Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BS103462, David P. Yaffe, Judge.
Overton, Lyman & Prince and Stephen L. Jones for Plaintiff and Appellant.
Alvarez-Glasman & Colvin and Scott E. Nichols for Defendant and Respondent.
ALDRICH, J.
INTRODUCTION
In this appeal, we consider whether Government Code section 66452.6, subdivision (d) of the Subdivision Map Act (§ 66410 et seq.) compels a city to process a subdivider’s final tract map where, although the final map was filed with the city engineer before the approved tentative tract map had expired, it did not conform to certain conditions contained in the tentative map.
Hereinafter, all statutory references are to the Government Code unless otherwise noted.
South Hills Homes Partnership (South Hills) appeals from the orders of the trial court that denied its two petitions for writ of mandate. (Code Civ. Proc., §§ 1085 & 1094.5.) The court ruled that (1) South Hills’ final tract map was not “timely filed” under section 66452.6, subdivision (d) so as to entitle South Hills to ministerial approval of that map after the tentative map expired, and (2) that the evidence supported the ruling of the City of West Covina (the City) denying South Hills’ application for extension of the tentative map on the ground South Hills had not acted diligently. South Hills’ appeal does not show reversible error. Accordingly, we affirm the trial court’s ruling.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Tract Maps and South Hills’ efforts to obtain an extension of the Tentative Map
The property at issue in this appeal is undeveloped land located at Inspiration Point in the City of West Covina. A larger area had been subdivided into 218 lots in 1981. South Hills obtained title to 37 of those lots and on January 29, 2002, it obtained approval of Tentative Tract Map No. 53667 (the Tentative Map) to re-subdivide its 37-lot property into 36 lots and convert a public street to a private, gated way.
The Tentative Map’s approval was subject to numerous conditions. Of particular relevance to this appeal, condition No. 5.m.x. (a) stated, “Prior to approval of the final map,” “A final grading plan showing existing and proposed elevations and drainage structures (and showing existing and proposed on-site and off-site improvements) shall be submitted to and approved by the Planning Department and the Building and Engineering Department.” Condition No. 5.m.x. (c) required: “An itemized cost estimate for all on-site and off-site improvements to be constructed (escaped buildings) shall be submitted to the Building and Engineering Department for approval. Based [on] the approved cost estimates, required fees shall be paid and improvement securities for all on-site and off-site improvements (except buildings) and 100 percent labor/material securities for all off-site improvements shall be posted prior to final approval of the plans” (condition No. 5.m.x. (c)). (Italics added.)
Once the Tentative Map expired, South Hills could not file a final map without first processing a new tentative map. (§§ 66452.6, subd. (a) & 66463.5, subd. (c).) South Hills’ Tentative Map was scheduled to expire on January 29, 2004, unless the subdivider requested and the City approved an extension of time (§ 66452.6, subd. (a)). South Hills received two 1-year extensions and so the Tentative Map was due to lapse on January 29, 2006. (§ 66452.6, subd. (e).)
On September 15, 2005, South Hills submitted its final tract map (Final Map) to the Los Angeles County surveyor to be checked for mathematical accuracy, survey analysis, title information, and compliance with the Subdivision Map Act. Simultaneously, South Hills submitted the Final Map to the City’s Engineering Department.
On January 5, 2006, 24 days before the Tentative Map was set to expire, South Hills submitted a request for a final extension of that map. The effect of this submission was to toll expiration of the Tentative Map for 60 days or until approval or denial of the extension request. (§ 66452.6, subd. (e).)
The County approved the Final Map on February 13, 2006, and forwarded it to the City’s Director of Public Works and Engineer.
On February 14, 2006, the City Planning Commission unanimously denied South Hills’ request for extension of the Tentative Map’s life despite its staff’s recommendation to the contrary. South Hills appealed the denial to the City Council on February 23, 2006. This appeal extended the Tentative Map until the City Council took action on the appeal. (See Griffis v. County of Mono (1985) 163 Cal.App.3d 414, 428, citing § 66452.5, subd. (c).)
On March 21, 2006, after a public hearing, the City Council denied South Hills’ request for extension of the Tentative Map on the grounds that “[t]he expiration of the tentative map is the result of lack of diligence by the applicant” and the “proposed revision” was not appropriate because it would divide the area by creating a gated community in the middle of a public neighborhood and the City would have no authority over maintenance of the street made private. Accordingly, the Tentative Map expired on March 21, 2006.
2. South Hills’ grading plans and fee payments and Final Map revisions
Meanwhile, with respect to meeting condition Nos. 5.m.x. (a) and 5.m.x. (c), South Hills filed a proposed grading plan (condition No. 5.m.x. (a)) with the City Engineer, as was verified in a letter sent by City Engineer Miguel Hernandez to South Hills on January 20, 2006, nine days before the original expiration date of the Tentative Map. In late January, South Hills submitted a second revision of the Final Map to the Department of Public Works.
