Appellant, v. COUNTY OF STANISLAUS et al., Defendants and Respondents.
Nicholas Honchariw, Belvedere Tiburon, in pro. per., for Plaintiff and Appellant. Shute, Mihaly & Weinberger, Matthew D. Zinn, Aaron M. Stanton, San Francisco; John P. Doering, County Counsel, and Thomas E. Boze, Assistant County Counsel, for Defendants and Respondents.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of part III. of the Discussion.
Nicholas Honchariw, Belvedere Tiburon, in pro. per., for Plaintiff and Appellant.
Shute, Mihaly & Weinberger, Matthew D. Zinn, Aaron M. Stanton, San Francisco; John P. Doering, County Counsel, and Thomas E. Boze, Assistant County Counsel, for Defendants and Respondents.
OPINION
FRANSON, J. Plaintiff Nicholas Honchariw appeals from a judgment denying his petition for writ of mandate. In 2012, the Stanislaus County Board of Supervisors (Board) approved, subject to conditions, Honchariw's application for a vesting tentative map for a small subdivision he is attempting to develop. On appeal, he contends the trial court misinterpreted the conditions placed on the approved vesting tentative map. The court interpreted the conditions to require a fire suppression system, with functional fire hydrants to be in place, before the County of Stanislaus (County) would approve the final subdivision map.
In the published portion of this opinion, we address County's statute of limitations defense and conclude Honchariw's claims of misinterpretation are not barred by the 90-day period set forth in Government Code section 66499.37. A claim of misinterpretation is distinct from a claim challenging the validity of the condition of approval and the two types of claims accrue at different times. In the unpublished portion of this opinion, we set forth the legal principles that guide the interpretation of conditions of approval and apply those principles to determine the meaning of the conditions addressing water supply and fire suppression. Although we conclude County has misinterpreted the conditions of approval, we cannot set forth all the actions County must take under the proper interpretation because there remain unresolved questions of fact for which the record contains conflicting evidence. Consequently, on remand the trial court must resolve those questions before determining the final terms of the writ of mandate. At a minimum, however, the writ shall direct County and its officials to interpret the conditions of approval as set forth in this opinion.
All unlabeled statutory references are to the Government Code.
We therefore reverse the judgment and remand for further proceedings.
FACTS
Honchariw, in his capacity as trustee for the Honchariw Family Trust, proposed dividing a 33.7-acre parcel of land in the Knights Ferry area of Stanislaus County into eight residential lots and one undeveloped parcel. The proposed residential lots consist of four one-acre lots, three five-acre lots, and a half-acre lot. The half-acre lot contains a dwelling, obtains water service from the Knights Ferry Community Services District (KFCSD), and has a private septic tank. The parcel's eastern boundary is the Stanislaus River, its northern boundary is Cemetery Road, and its western and southwestern boundary is Frymire Road. The parcel was acquired by Reverend Iwan S. Honchariw in 1973 and placed in the Honchariw Family Trust in 1991, the year before he died. The beneficiaries of the trust are Reverend Honchariw's nieces and nephews. Honchariw has been the sole trustee since 1992 and is not a beneficiary of the trust. He intends to have the trust retain the riverfront portion of the property, which had been used by the extended family for decades as a retreat.
As part of his proposal to subdivide the 33.7-acre parcel, Honchariw submitted vesting tentative map application No. 2006-06 to County's planning commission in 2006. The planning commission denied Honchariw's application. He filed an administrative appeal and the Board voted to disapprove the application.
Honchariw filed a petition for writ of mandamus challenging the Board's decision. The superior court denied his petition. In November 2011, we reversed the superior court's judgment and ordered the court to issue a writ of mandate directing the Board to vacate its denial of Honchariw's vesting tentative map application, reconsider the application, and make certain determinations and findings in the event that it again denied the application. ( Honchariw v. County of Stanislaus (2011) 200 Cal.App.4th 1066, 1081–1082, 132 Cal.Rptr.3d 874.)
Subsequent disputes between County and Honchariw produced two other published opinions. (Honchariw v. County of Stanislaus (2015) 238 Cal.App.4th 1, 189 Cal.Rptr.3d 62 [inverse condemnation action barred by 90-day statute of limitations]; Honchariw v. County of Stanislaus (2013) 218 Cal.App.4th 1019, 160 Cal.Rptr.3d 609 [affirmed denial of attorney fees].)
