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HomeMy WebLinkAbout1993-08-24 - AGENDA REPORTS - REQUEST RIGHTS TRACT 34430 (2)AGENDA REPORT ?CItyMa gerA proval Item to be presented b Carl Newton CONSENT CALENDAR DATE: August 24, 1993 SUBJECT: June 25, 1993 Request from David Breler, related to vested rights for Tract 34430 DEPARTMENT: City Attorney BACKGROUND On June 25, 1993, staff received a letter from Mr. David Breler questioning the City's ability to Impose fire facility fees at building permit stage for each single family home located within Tract 34430. Mr. Breler represents the Santa Ciarita Company, the project developer. The letter argues that the City had previously extended the project a vested right to proceed and that the Imposition of fire fees at building permit stage is in conflict with vested rights. The fire fees were adopted after the tract map was approved and recorded. Generally, a vested right allows an applicant to proceed on a project under rules In effect at the time the application was deemed complete. This vested right does have an expiration date (two years from recordation, If an extension Is not granted). The final map for this project recorded In 1988. In summary, staff and the City Attorney disagree with this argument as this vested right has expired on the map, thereby allowing the City to Impose the fee. Staff recommends that the City Council: Review and file the August 17, 1993, letter from the City Attorney to the Council and direct the City Attorney to send the letter to Mr. Breler. ATTACHMENTS January 25, 1988 letter to City Council from the City Attorney re: vested rights - Tract 34430 June 25, 1993 letter to City Attorney from Mr. David Breler August 17, 1993 letter from City Attorney to the City Council GAH:GEA: councirarvest.gea APPROVED Agenda Item:. AGENDA REPORT ity Manager Approva Item to be presented by: J. Carl Newton CONSENT CALENDAR DATE: August 24, 1993 SUBJECT: June 25, 1993 Request from David Brier, related to vested rights for Tract 34430 DEPARTMENT: City Attorney BACKGROUND On June 25, 1993, staff received a letter from Mr. David Breier questioning the City's ability to Impose fire facility fees at building permit stage for each single family home located within Tract 34430. Mr. Breier represents the Santa Clarita Company, the project developer. The letter argues that the City had previously extended the project a vested right to proceed and that the Imposition of fire fees at building permit stage Is In conflict with vested rights. The fire fees were adopted after the tract map was approved and recorded. Generally, a vested right allows an applicant to proceed on a project under rules in effect at the time the application was deemed complete. This vested right does have an expiration date (two years if an extension is not granted). In summary, staff and the City Attorney disagree with this argument as this vested right has expired on the map, thereby allowing the City to Impose the fee. RECOMMENDATION Staff recommends that the City Council: Review and file the August 17, 1993, letter from the City Attorney to the Council and direct the City Attorney to send the letter to Mr. Brier. January 25, 1988 letter to City Council from the City Attorney re: vested rights - Tract 34430 June 25, 1993 letter to City Attorney from Mr. David Breler August 17, 1993 letter from City Attorney to the City Council GAH:GEA: counciharvest.gea. LAW OFFICES BURKE, WILLIAMS & SORENSEN fill WEST 51%TM STREET. SUITE 2500 LOS ANGELES, CALIFORNIA 90017 12131 236-0600 MARTIN J BURNC' ROBERTV WARDEN JAMCS T. BRADSHAW. JR' NIM E. MCNPLLY MARX C.... IR' MA.IANN UMµ GOOONINO MARTIN L SURNC' TIMOTHY B. M109NER CARL N. NCAT.N' RITA J MVNSON J ROBERT FLANORICN' STEVEN 1 GAW50N NORMAN E. GAART TERRY P. NAUFMAMN COWARO M. FON- STEPHEN R. ONSWT OCNM19 P BURN.' JOAN E. CAVANAVGN LCIANO C. DOLLEY' MAR. O. X .SLC• COLIN LANNANO PETER O. TREMSLAY MEIL F. I.L.' I.S.F. P ..CNMAN SRI.. A RCRIN' .....RY T..... CHARLES M. CAL ... 0.- ANTHONY.. CONOOTTI PATERM. THORSON, AVORCV AO 1C.SO' ..... M N NARC. J 9CHVLDT A.OLD A- ERIWES' IANCT 5, GARMST CXCRYL J. WINE' PAUL C. ANDERSON RAYMOND L FUENTES' BRCNOA L DIEDERICN$ .A, S. GUSER TIMOTHY V P. GALLAOHE. VIRGINIA R. PESOLA JOHN J. WELSH e PAUL BRUGUEPA MARY JO SNELTOAG.TCNE. S. OEPCN STR %TSMA JCF..EV NIGHTLINGER DOM O.NIRCAER PENNY PARTON MICHELE R. VADON TIMOTHY O. CREMIN 9COYT I. FICLD GRE ... T 0. OMUI MARY R.. U. GAlLe N.HNCTN O. ROSCLL RUFUS 4 YOUNG, JR. ..-CC SHERW000 STM. NMLTON NOP `O-CMIETH - CALC 0 JUOITH A CAMORT TEMISA F. RCONIN ...IN P PAERSP ANNE T. PFEFFER THOMAS C WOOO CAROL R. VICT.. .W... LEVIHEON RAV4 L OIONN[ USA E. NRANITZ 'FROFC5810N4. CORPORATION 1A POORSSIONAL ASSOCIATION ADMITTED IN MmSAS 0 NISSOOM IIADMITTED IN CALIFORNIA, NA.SAS 6 MISSOURI AAOMITTEO IN CAVFORM4 6 WASMINOTON. 0.4 ^.13.1120 IN nANSAS IAX:6.5188.1 TELECOPIER: (2131 236-2700 HARRY C. WILLIAM. 401R-IOOT ROYAL M. SORCNSEN OOMHOB31 August 17, 1993 Mayor and Members of the City Council City of Santa Clarita 23920 Valencia Boulevard, Suite 300 Santa Clarita, California 91355 riecalY.kka AUG 1 71993 LYNN LZ, HMMS "NACtoR of CommunFIV nA•• VENTURA COUNTY OFFICE 2310 A ....... A DRIVE SUITE 1 CAMARILLO. CALIFORNIA OSOO le0s Bo-Nea ORANGE COUNTY OFFICE 3200 S.ISTOI STRCET SUITE 690 COSTA MESA, CALIFORNIA 02620 17.1 0983550 BURNE, WILLIAMS, SORENSEN 6 SAAR LIGHT.. RLA2. 