On February 24, 2006, South Hills submitted final grading plans to the City Engineering Division. One of the City’s civil engineers, Oscar Caplin, reviewed the grading plans that day. On March 2, 2006, 19 days before the Tentative Map expired, Caplin, notified South Hills that the final grading plans “needed to be completely redone.”
On March 20, 2006, South Hills submitted three sets of revised, finished grading plans along with a street-light plan. City Engineer Caplin and his supervisor reviewed the revised grading plans and returned them to South Hills on March 29, 2006, because the plans again did not meet the City’s standards and needed further revision. As a result, at no time before March 21, 2006, when the Tentative Map expired, did South Hills submit to the City an adequate final grading plan, which had been approved by the Engineering Department or the Planning Department, as required by condition No. 5.m.x. (a) of the Tentative Map.
Also, South Hills did not receive approval of or post estimated fees and securities before termination of the Tentative Map (condition No. 5.m.x. (c)). Although South Hills submitted its grading cost estimates to the City on March 1, 2006, and a revised cost estimate on March 20, 2006, Shannon Yauchzee, head of the City’s Public Works Department, confirmed that “At no time on or before March 21, 2006 did South Hills . . . submit to and obtain the approval of the Public Works Department of an acceptable cost estimate for on-site and off-site improvements” nor did South Hills pay the required fees by that date. Therefore, the proposed Final Map never satisfied condition No. 5.m.x. (a) or 5.m.x. (c) at the time South Hills submitted it to the City Engineer in September 2005, or at any time before March 21, 2006.
On May 1, 2006, the Planning Director wrote to South Hills to report that the City would no longer continue to review the Final Map because the Tentative Map had expired.
3. The procedural setting
South Hills’ writ petitions ensued. In its petition for ordinary mandamus (Code Civ. Proc., § 1085), South Hills sought to compel the City to review the Final Map. South Hills alleged that its submission to the City Engineer of the Final Map in September 2005 constituted a “timely filing” under section 66452.6, subdivision (d), with the result that the City was required to complete its ministerial review of that map, even if the Tentative Map had expired.
South Hills also sought a writ of administrative mandamus (Code Civ. Proc., § 1094.5) to challenge the City’s refusal to extend the life of the Tentative Map. South Hills alleged that the City’s decision was an abuse of discretion because (1) there was no evidence to support it, (2) the City failed to proceed in the manner required by law because it considered the merits of the subdivision rather than whether an extension was proper, and (3) the City made no findings or conclusions to support its decision. Finally, South Hills alleged that the City’s action constituted a temporary regulatory taking, for which South Hills requested just compensation.
The trial court denied South Hills’ writ petitions. Pursuant to Code of Civil Procedure section 1085, the court ruled that South Hills’ Final Map was not a “timely filing” under section 66452.6, subdivision (d), where it had not met the conditions imposed by the Tentative Map, and so the City did not have a ministerial duty to continue processing the Final Map. The court denied South Hills’ petition for writ of administrative mandate (Code Civ. Proc., § 1094.5) ruling that in exercising its discretion upon an application for extension of a tentative map, the City could consider changes in the desirability of the project since approval of the tentative map as well as the subdivider’s diligence. Having denied the two writ petitions, the court ruled that South Hills’ cause of action for damages for a temporary taking was moot. After the trial court dismissed South Hills’ complaint, South Hills’ filed its timely appeal.
CONTENTIONS
South Hills assigns as trial court error: (1) overruling South Hills’ objection to the City’s evidence of the contents of the grading plan, and (2) denying its writ petitions.
DISCUSSION
1. The trial court did not commit reversible error in overruling South Hills’ evidentiary objections
Preliminarily, we address South Hills’ best evidence objection made in the trial court to those portions of engineer Caplin’s declaration that described the adequacy of South Hills’ grading plans. (Evid. Code, § 1523, subd. (a).) On appeal, South Hills contends the trial court abused its discretion in overruling South Hills’ objection.
South Hills did not object to these cited portions of Caplin’s declaration as inadmissible opinion. Nor did it object in the trial court that the declaration did not establish Caplin as an expert. Therefore, South Hills’ contention to this effect on appeal is forfeited. (Newman v. Los Angeles Transit Lines (1953) 120 Cal.App.2d 685, 695.)
Evidence Code section 1523, subdivision (a), reads, “Except as otherwise provided by statute, oral testimony is not admissible to prove the content of a writing.” South Hills observes that the grading plans were the best evidence of their contents and were in the possession of the City. The City did not give an adequate explanation for the plans’ disappearance so as to avail itself of the exception to the inadmissibility of testimony contained in section 1523, subdivision (b).