The process of reconsidering Honchariw's application included County's planning and community development department preparing a May 15, 2012, action agenda summary for the Board. The action agenda summary stated a core issue was the source of water service for the four contiguous one-acre lots. These lots were within the boundaries of KFCSD. The summary stated the water source would be public water provided by KFCSD. County staff met with KFCSD to discuss KFCSD's ability to provide water and was told the water capacity to serve the four lots was available, but the necessary infrastructure to provide service was not in place. The action agenda summary stated:
"As such, any water connection provided by the KFCSD to the applicant's site, will require the applicant to install the necessary infrastructure to extend the KFCSD's water service. In a recent letter, dated May 3,
2012, the KFCSD indicated that the applicant will need to file a formal application with [KFCSD] to explore current conditions and determine the type of water system improvements needed, in order to provide water to the project site (see Attachment ‘8'). Conditions of Approval have been added to reflect [KFCSD's] application and water system connection requirements. If this project is approved, actual improvements and associated costs will be the sole responsibility of the applicant and will be required to be in place prior to recording the [vesting tentative map]."
The action agenda summary also addressed the fire-flow requirement previously included when Honchariw's application had been circulated in 2007 and 2008. It stated that a specific condition of approval had been removed from the revised conditions of approval and stated the Oakdale Irrigation District has been contacted and informed of staff's recommendation to remove the condition. In addition, the summary stated:
"The project in its present form, will be obtaining water for domestic use and fire protection from the KFCSD. Any fire flow requirements will be handled through the building permit process and
at the time of construction, as required under the California Fire Code."
The subject of fire hydrants and water supply was discussed at the Board's May 15, 2012, meeting. An excerpt from the transcript of that meeting includes the following exchange between a supervisor and the director of County's planning and community development department:
"SUPERVISOR DeMARTINI: Yes, Mr. Chairman, I just wanted to go back to this fire suppression, because I just went through that with our fire department, but ... looking at condition 40, its says fire hydrants shall be extended to serve any new structures in the parcels, and then stuff about how they can't be any further than a thousand feet from the fire hydrant. [¶] I mean, that's one of the conditions. [¶] And the question I had is does the [Knights Ferry] Community Service District have sufficient water? Because it's going to take a larger line for the fire hydrant.
"ANGELA FREITAS: If I may. [¶] Part of Condition of Approval No. 24 is that the applicant study both or work with [KFCSD] to study both domestic and fire suppression. [¶] So the ultimate designs of this project to move forward would require hydrants for fire suppression, and they would have to install a line that's adequate enough to supply those fire hydrants.
"SUPERVISOR DeMARTINI: I just want to be sure I understand this. These are fire hydrants that are coming from water—from [Knights Ferry] Community Service District, not from, say, buried tanks?
"ANGELA FREITAS: Correct.
"SUPERVISOR DeMARTINI: Okay. I take, then, that [Knights Ferry] Community Service District would be able to do that? [¶] If they had the line engineered, they would have sufficient water and pressure?
"ANGELA FREITAS: Correct. [¶] As Condition No. 24, they'll have to—they'll have to address that in the design."
A representative of KFCSD then addressed the Board, stating (1) the district had enough water to serve the residential demand and (2) the fire suppression would have to be engineered and would have to comply with federal, state and county regulations. In closing, the representative stated: "That has all yet to be determined. [¶] We have to get an application for this project and we have to have an investigation. We have to have it all engineered so we know exactly where we stand, before we can say yes or no. Thank you."
On May 16, 2012, Honchariw held a conference call with County's lead staffer on the application, assistant county counsel, and someone from County's department of public works. Honchariw's contemporaneous handwritten notes from the conference call included the following item: "(3) Fire Suppression—arises at bldg. permit stage.
On May 22, 2012, the Board approved Honchariw's vesting tentative map application No. 2006-06, subject to 42 conditions of approval. Condition Nos. 24, 25, 26 and 40 are relevant to this appeal and read as follows:
"24. Prior to recording the ‘Final’ Subdivision Map, the applicant shall contact the [KFCSD] and submit a written application to obtain water service (domestic & fire suppression) for all lots within the Community Services District boundaries, in accordance with all applicable KFCSD rules, regulations, standards, and ordinances, and shall cause all public improvements required by KFCSD to be completed and accepted for public use.