2300 COLLAGE BOULEVARD BUITC 220 ...RING RPR.. KANSAS BE... 10131330-BR10 WRITERS DIRECT DIAL (213) 236-2708 OUR FILE NO. 02012-017 Re: Response to June 25, 1993 Letter of David Brier, Esq. regarding Rancho Financial Associates Dear Mayor and Members of the City Council: This letter addresses the issues raised by David H. Breier, Esq, representing Santa Clarita Company, the successor to Rancho Financial Associates, Ltd. ("Rancho"), in a letter dated June 25, 1993. In his letter, -Mr. Breier wrote that heisof the opinion that fees to fund fire protection facilities are not assessable at the time building permits are obtained for the lots on Vesting Tentative Tract No. 34430. The conclusion of this response is that the City Attorneyfs office disagrees with Mr. Breier's opinion. On January 25, 1988, the City Attorney's office wrote an advisory opinion to the City Council ("Advisory Opinion") which, in part, reached the conclusion that Rancho had acquired a vested right to proceed with that portion of the Project which is described within Vested Tentative Map 34430 and CUP 85-147. The City 'Council subsequently confirmed the Advisory Opinion. This letter will review the Advisory Opinion and then provide an analysis of whether fees to.fund fire protection facilities are assessable at the time building permits are obtained for lots located on the property of Vesting Tentative Mayor and Members -of the City Council August 17, 1993 Page 2 Tract No. 34430. This letter concludes that such fees are assessable at -the time building permits are obtained: 1. Advisory Opinion Letter The Advisory Opinion noted that vested rights may be acquired under either the common law or by statutory law. California common law dictates that when an owner of property performs substantial work and incurs substantial liability in good faith reliance upon a permit issued by the government, that owner acquires a vested right to complete the project in accordance with the terms of the permit. (Avco Community Developers Inc v South Coast Regional Commission (1976) 17 Cal.3d 785, 791.) Once a right vests, the government may not change its land use rules to prohibit the project which was authorized by that permit. (Id.) In following the above-stated.Avco rule, the Advisory Opinion noted that the proper analysis to determine whether Rancho's rights were vested, was to investigate (1) the type of permit issued by the County of Los Angeles, (2) the expenditures by Rancho, and (3) the good faith activity by both Rancho and the newly incorporated City of Santa Clarita. The Advisory Opinion first discussed whether the permit issued by the County of Los Angles in this matter, CUP 85-147, constituted a sufficient permit to grant a vested right under the common law. The Advisory Opinion noted that courts have held that building permits are generally required to establish a vested right, but that a conditional use permit might be sufficient to vest rights if it is sufficiently specific. (See Avco, at 793-794.) The Advisory Opinion noted that no case has decided the level of specificity required in a conditional use permit, and thus relied heavily on the fact that Rancho also had a vesting tentative map under statutory law to reach the conclusion that Rancho had a sufficient permit to receive a vested right under common law. The Advisory Opinion noted, however, that approval of a Final Map alone is not a sufficient permit to give rise to a vested right. With respect to the last two requirements of obtaining a vested right, -the Advisory Opinion observed that Rancho appeared to have made substantial expenditures (based on information received from Rancho) and to have acted in good faith. Mayor and Members of the City Council August 17, 1993 Page 3 Therefore, Rancho appeared to have acquired vested rights with respect to the lots on CUP No. 85-147. As noted above, a vested right may also derive from the statutory law of vesting tentative maps. (Government Code Sections 66498.1 to 66498.8.) The Advisory Opinion noted that "inasmuch as statutory law is good law . . . Rancho has a vested right (under Government Code Sections 66498.1 to 66498.8] as to that portion of the Project which comes within the Vested Tentative Map.'t 2. Analysis Mr. Breier has asked our office to confirm his opinion that fees to fund fire protection facilities are not assessable at the time building permits are obtained for lots located on the property of Vested Tentative Tract No. 34430. The City Attorney's office disagrees with Mr. Breier and will not.so confirm his opinion for the following reasons. First, the statutory vested rights have expired. Government Code Section 66452.6(g) provides that the rights conferred by a vesting tentative map shall not last for more than two years from recordation of the final map unless extended. With respect to Vested Tentative Tract No. 34430, it is not alleged that any of the circumstances exist which would extend such rights. Second, any common law vested rights have