Evidence Code section 1523, subdivision (b), reads: “Oral testimony of the content of a writing is not made inadmissible by subdivision (a) if the proponent does not have possession or control of a copy of the writing and the original is lost or has been destroyed without fraudulent intent on the part of the proponent of the evidence.”
Among the portions of Caplin’s declaration to which South Hills objected was his testimony that he found the grading plans that he reviewed on February 24, 2006, to be “completely inadequate.” He declared that the plans were a copy of a rough grading plan from 1991 and were not amenable to checking because they lacked standard required information about building pad locations, flow lines, and elevations. The revised grading plans, Caplin found on March 20, 2006, were “still very inadequate. The proposed grading plan was missing and sufficient elevations. There was so much information missing that proper drainage patterns could not be established. It could not be determined if the lots properly drained to the street. Also the grading plan was not drawn in the proper scale required by the City[.]” In Caplin’s view, the grading plans were “substantially incomplete” and “did not conform to the requirements of the City of West Covina, or to basic standards accepted in the engineering industry.”
We conclude, that regardless of whether the trial court should have excluded the objectionable portions of Caplin’s declaration, its ruling admitting the testimony was harmless. (People v. Panah (2005) 35 Cal.4th 395, 475 [best evidence rule not relevant where content of writing not at issue].) Other portions of Caplin’s declaration constitute admissible evidence showing that South Hills did not submit its grading plans before January of 2006, after which it had to revise those plans at least twice. Also, quite apart from Caplin’s statements about why the grading plans were deficient, even South Hills cannot and does not dispute that it did not meet condition No. 5.m.x. (a) because it never had an approved, final grading plan. Among the statements made by Caplin, that South Hills did not object to, was the assertion “At no time on or before March 21, 2006[,] did South Hills . . . submit to and obtain the approval of the Public Works/Engineering Department of an acceptable final grading plan for Tentative Tract Map 53667.” In any event, South Hills never objected to the declaration of Shannon Yauchzee that no fee or security had been approved or posted at the time the City Council met on March 21, 2006, and so condition No. 5.m.x. (c) was never satisfied. Therefore, the administrative record contained sufficient evidence to support the City’s conclusion that South Hills had not satisfied these Tentative Map conditions either at the time South Hills filed its Final Map with the City Engineer on September 15, 2005, or at any time before March 21, 2006, when the Tentative Map expired.
With this in mind, we turn to the trial court’s substantive rulings.
2. Overview of subdivision map approvals
“The [Subdivision Map] Act is ‘the primary regulatory control governing the division of property in California and generally requires that a subdivider of property design the subdivision in conformity with applicable general and specific plans and to construct public improvements in connection with the subdivision. . . . Under the Act, requirements of the subdivider are enumerated, as are the corresponding duties of the local governing body. In many portions of the Act, specific time limits are set for action, and correlating consequences are established for failure to meet those time limits. [Citations.]’ [Citation.] Time limits and consequences apply to the duration of tentative maps. The Act ‘requires a two-step procedure to mapping: [a]pproval of a tentative map followed by approval of a final subdivision map by the local agency. The tentative map process gives the staff and the approving body (usually the planning commission) flexibility in suggesting acceptable changes to the subdivision before it is finally mapped.’ [Citation.] The approving agency . . . may grant or deny approval or conditionally approve a tentative map. (§§ 66452-66452.2.) [¶] Once approval or conditional approval of a tentative map has been secured, the developer has a specific period of time within which to secure a final map.” (Friends of Westhaven & Trinidad v. County of Humboldt (2003) 107 Cal.App.4th 878, 882, fn. omitted.)
Tentative maps expire within 24 months after approval, or as prescribed by local ordinance, not to exceed an additional 12 months. (§§ 66452.6, subd. (a)(1); 66463.5, subd. (a).) Once a tentative map expires, it is void “and no final map or parcel map of all or any portion of the real property included within the tentative map shall be filed with the [local agency] without first processing a new tentative map.” (§ 66452.6, subd. (d).)
However, subdividers may apply for extensions for additional periods before the end of the tentative map’s initial life. (§§ 66452.6, subd. (e) & 66463.5, subd. (c).) Extensions of tentative maps are entirely discretionary. (El Patio v. Permanent Rent Control Bd. (1980) 110 Cal.App.3d 915, 928; Bodega Bay Concerned Citizens v. County of Sonoma (2005) 125 Cal.App.4th 1061, 1072.) Discretionary extensions may be granted for up to a maximum of five years. (§§ 66452.6, subd. (e) & 66463.5, subd. (c).)