"25. Prior to recording the ‘Final’ Subdivision Map, water service provided by the Knights Ferry Community Services
District, shall be established, constructed, and operational for the four (4) proposed 1-Acre Lots, identified as being Lots No. 4-7 on the Tentative Subdivision Map, and the designated ‘Remainder’ parcel.
"26. If, at the time of approval of the final map, any public improvements required by a local agency, including without limitation the Knights Ferry Community Services District, have not been completed and accepted in accordance with standards established by the local agency by ordinance applicable at the time of the approval or conditional approval of the tentative map, the applicant shall enter into a Subdivision Improvement Agreement in compliance with Government Code § 66462. [¶] ... [¶]
"40. Fire hydrants shall be extended to serve any new structures, on parcels within the Community Services District boundaries, with no structure residing further than 1000 feet from a hydrant or as required by Knights Ferry Community Services District ordinance, whichever provides a higher level of fire protection."
Honchariw's opening brief contends he submitted a request for water service to KFCSD in accordance with condition No. 24 and secured a "will serve letter" dated January 22, 2016. His declaration states he "secured a conditional will serve letter and reached the outlines of an agreement with KFCSD for the water line extension, including primary and back-up booster pumps to supply water uphill to the 1-acre lots, together with a stainless steel pressurized storage tank to avoid or minimize drain upon the remainder of the system." Honchariw's declaration also stated KFCSD requested the booster pumps to be limited to 60 gallons per minute to avoid taxing the system.
In comparison, a May 5, 2017 e-mail from Honchariw mentioned a January 16, 2016 will serve letter and asserted a June 15, 2016 will serve letter referred to by the department of public works was a nullity. None of the three letters is included in the appellate record.
On the subject of new fire hydrants, KFCSD expressed concern that installing hydrants on the new waterline would be a representation that adequate fire protection was available. At the time, KFCSD's water plant was not capable of delivering fire protection flows to its existing system. Consequently, KFCSD stated hydrants must not be installed until it is able to modify its plant to provide fire protections flows. Honchariw's declaration stated KFCSD requested he install risers for future connections instead of installing hydrants. The risers would allow the hydrants to be bolted onto the system in the future. Honchariw asserts he reached an agreement with KFCSD for an engineered six-inch water line extension with a 60-gallon per minute booster pump (with back-up pump) and a pressurized 2,000-gallon storage tank.
Honchariw's declaration asserts he submitted a proposed final subdivision map to County in April 2016 and, soon thereafter, submitted plans and specifications prepared by his civil engineers in accordance with KFCSD's requests. In response, County's department of public works sent Honchariw's engineers a November 22, 2016 plan review letter stating it could not approve the proposed plans for the water system without further information about 14 items. Items 9 and 10 addressed the fire hydrants. Item 9 stated "the minimum size pipe used for the water mains shall have a nominal diameter of 8 inches. In addition, all water mains shall be sized to provide 1,000 gallons per minute fire flow from each of 2 adjacent fire hydrants flowing simultaneously to 20 [pounds per square inch] residual pressure." The item requested calculations showing the pressure and flow conditions were met. Item 10 stated "fire hydrants shall be fed from two directions unless specifically approved by the fire department" and requested a letter of approval from the fire department.
Based on the request for water mains with an 8-inch diameter, Honchariw's engineers ran calculations showing the main extension of that size would meet the pressure and flow requirements upon an upgrade of KFCSD's system. Because the lots formed a cul-de-sac, the engineers believed the lots qualified for an exemption to the requirement that hydrants be fed from two directions.
At a March 29, 2017 meeting with the department of public works, Honchariw was informed his proposed plans did not comply with the conditions of approval. The department expressed the view that development projects were required to meet the Fire Code flow and pressure standards for 1,000 gallons per minute with 20 pounds per square inch of residual pressure for a hypothetical design fire with a two-hour duration. Furthermore, the department interpreted the conditions of approval as requiring a fire suppression system based on functional fire hydrants or, alternatively, other fire suppression arrangements with the Stanislaus County Fire Marshall.
