September 28, 2020

Volume X, Number 272

September 28, 2020

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A Challenge Regarding the Interpretation of a Project Condition of Approval may be Filed More than 90 Days Following the Project Approval

On June 25, 2020, the Fifth Appellate District decided Honchariw v. County of Stanislaus, holding that an applicant's challenge to a local agency's interpretation of a project condition of approval was not barred by the Subdivision Map Act's statute of limitations because it was not a challenge to the validity of a condition of approval. This decision is important for developers, as the 90-day statute of limitations under the Subdivision Map Act (at Gov. Code § 66499.37) and the Planning and Zoning Law (at Gov. Code § 65009(c)(1)) is extremely short, and conflicting interpretations regarding a condition may not arise until months or years later. This decision provides developers with an opportunity to challenge conflicting interpretations of a condition so long as the lawsuit is filed within 90 days after the conflict has materialized.

DISPUTED VESTING TENTATIVE MAP CONDITIONS OF APPROVAL REGARDING WATER SERVICE

In Honchariw, the County Board of Supervisors conditionally approved subdivider Honchariw's application for a vesting tentative map in 2012. This approval followed years of litigation between Honchariw (as a prolific pro per litigant) and the County regarding this riverfront property that his family had owned for decades. A primary concern was the source of water service for the subdivided lots. The County therefore imposed four conditions to the vesting tentative map approval that sought to address this issue.

During the ensuing several years, Honchariw and County staff worked to address the property's water supply, but in 2017, the County interpreted the subject conditions to require a fire suppression system that was contrary to Honchariw's understanding. Honchariw argued that the County's interpretation "came at him out of the blue" because the Community Services District's system could not supply the required flows to make fire hydrants functional, as now required by the County. The parties continued to negotiate, with Honchariw insisting that a functional fire suppression system was not required for approval of the final map and could instead be built out as the lots were developed. The parties reached an impasse in the summer of 2017, five years after the vesting tentative map was approved.

A CHALLENGE REGARDING THE INTERPRETATION OF A CONDITION DIFFERS FROM A CHALLENGE TO THE VALIDITY OF A CONDITION

After the trial court conducted a hearing on the merits, it denied Honchariw's petition and complaint. On appeal, the County argued that to the extent that Honchariw was challenging the project's conditions of approval imposed in 2012, the challenge was barred by the 90-day statute of limitations set forth in Government Code section 66499.37 relating to decisions regarding subdivisions, including "the reasonableness, legality, or validity of any condition attached thereto."

Honchariw argued, and the appellate court agreed, that his challenge was not to the validity of the subject conditions, but to the County's "misinterpretation and misapplication" of the conditions, and that the parties' respective stances regarding the meaning of the subject conditions were not clarified until July 2017. The court held that Honchariw's claim did not "accrue" until then, so the filing of the lawsuit on August 25, 2017 was not time-barred by the Map Act's 90-day statute of limitations.

NO DEFERENCE TO A LOCAL AGENCY'S INTERPRETATION OF PROJECT CONDITIONS

In the unpublished portion of the opinion, the Court sought to interpret the disputed conditions of approval, and remanded the matter to the trial court to resolve conflicting evidence in the record. In so doing, the appellate court applied the general principles for construing written instruments, provided that the principles do not undermine the purposes of the Subdivision Map Act.

The Fifth District also declared that while courts typically defer to a local agency's interpretation of its own administrative rules, such deference was not appropriate when interpreting a subdivision's conditions of approval, and that a court should instead "resolve any ambiguity in the conditions of approval in a manner consistent with the objectively reasonable expectations of the applicant." Failing to do so would "undermine the purpose of the vesting tentative map statute." The court further stated: "we are not bound to accept the local agency's interpretation of a condition of approval simply because that interpretation is one of multiple reasonable interpretations. Such an approach would reward local agencies that draft ambiguous conditions of approval by giving them flexibility not conferred by clearly drafted conditions."

IMPLICATIONS OF HONCHARIW

Although the facts of this case are limited to the Subdivision Map Act's 90-day limitations period, the Planning and Zoning Law has similar language regarding actions to "determine the reasonableness, legality, or validity of any condition attached to a variance, conditional use permit, or any other permit" (Gov. Code § 65009(c)(1)(E)), thus the rationale in Honchariw would arguably be applicable to disputes regarding the interpretation of basically any project condition of approval.

This decision thus provides developers with a litigation option in the event of a dispute regarding the interpretation of one or more conditions of approval long after the project is approved.

Although the unpublished portion of the opinion cannot be cited as authority, it is provocative in its refusal to provide deference to a local agency's interpretation of a project condition that it imposes and its admonishment of local agency attempts to impose ambiguous conditions that the agency can interpret to its advantage following the project approval.

© 2010-2020 Allen Matkins Leck Gamble Mallory & Natsis LLP National Law Review, Volume X, Number 182

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About this Author

David Blackwell, Real Estate litigator, land use Attorney Allen Matkins Law
Partner

David H. Blackwell is a partner in the firm's San Francisco office where he practices real estate law with an emphasis on land use entitlements and litigation. David's experience includes representing landowners, developers, businesses, and governmental entities before administrative agencies and state and federal courts.

David's practice involves all areas of land use law, including state and local planning and zoning law, the California Environmental Quality Act, the Subdivision Map Act, initiatives and referenda, development agreements,...

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