To obtain a discretionary extension, the subdivider must submit an application to the county surveyor or city engineer before the expiration of the initial life of the tentative map. (§ 66452.6, subd. (d).) The filing of the application automatically extends the tentative map for 60 days or until the extension is approved, conditionally approved, or denied. (§ 66452.6, subd. (e).) If the local agency (here the Planning Commission) denies a subdivider’s application for an extension, the subdivider may appeal to the legislative body (here the City Council) within 15 days after the advisory agency has denied the extension. (Ibid.)
Once a tentative map is approved, the local agency’s discretion to deny an extension of the map’s life is limited. “[S]ection 66452.6 expressly permits an extension only as to ‘time.’ ” (El Patio v. Permanent Rent Control Bd., supra, 110 Cal.App.3d at p. 928.) That is, when deciding whether to grant an extension, the agency is not authorized to reconsider its findings . . . when it originally approved the tentative map. (Ibid., italics added.)
As noted, the final map must be filed before the tentative map expires. (§§ 66452.6, subd. (d) & 66463.5, subd. (c).) However, once a timely filing of the final map is made, the local agency may process and approve it even after the date of expiration of the tentative map. (§ 66452.6, subd. (d).) If the final map is filed during the life of the tentative map and “is in substantial compliance with the previously approved tentative map,” the agency’s approval of the final map becomes effectively a ministerial act. (§ 66474.1; Youngblood v. Board of Supervisors (1978) 22 Cal.3d 644, 655-656; accord, Bodega Bay Concerned Citizens v. County of Sonoma, supra, 125 Cal.App.4th at pp. 1068-1069.)
a. The City did not act arbitrarily or capriciously in refusing to act on South Hills’ Final Map (Code Civ. Proc., § 1085)
It its petition for ordinary writ, South Hills sought to compel the City to perform the ministerial duty of reviewing and considering South Hills’ Final Map even after the Tentative Map expired. The City’s failure to finish processing the final grading plans was arbitrary and capricious, South Hills argued, entitling it to a writ of traditional mandate compelling the City to continue processing its Final Map.
South Hills relies on section 66452.6, subdivision (d), which reads in relevant part, “Once a timely filing is made, subsequent actions of the local agency, including, but not limited to, processing, approving, and recording, may lawfully occur after the date of expiration of the tentative map. Delivery to the county surveyor or city engineer shall be deemed a timely filing for purposes of this section.” (Italics added.) Based on this statute, South Hills argues that its September 15, 2005, delivery of the Final Map to the City Engineer and County Surveyor constituted a “timely filing” because it occurred before the March 21, 2006, expiration of the Tentative Map. Given the circumstances of this case, we disagree.
In its entirety, subdivision (d) of section 66452.6 reads, “The expiration of the approved or conditionally approved tentative map shall terminate all proceedings and no final map or parcel map of all or any portion of the real property included within the tentative map shall be filed with the legislative body without first processing a new tentative map. Once a timely filing is made, subsequent actions of the local agency, including, but not limited to, processing, approving, and recording, may lawfully occur after the date of expiration of the tentative map. Delivery to the county surveyor or city engineer shall be deemed a timely filing for purposes of this section.” (Italics added.)
This issue was resolved in Ailanto Properties v. City of Half Moon Bay (2006) 142 Cal.App.4th 572, 598 (Ailanto). There, at the time the subdivider delivered its final map to the city engineer, it had not obtained a coastal development permit, which permit was a condition of the tentative map. (Id. at pp. 578-579, 598.) The subdivider argued that section 66452.6, subdivision (d) “means what it says” and so “the filing [with the city engineer] alone operated to extend the life of its vesting tentative map for another three years.” (Ailanto, supra, at pp. 596, 598.) Ailanto rejected that argument and held that the subdivider’s “filing of a phased final map with the city engineer does not entitle Ailanto to a further extension of the life of its vesting tentative map because the phased final map does not conform to the requirements of the vesting tentative map.” (Id. at p. 576.)
In reaching its conclusion, Ailanto considered the statutory scheme of which section 66452.6 is a part. While the “language of [section 66452.6,] subdivision (d) speaks exclusively to timeliness” of a filing (Ailanto, supra, 142Cal.App.4th at p. 599), that language, Ailanto reasoned, “ ‘does not excuse substantive compliance with the Subdivision Map Act.’ ” (Id. at p. 598.) Therein, section 66457, subdivision (a), governing the “[f]iling [of final maps] for approval,” provides that a “final map or parcel map conforming to the approved or conditionally approved tentative map . . . may be filed with the legislative body for approval after all required certificates or statements on the map have been signed and, where necessary, acknowledged.” (§ 66457, subd. (a), italics added.) Ailanto observed that “a map that does not conform to the approved or conditionally approved tentative map may not be filed for approval by the legislative body.” (Ailanto, supra, at p. 599, italics added.) Pursuant to section 66457, subdivision (a), the Ailanto court explained, the subdivider could not file a final map if that map did not conform to the requirements of the tentative map, and so a nonconforming final map could not be “timely filed” under section 66452.6, subdivision (d) merely by delivering a nonconforming map to the city engineer or county surveyor. (Ailanto, supra, at p. 599.)