Honchariw contends the interpretation of the conditions of approval as requiring functional fire hydrants came at him out of the blue because KFCSD's substandard system could not supply the required flows. Under this interpretation, it was left to Honchariw to supply the required flows. Honchariw describes the fire suppression system now being required as overkill and municipal-sized, arguing the high, front-loaded cost of such a system is prohibitive and has brought the project to a halt.
Honchariw sought to meet with County employees to arrange an agreeable way to proceed. Honchariw and the department of public works exchanged correspondence in June and July of 2017. A July 6, 2017 e-mail from the department of public works addressed whether Honchariw had a will serve letter from KFCSD. The e-mail referred to a January 24, 2016 letter signed by Honchariw but not KFCSD and stated:
This letter might be the one Honchariw's opening brief states is dated January 22, 2016. (See fn. 3, ante. )
"This letter is not a Will Serve letter, it clearly states it serves to notify [Honchariw] of KFCSD's conditional intent to issue a ‘Will Serve Letter’. It appears to me that KFCSD issues a ‘conditional intent’ letter specifying what is required of a project in order to obtain a ‘Will Serve’ letter. The Developer indicates his agreement to the requirements via his signature on the ‘conditional intent’ letter. The actual ‘Will Serve’ letter is issued at a later date."
KFCSD's requirements for the subdivision project were addressed indirectly in a July 12, 2017 e-mail from counsel for KFCSD to the department of public works and Honchariw. The e-mail stated "the most recent draft of the Developer Agreement between KFCSD and Mr. Honchariw" was attached. The second numbered paragraph of the draft developer agreement stated: "KFCSD hereby accepts Developer's improvement plans for the water system prepared by Giuliani & Kull dated April 14, 2016, and submitted to Stanislaus County for review, subject to the changes required by Stanislaus County." The e-mail stated the agreement was not signed by KFCSD because "it was our understanding that Mr. Honchariw was still working with the County/Fire Marshall regarding the fire suppression system as KFCSD's water supply is not adequate to insure proper fire suppression as set forth in the draft Development Agreement."
Honchariw's July 17, 2017 e-mail to KFCSD's counsel and the department of public works asserted "the Developer Agreement is our agreement with KFCSD, which we put aside pending resolution of hydrants / fire suppression with the County." Honchariw stated he was "prepared to install hydrants now or simply stub them, as drawn, until permitting and construction." Honchariw set forth his interpretation of the conditions of approval, stating:
"We can defer installation without any modification or waiver of our Conditions. The hydrant requirement is not found in the KFCSD line extension requirements specified in Conditions #24 – 26, which require that the extension must be completed and operational before a final map can be recorded, but Condition #40, which simply requires that hydrants be ‘extended to serve new structures'.
"This dovetails with fire suppression requirements, including the fire flow requirements, which are tied to new structures. There are no structures now, and there will be no new structures until permitting and construction, well after recordation of the final map, possibly years. Some lots may never get structures, e.g., lots merged by a buyer. Hydrants can be installed as part and parcel of the determination of fire suppression measures upon permitting and construction."
The department of public works sent two e-mails on July 24, 2017, that disagreed with Honchariw's interpretation of the conditions of approval. The department reiterated its view that "the Conditions of Approval require the Developer to install a fire suppression system based on functional fire hydrants"—something the draft developer agreement did not require. The e-mail to Honchariw stated the department's staff would be happy to meet with Honchariw after submission of plans for a fire suppression system based on functional fire hydrants—that is, hydrants meeting the fire flows for volume and pressure required by the Fire Code. The e-mail also stated (1) KFCSD had been very clear in its correspondence that it could not supply fire flows directly from their current system and had no plans for system improvements to meet those flows; (2) it was up to Honchariw to solve the water supply problem in order to complete his subdivision; and (3) Honchariw could provide the necessary water from (a) a new well, (b) a surface water supply, or (c) a tank.
Each side remained steadfast in its position, with Honchariw contending a functional fire suppression system was not required for approval of a final map and, instead, could be built out as the lots were developed. Having reached an impasse with County, Honchariw turned to the courts.
