Approval of a tentative parcel map does not prevent zoning changes from applying to the subdivision, the Fourth District Court of Appeal has ruled. In a case from Orange County, the court ruled that the county could enforce provisions in a specific plan adopted after the county approved a four-lot

The specific plan requires developers to get a site development permit before proceeding with grading. Developer Thomas Hafen argued that he was eligible for a grading permit because his project was approved before the county adopted the specific plan's site development permit requirement. The appellate panel disagreed.

In a commentary for the Los Angeles Daily Journal, Bingham McCutchen attorneys Daniel Curtin Jr. and Bryan Wenter wrote, "Although the court did not break any new ground with this decision, it offered a reminder of the importance of vested rights to land development in California."

Indeed, the Fourth District based its decision largely on the state Supreme Court's nearly 30-year-old decision in Avco Community Developers, Inc. v. South Coast Regional Com., 17 Cal.3d 785 (1976). "[T]he Avco court concluded a public entity may enforce changes in zoning regulations notwithstanding prior subdivision approval unless the owner or developer (1) has obtained a building permit for an identifiable structure, and (2) has performed substantial work in reliance thereon," Justice Raymond Ikola wrote for the court.

It was in response to Avco that the Legislature approved laws permitting development agreements and vesting tentative maps, both of which permit developers to lock-in existing zoning regulations.

In the case at hand, however, the developer did not have a building permit, a development agreement or a vesting map. Instead, what the developer had was a four-lot tentative parcel map originally approved in August 1990, which was kept alive for a decade with various extensions, and a final map that he recorded in December 2000. In 1991, however, Orange County supervisors adopted the Foothill/Trabuco Specific Plan (FTSP) for 6,500 acres in the foothills of the Santa Ana Mountains. The specific plan states that "all grading activities must first have an approved site development permit," even if a grading permit is not required.

"Clearly," Justice Ikola summarized, "grading issues are at the very heart of the FTSP, its environmental and aesthetic concerns, its substantive and procedural regulations, and its design guidelines."

Still, in July 2001, Hafen's engineer argued in a letter to the county that his client needed no discretionary permit--namely a site development permit--to proceed with grading. "We have four legal lots and no one has the power to tell us that these lots cannot be developed unless there are extreme public health and safety concerns," Civil Engineer George Polycrates told the county. "We made an agreement with the government."

When the county stuck to its position that Hafen had to comply with the specific plan and get a site development permit, Hafen sued. He argued that the county had a ministerial duty to issue a grading permit--an argument accepted by Orange County Superior Court Judge W. Michael Hayes. He ruled that the county's approval of the tentative parcel map prior to adoption of the specific plan gave the developer "certain vested rights as to the approval of the final map." He further found that the specific plan did not constitute a zoning ordinance that would allow the county to impose additional conditions on the tentative map.

The county appealed, and the unanimous three-judge appellate panel disposed of the trial court's ruling in short order.

The court first reviewed Avco and its exception for a developer who has a building permit. Hafen had no building permit. The court then considered whether the specific plan amounted to a change in zoning regulations for Hafen's property. The court said yes and cited the zoning code, which states, "[A]ll land use, development and improvements shall conform to the provisions of the adopted specific plan."

"Even more notably," Ikola wrote, "Zoning Code [section] 7-9-139, entitled 'Grading and Excavation,' provides, in subdivision (a): 'Grading and excavation regulations adopted in a specific plan shall supercede this section.' The Zoning Code itself placed the FTSP at the top of the zoning pyramid."

Government Code [section] 65961 prohibits a local government from imposing additional conditions on the issuance of a permit based on a tentative map for five years. But the specific plan in this case constituted an exception, the court ruled. Besides, the specific plan was a zoning change, not a change to parcel map conditions. "[U]nder the Avco rule, the Zoning Code sets the preemptive course," the court held.

* The Case:

Hafen v. Orange County, No. G033970, 05 C.D.O.S. 2968, 2005 DJDAR 4005. Filed March 4, 2005. Ordered published April 5, 2005.

* The Lawyers:

For Hafen: Karen J. Lee, Newmeyer & Dillon, (949) 854-7000.

For the county: William Haluck, Koeller, Nebecker, Carlson & Haluck, (949) 864-3400.