Section 66457, subdivision (a) reads, “A final map or parcel map conforming to the approved or conditionally approved tentative map, if any, may be filed with the legislative body for approval after all required certificates or statements on the map have been signed and, where necessary, acknowledged.”
The time constraints on local agencies also compelled this conclusion. (Ailanto, supra, 42Cal.App.4th at p. 599.) “[T]he Subdivision Map Act makes quite clear that once the City receives Ailanto’s map, it must either approve it or disapprove it. [Citation.] And it must do so quickly. If the final map ‘conforms to all the requirements’ of the Subdivision Map Act and to any local ordinances applicable at time of the approval or conditional approval of the tentative map, the legislative body must approve the map ‘at the meeting at which it receives the map or, at its next regular meeting after the meeting at which it receives the map[.]’ [Citation.]” (Ailanto, supra, at p. 599.) “[T]he statutory timetable leaves no room for the City simply to suspend action on a nonconforming map in the hope that the subdivider will fulfill the requirements of the vesting tentative map at some unknown future date.” (Ibid.)
Ailanto also relied on McPherson v. City of Manhattan Beach (2000) 78 Cal.App.4th 1252 (McPherson). There, the developer had obtained the legislative agency’s approval of the final map but did not record it before the tentative map expired because the developer did not pay taxes or provide other data that were prerequisites to recording. The developer argued pursuant to section 66452.6, subdivision (d) that the earlier filing of the final parcel map with the city engineer preserved the developer’s rights under the tentative map even after the tentative map’s expiration. (McPherson, supra, at pp. 1257, 1263.) McPherson found significant that the failure to record the final map was not caused by any inaction of the local agency, but because of the developer’s own failure to meet the conditions of recording. (Id. at p. 1263.) McPherson held that under the circumstances of that case, “the delivery of the final map to the city engineer did not constitute a timely filing for purposes of preserving vesting rights under the approved vesting tentative map.” (Ibid., italics added.) The McPherson court explained, “this interpretation is the only one which makes any sense and preserves the purpose of the statute. To hold otherwise would permit a developer to secure tentative vesting rights in perpetuity, simply by submitting the map to the city engineer while cleverly, or inadvertently, withholding payment of the requisite taxes.” (Id. at p. 1263.) Based on McPherson, the Ailanto court ruled, “if we were to accept Ailanto’s argument, it could secure extensions of its vesting tentative rights simply by filing documents that purported to be phased final maps with the city engineer, even if the documents failed to comply with the conditions of the vesting tentative map. We will not adopt an interpretation of the statute that would lead to such a result. [Citation.]” (Ailanto, supra, 142 Cal.App.4th at pp. 600-601, fn. omitted.)
While the statute at issue in McPherson was section 66463.5, subdivision (b) concerning parcel maps (ibid.), its language is virtually identical to that in section 66452.6, subdivision (d), and so its analysis is relevant. (Ailanto, supra, 142 Cal.App.4th at p. 600, fn. 18 [§§ 66463.5 & 66452.6 “have similar language and legislative history” so that “the same analysis would obtain under either provision”], quoting Friends of Westhaven & Trinidad v. County of Humboldt, supra, 107 Cal.App.4th at pp. 881-882.)
The tentative map in McPherson was actually a “vesting tentative map,” under which specific rights are accorded the subdivider. (§ 66498.1.) Although it does not appear that South Hills’ tentative map was a vesting tentative map, its status as vesting or not does not affect the resolution of this issue. (Cf. §§ 66498.1 & 66474.2.)
Ailanto and McPherson are analogous and persuasive. Taken together these cases stand for the proposition that a subdivider cannot “file” a final map without first “ ‘conforming to the approved or conditionally approved tentative map’ ” (Ailanto, supra, 142 Cal.App.4th at p. 599; McPherson, supra, 78 Cal.App.4th at p. 1263) and so a nonconforming final map cannot be deemed timely filed under section 66452.6, subdivision (d), for purposes of that subdivision merely because it was delivered to the city engineer.
Here, South Hills does not and cannot argue that its Final Map conformed to the Tentative Map where at the time of delivery to the City Engineer, South Hills had not fulfilled condition Nos. 5.m.x. (a) and 5.m.x. (c). Therefore, South Hills’ filing is not deemed timely for purposes of section 66452.6, subdivision (d), with the result that the City did not have a ministerial duty to approve the Final Map after the Tentative Map expired. Were we to conclude otherwise, we would effectively permit South Hills to submit any map to the City Engineer, call it a “final map,” and thereby force the City to act on it, regardless of its compliance with the tentative map’s conditions. Such a holding would render the entire tentative map process unnecessary and irrelevant. We decline to read the crucial step of the tentative-map process out of the Subdivision Map Act.