PROCEEDINGS
On August 25, 2017, Honchariw filed a petition for writ of mandate and complaint for damages alleging County's demand for a fire suppression system with functional fire hydrants violated his vested rights. In November 2017, the trial court held a hearing on the petition. County argued common sense applied to an interpretation of the conditions of approval and common sense dictated that the water system and fire hydrants be functional, not ornamental. Honchariw argued that the plain and ordinary meaning of the wording of the conditions of approval should be applied. Under Honchariw's reading of the conditions of approval, a functional fire suppression system would be built out as the property was developed.
In February 2018, the trial court filed a proposed statement of decision denying the petition for a writ, the request for injunction, and the request for other relief. In March 2018, after submission of written responses to the proposed decision, the court issued a statement of decision denying the petition.
On May 22, 2018, the court issued a judgment in favor of County that denied the petition for writ of mandate and denied all relief sought in the complaint for declaratory relief and damages. Honchariw timely appealed.
DISCUSSION
I. OVERVIEW OF VESTING TENTATIVE MAPS
The Subdivision Map Act (§§ 66410–66499.38) requires local agencies, such as County, to regulate and control the design and improvement of subdivisions. (§ 66411.) The goal of local review and approval of proposed subdivisions is to " ‘control the design of subdivisions for the benefit of adjacent landowners, prospective purchasers and the public in general.’ " ( Gardner v. County of Sonoma (2003) 29 Cal.4th 990, 997, 129 Cal.Rptr.2d 869, 62 P.3d 103.) Specifically, the statute "seeks ‘to encourage and facilitate orderly community development, coordinate planning with the community pattern established by local authorities, and assure proper improvements are made, so that the area does not become an undue burden on the taxpayer.’ " ( Id. at pp. 997–998, 129 Cal.Rptr.2d 869, 62 P.3d 103.)
Other aspects of protecting prospective buyers are addressed in the Subdivided Lands Act (Bus. & Prof. Code, §§ 11000 –11200.) Generally, lots in a subdivision cannot be sold without providing the prospective buyer with a "public report" issued by the Bureau of Real Estate. (Bus. & Prof. Code, §§ 11010, subd. (a) ; see generally, 8 Miller & Starr, Cal. Real Estate (4th ed. 2019) Subdivision Offerings, Sales, and Leasing, §§ 29:13-29:32, pp. 29-56 to 29-112 [application and issuance of public reports].) "The purpose of the report is to provide accurate information to the purchaser or lessee so that he or she may make an informed decision regarding the transaction." (Id ., § 29:14, p. 29-58.) During oral argument, Honchariw acknowledged that the proposed subdivision was subject to the disclosure requirements of the Subdivided Lands Act.
Under the Subdivision Map Act, each local agency must enact an ordinance to regulate and control the initial design and improvements of all subdivisions where tentative and final maps are required by the statute. (§ 66411.) A tentative and final map is required for Honchariw's proposed subdivision because it creates five or more parcels. (§ 66426.) A tentative map shows "the design and improvement of a proposed subdivision and the existing conditions in and around it and need not be based on an accurate or detailed final survey of the property." (§ 66424.5, subd. (a).)
A subdivider may file a "vesting tentative map" whenever the Subdivision Map Act requires a tentative map. ( Bright Development v. City of Tracy (1993) 20 Cal.App.4th 783, 792, 24 Cal.Rptr.2d 618.) The vesting tentative map statute was enacted to "establish a procedure for the approval of tentative maps that will provide certain statutorily vested rights to a subdivider" (§ 66498.9, subd. (a)) and to "insure that local requirements governing the development of a proposed subdivision are established in accordance with Section 66498.1 when a local agency approves or conditionally approves a vesting tentative map." (§ 66498.9, subd. (b).) The Legislature declared that "[t]he 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 frustrated by subsequent action by the approving local agency ...." (§ 66498.9, subd. (b).) The vesting tentative map statute was "enacted in response to the erosion of the common law doctrine of vested rights." ( Bright, supra , at p. 793, 24 Cal.Rptr.2d 618.) Under the statute, when a local agency considers an application for a tentative map, it shall apply only those ordinances, policies and standards in effect when the vesting tentative map application is deemed complete, unless certain exceptions apply. (§ 66474.2, subd. (a); see Bright, supra , at p. 793, 24 Cal.Rptr.2d 618.) "When a local agency approves or conditionally approves a vesting tentative map, that approval shall confer a vested right to proceed with development in substantial compliance with the ordinances, policies, and standards described in Section 66474.2." (§ 66498.1, subd. (b).) The statute does not explicitly address how to interpret conditions of approval.
This statute is chapter 4.5 of the Subdivision Map Act and consists of sections 66498.1 through 66498.9. (See Stats. 1984, ch. 1113, § 8, pp. 3744–3746 [§§ 66498.1–66498.7]; Stats 1985, ch. 259, § 2, p. 1269 [§ 66498.8]; Stats. 1986, ch. 613, § 5, p. 2114 [§ 66498.9].)
"[A] final map shall be disapproved only for failure to meet or perform requirements or conditions which were applicable to the subdivision at the time of approval of the tentative map." (§ 66473.) A disapproval of a final map "shall be accompanied by a finding identifying the requirements or conditions which have not been met or performed." (§ 66473.)
II. STATUTE OF LIMITATIONS
County contends that, to the extent Honchariw is challenging the conditions of approval imposed in 2012, the challenge is barred by the statute of limitations. The statute of limitations in question is the 90-day period set forth in section 66499.37, which provides in part:
"Any action or proceeding to attack, review, set aside, void, or annul the decision of an advisory agency, appeal board, or legislative body concerning a subdivision, or of any of the proceedings, acts, or determinations taken, done, or made prior to the decision, or to determine the reasonableness, legality, or validity of any condition attached thereto, including, but not limited to, the approval of a tentative map or final map, shall not be maintained by any person unless the action or proceeding is commenced and service of summons effected within 90 days after the date of the decision. Thereafter all persons are barred from any action or proceeding or any defense of invalidity or unreasonableness of the decision or of the proceedings, acts, or determinations ...." ( § 66499.37.)
This provision covers lawsuits challenging a variety of decisions by the local agency and lawsuits "to determine the reasonableness, legality, or validity of any condition attached" to a decision about a subdivision. ( § 66499.37.) Here, Honchariw's main issue is not with the reasonableness, legality or validity of any of the conditions of approval adopted in May 2012. Instead, he contends the County has misinterpreted and misapplied the conditions of approval. The alleged misinterpretation and misapplication qualify, for purposes of the statute of limitations, as an "act[ ] or determination[ ] taken, done or made prior to the decision" of an agency "concerning a subdivision." ( § 66499.37.) More specifically, the interpretation of the conditions of approval set forth in the June and July 2017 correspondence of the department of public works is the act or determination being challenged in this lawsuit. Here, Honchariw filed his petition and complaint on Friday, August 25, 2017. As a result, the 90-day limitation period encompasses acts and determinations made on or after Saturday May 27, 2017. Thus, the petition challenging the interpretation of the conditions of approval set forth in correspondence exchanged in June and July 2017 was within the 90-day limitations period. As a result, we conclude Honchariw's petition was a timely challenge to the interpretation of the conditions of approval—a challenge that is distinct from a challenge to the validity of a condition of approval.
Stated another way, a claim challenging an agency's interpretation of a condition of approval does not "accrue" for purposes of the statute of limitations until it is clear what interpretation the agency has adopted and that the interpretation is the agency's final position—that is, further negotiations or attempts at clarification are unnecessary or would be futile. (See Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1191, 151 Cal.Rptr.3d 827, 292 P.3d 871 [generally, a limitation period runs from the moment a claim accrues, which is the occurrence of the last element of the cause of action].) Here, the County's final position was established in June or July 2017, rendering further negotiation or attempts at clarification unnecessary. Accordingly, the statute of limitations does not bar Honchariw's claims.
III. INTERPRETING THE CONDITIONS OF APPROVAL
See footnote *, ante .
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DISPOSITION
The judgment is reversed. The trial court is directed to vacate its statement of decision and, on remand, conduct further proceedings not inconsistent with this opinion and to determine the terms of the writ of mandate, which, at a minimum, shall require County and its officials to interpret the conditions of approval as set forth in this opinion.
Honchariw shall recover his costs on appeal.
WE CONCUR:
POOCHIGIAN, Acting P.J.
PEÑA, J.