In an effort to distinguish Ailanto, South Hills contends that “the subdivider’s argument had nothing to do with Section 66452.6(d) or with its purposes.” South Hills argues that the subdivider there did not seek an extension of time to enable the local agency to complete its review and processing of the final map; it was only interested in an extension of the tentative map under subdivision (a) of section 66452.6. We are unpersuaded. First, we think the reasoning in Ailanto is applicable to the facts in this case because that court analyzed the requirements for final map approval. Second, as in Ailanto, South Hills does indeed seek an extension of its Tentative Map in its petition for writ of administrative mandate. Most important, however, South Hills also seeks approval of its Final Map despite expiration of the Tentative Map in this writ petition. In essence, similar to the developer in Ailanto, South Hills is seeking to extend the rights it has under the Tentative Map to an approval of the Final Map, notwithstanding the former has elapsed. That the subdivider in Ailanto was using its “timely filing” argument under subdivision (d) to justify an extension of its tentative map under subdivision (a) does not render the opinion’s analysis inapposite. Just as here, the subdivider in Ailanto argued that the mere act of filing a map called final map with the city engineer was enough to trigger rights under subdivision (d). Thus, the entire rationale and focus of this portion of the Ailanto case involves the appellate court’s conclusion that the mere filing of a nonconforming final map does not entitle the subdivider to the “deemed timely” provision under section 66452.6, subdivision (d), merely because it was delivered to the city engineer before expiration of the tentative map. (Ailanto, supra, 142 Cal.App.4that p. 597, italics added.) Ailanto persuasively explains why South Hills’ argument is unavailing.
South Hills also argues that Ailanto illegitimately “imported” the definitions of section 66452.6, subdivision (d) to an entirely different subdivision, namely, subdivision (a). The contention is unavailing. The rationale in Bodega Bay Concerned Citizens v. County of Sonoma, supra, 125 Cal.App.4th 1061, also involved exporting language in subdivision (d) to construe language in subdivision (e) of that same section. (Id. at pp. 1069-1071.)
Our conclusion is bolstered by public policy considerations expressed throughout the Subdivision Map Act. That Act sets out specific timeframes to both the subdivider and the local agency (Friends of Westhaven & Trinidad v. County of Humboldt, supra, 107 Cal.App.4th at p. 882) that result from careful balancing of the needs of both the local agency and the rights of the subdivider. The local agency, on the one hand, must coordinate planning with locally-established patterns and regulate improvements of subdivisions to avoid undue burden on the taxpayer. (Gomes v. County of Mendocino (1995) 37 Cal.App.4th 977, 985-986.) On the other hand, “[o]nce the tentative map is approved, the developer often must expend substantial sums to comply with the conditions attached to that approval. These expenditures will result in the construction of improvements consistent with the proposed subdivision, but often inconsistent with alternative uses of the land. Consequently it is only fair to the developer and to the public interest to require the governing body to render its discretionary decision whether and upon what conditions to approve the proposed subdivision when it acts on the tentative map. Approval of the final map thus becomes a ministerial act once the appropriate officials certify that it is in substantial compliance with the previously approved tentative map. [Citations.]” (Youngblood v. Board of Supervisors, supra, 22 Cal.3d at pp. 655-656.) Given these competing time constraints, it would be manifestly unfair to the public interest to allow a developer to extend its rights granted by the tentative map without correspondingly taking the steps to meet the conditions of that map’s approval.
These time constraints compel us to reject South Hills’ further argument that section 66452.6, subdivision (d), does not require that the final tract map be fully completed “with all the ‘t’s’ crossed and [the] ‘i’s’ dotted” because that statute allows the City to continue “processing” a timely filed final map. South Hills appears to advocate a rule that allows a developer to file a nonconforming map if the amount of time necessary to make it conform is “short,” but not if that time is “long.” Regardless of the amount of time necessary to meet the tentative map’s conditions, South Hills’ Final Map did not meet them on September 15, 2005, when it submitted it to the City Engineer, and still did not meet the conditions six months later when the Tentative Map expired. And, as Ailanto observed in rejecting a similar argument, South Hills “misconceives the statutory scheme for the approval of final maps, for it assumes that the City could accept delivery of the . . . final map and then withhold action until such time as Ailanto succeeds in obtaining the required coastal development permit.” (Ailanto, supra, 142 Cal.App.4that p. 599.) The City here is in no position under the Act to wait for South Hills to satisfy the requirements of the tentative map regardless of how long it may take. (Ibid.)
South Hills quotes McPherson that the purpose of “deeming delivery to the city engineer to be a timely filing was to ‘eliminate occasions where a subdivider must refile a tentative map because the local agency did not keep it moving through the approval process, and the validity period expired through no fault of the subdivider.’ [Citation.] Thus, so long as the developer fulfills its obligations, subsequent actions of the local agency can take place after the tentative expires (thereby protecting the developer from being prejudiced by the agency’s delays).” (McPherson, supra, 78 Cal.App.4th at p. 1263, third italics added, quoting from Conf. Com., coms. on Assem. Bill No. 2740 (1985-1986 Reg. Sess.) p. 2; see also. Bodega Bay Concerned Citizens v. County of Sonoma, supra, 125 Cal.App.4th at p. 1072.) While the goal behind section 66452.6, subdivision (d) is laudable, the facts here are contrary to those contemplated by the Legislature. The delay in filing a conforming Final Map was not caused by any action or inaction on the part of the City, but because of events wholly in the control of South Hills, i.e., its failure to conform the Final Map to the Tentative Map’s conditions. (Ailanto, supra, 142 Cal.App.4th at p. 599; § 66457, subd. (a).) South Hills did not file a grading plan until January 2006, and did not submit estimated fees until March 2006. Hence, in September 15, 2005, when South Hills delivered the Final Map to the City Engineer, South Hills had not “fulfill[ed] its obligations” as McPherson contemplated. (McPherson, supra, at p. 1263, italics added.)
To clarify, we are not holding that in order for a filing to be timely under subdivision (d) of section 66452.6, a subdivider must have all signatures on the prerequisites to approval before delivery of the final map to the city engineer. Where approval is in the control of the local agency, the purpose behind that section is advanced by the “deem[ing] timely filed” provision. However, the work necessary to submit the grading plans and securities and fees for approval here were entirely in the control of South Hills and therefore must be satisfied before delivery to the City Engineer can be deemed a timely filing so as to preserve South Hills’ rights under the Tentative Map. (McPherson, supra, 78 Cal.App.4th at p. 1264, fn. 5.)
In footnote 5, McPherson stated, “We do not hold an applicant must obtain tax clearance before delivery to the city engineer may constitute a timely filing. Certainly, we can conceive of circumstances where such clearance is in the province and control of the local agency. But, the actions necessary to obtain such clearances are within the control of the developer and must be satisfied before delivery to the city engineer can be deemed a timely filing, preserving the developer’s rights after the tentative expires.” (McPherson, supra, 78 Cal.App.4th at p. 1264, fn. 5.)
In sum, we hold that the evidence supports the trial court’s findings (American Federation of State, County & Municipal Employees v. Metropolitan Water Dist. (2005) 126 Cal.App.4th 247, 261) that the Final Map did not conform to the conditions of the Tentative Map when delivered to the City Engineer because South Hills did not have approved grading plans and did not post the approved cost estimates and securities. The trial court properly ruled that South Hills was not entitled to ministerial approval of that Map merely by submitting a final map to the City without having satisfied the conditions imposed upon the approval of the tentative map. Therefore, the City did not act arbitrarily or capriciously in declining to review South Hills’ Final Map after March 21, 2006, when the Tentative Map expired. Accordingly, the trial court did not err in denying South Hills’ petition for ordinary mandamus. (Code Civ. Proc., § 1085.)
b. The evidence supports the City’s decision to deny South Hills’ application for extension of the Tentative Map (Code Civ. Proc., § 1094.5)
South Hills sought a writ to overturn the City’s denial of a final discretionary extension of the Tentative Map, arguing the decision was not supported by the evidence and the City failed to proceed in the manner required by law because it considered the merits of the subdivision when ruling on the extension request and made no findings or conclusions. The trial court rejected South Hills’ contention that, in deciding whether to grant a discretionary extension of a tentative map, the local agency is limited to considering only whether the developer proceeded diligently to satisfy the conditions of the tentative tract map. The court held that the City may also consider changes in the desirability of the project that occurred since approval of the Tentative Map. The court found that evidence supported the City Council’s conclusion that South Hills was not diligent and that the project would have a negative effect on a “ ‘cohesive neighborhood.’ ”
South Hills asserts the right to a discretionary extension of its Tentative Map, which was not a vesting tentative map. (9 Miller & Starr, Cal. Real Estate (3d ed. 2001) § 25:73, p. 25-348 & § 25:68, p. 25-301; § 66452, subds. (b) & (c); see, e.g., Consaul v. City of San Diego (1992) 6 Cal.App.4th 1781, 1793, fn. 7 [claim of right to develop property in accordance with allocations made under an interim development ordinance does not allege entitlement to a vested right].) Accordingly, substantial evidence review in the administrative mandamus context is appropriate. (Code Civ. Proc., § 1094.5, subd. (c).) Under this standard, the trial court was required to determine whether substantial evidence supported the City Council’s findings and whether those findings supported its decision. (Bolsa Chica Land Trust v. Superior Court (1999) 71 Cal.App.4th 493, 502.) Our role on review mirrors that of the trial court. (Id. at p. 503; Kirkorowicz v. California Coastal Com. (2000) 83 Cal.App.4th 980, 986.)
Code of Civil Procedure section 1094.5, subdivision (c) reads: “Where it is claimed that the findings are not supported by the evidence, in cases in which the court is authorized by law to exercise its independent judgment on the evidence, abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence. In all other cases, abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record.”
On appeal, South Hills contends that, “An application for an extension of a tentative tract map cannot be denied merely because the local agency has changed its mind about the project.” (Italics added.) South Hills argues that the trial court erred therefore in ruling that the City could consider the changed condition of the property in deciding whether to grant or deny its extension application. Regardless of whether the City Council may consider changed conditions, South Hills does not challenge the trial court’s ruling that the City properly considered South Hills’ diligence.
The administrative record contains substantial evidence supporting the City Council’s finding that South Hills had not been diligent in processing its Final Map, South Hills’ contention to the contrary notwithstanding. The property at issue was 37 lots out of a larger parcel that had already been subdivided and so the Tentative Map was merely a re-subdivision of an existing final tract map and all that was needed, according to the Planning Commission in 2002 when the Tentative Map was approved, was some re-grading, the realignment of certain lot lines, the vacation of a public street, the installation of a security gate, the preparation of CC & R’s, and establishment of a Home Owners Association. Indeed, the proposed development was to be similar to other residential developments in the immediate neighborhood. Yet, although not explained in the record, South Hills waited until four months before the expiration of the Tentative Map to file the Final Map with the City Engineer and the County Surveyor. The County did not approve the Final Map until February 13, 2006, after the Tentative Map’s original expiration date. But South Hills had yet to obtain approval of the Final Map. More important, South Hills did not begin the process of obtaining approval of its grading plans and fees, specific conditions of the Tentative Map, until January and March 2006, respectively.
At the public hearing, the City Council heard from citizens who described South Hills’ slow process in completing the plans. The Planning Director testified he did not know “exactly of what [sic] extenuating circumstances there may have been that has caused it to be four years to get to this point[,] however.”
Just before voting, three councilmembers stated on the record that South Hills’ delay in processing the Final Map was a reason for denying the extension application. “Madam Mayor . . . I’m not opposed to gated communities . . . and I’m not judging my decision on that[.] [M]y decision is based on the fact that we had a two year tract map situation where it had to be recorded and it was given one extension and then another extension and then this is the third extension that he’s asking for. That’s a lot of time for to [sic] record a tract map. We need to be sure people are progressing on these things and that’s why I’m making the denial[.]” Another stated, “I agree . . . . I believe this original sub-division had all open streets. That is not what I’m making my decision on [sic] I believe this is not timely, it has been four years to do this process . . . .” Finally, the Mayor stated, “Number one, it’s been four years and I do think that’s a lengthy amount of time[.]”
Therefore, although the City Council also considered other factors, such as its dislike of gated communities, the record supports the trial court’s determination that substantial evidence supported the finding the City Council made when it denied the extension application that South Hills had not been diligent. South Hills does not dispute that its diligence was a proper factor of the City Council to consider. Accordingly, the City proceeded according to law. (Bolsa Chica Land Trust v. Superior Court, supra, 71 Cal.App.4th at p. 502.) The trial court did not err in denying South Hills’ petition for writ of mandate. (Code Civ. Proc., § 1094.5.)
South Hills’ third basis for its writ petition was that the City failed to proceed in the manner required by law because there are no findings or conclusions to support the City’s decision. The record shows that the City made findings and conclusions. Plaintiff listed them in its Resolution No. 2006-22. (Bolsa Chica Land Trust v. Superior Court, supra, 71 Cal.App.4th at pp. 502-503.)
As the result of our conclusion here, South Hills’ allegations that the City’s conduct constituted a temporary taking is moot.
DISPOSITION
The judgment is affirmed. Each party to bear its own costs on appeal.
We concur: KLEIN, P. J., CROSKEY, J.
South Hills argues that although in McPherson, the subdivider was exclusively at fault for the delay in finalizing the final map, that does not “stand for the proposition that the subdivider must be entirely ‘blameless’ . . . .” As evidence of the City’s delay, South Hills points to the fact that in February 2006, the City informed South Hills that it had lost its file and required replacements of all maps and so in late February 2006, South Hills delivered new prints of the Tentative Map to the City. We need not reach this argument because, apart from the fact that the salient delay here occurred prior to January 2006, and March 2006, the original submission of the proposed grading plan and fee estimates, respectively, the initial submission of these documents was solely in South Hills’ control.