also expired because, as discussed above, our office in 1988 relied heavily on the fact that Rancho also had a vesting tentative map under statutory law to reach the opinion that Rancho had a sufficient permit to receive a vested right under common law. Because the statutory vested rights from the vested tentative map have expired, the common law rights, if any, have also expired. Third, even if the common law vested rights have not expired, such rights would not include a right to be free from the imposition of fees such as those required to fund fire protection facilities. The vested rights doctrine is based on the doctrine of estoppel which may be applied against the government where justice and fairness require it. (Santa Monica Pines. Ltd. V. Rent Control Board (1984) 35 Cal.3d 858, 866-867.) "An equitable estoppel requiring the government to exempt a land use from a subsequently imposed regulation must include (1) a promise such as that implied by a building permit that the proposed use will not be prohibited by a class -of restrictions ux:6sisa.1 Mayor and Members of the City Council August 17, 1993 Page 4 that includes the regulation in question and (2) reasonable reliance on the promise by the promisee to the promisee's detriment." (Id.) In Santa Monica Pines, the court doubted whether.an approval of a subdivision map for condominium conversion could lead to a vested exemption from a subsequently enacted rent control law requiring a removal permit. In this matter, the County of Los -Angeles did not approve a building permit, but rather a conditional use permit and a vesting tentative map. The promises implied by the approval of a conditional use permit and a vesting tentative map are less extensive than those implied by a building permit and would not include a right to be free from the imposition of fees such as those required to fund fire protection facilities. Even if common law vested rights currently exist, they would not exempt building permits on lots under CUP 85-147 from the imposition of fees required to fund fire protection facilities for additional reasons. Mr. Breier cited dicta from the case of (1988) 44 Cal.3d 839 to support his position that fees would impair Rancho's vested rights. However, the court in Russ did not actually address the issue of whether fees would impair vested rights, therefore, its language on this issue is not binding precedent. other cases which have addressed the issue of subsequently enacted fees have consistently upheld a local government's right to impose such fees when building permits are obtained. (Fontana Unified School District v City of Rialto (1985) 173 Cal.App.3d 725; Laguna Village. Inc. V. County of Orange (1985) 166 Cal.App.3d 125; McLain Western #1 v. County of San Diego (1983) 146 Cal.App.3d 772 (holding that the county was entitled to impose a school facilities fee even though the development had been granted tentative -map approval and final maps were recorded prior to the adoption of the school fee ordinance).) In spite of the fact that; as Mr. Breier notes, none of these cases examined a situation where vested rights had arisen, their holdings are instructive. In Fontana, the court held that a city could impose school fees as a condition to obtaining building permits even though the city had approved the.tentative map before the enactment of the school fees ordinance. The court reasoned that the builder must comply with all current laws in obtaining a building permit because the issuance of a building permit was -not merely a ministerial act. (Fontana, 173 Cal.App.3d at 732 (citing Avco, 17 Cal.3d at 795, for the general proposition that a builder must LAX:651U.1 Mayor and Members of the City Council August 17, 1993 Page 5 comply with the laws which are in effect at the time a building permit is issded).) By this:reasoning, since Rancho never obtained building permits, the City could impose school fees as a condition to the issuance of such permits. Further, in Laguna Village, a case with facts similar to the present matter in that a tentative map and a conditional use had been approved, the court also upheld the imposition of school fees as a condition for building permits even though the school fees ordinance had been enacted after the tentative.map and conditional use permit had been approved. Finally, it appears that Rancho has not expended actual building costs on the 163 lots at.issue. Since vesting of rights requires actual reliance (see Avco, 17 Cal.3d at 791), the fact that Rancho did not build on the lots at issue would make it less likely that they have vested rights. 3. Conclusion Therefore, it appears that fees to fund fire protection facilities are assessable at the time building permits are obtained for lots located on the property of Vesting Tentative Tract No. 34430. If you have any questions or comments, please do not hesitate to contact me. cere CARL K. NEWTON of BURKE, WILLIAMS & SORENSEN cc: George Caravalho, City Manager Lynn Harris, Deputy City Manager/Community Development Timothy.B..McOsker, Esq. Elizabeth M. Calciano, Esq. wc:6sisa.t Ll DAVID H. BREIER IRWIN E. SANDLER SANDLER•& BREIER ATTORNEYS AT LAW 10050-WILSHIRE BOULEVARD, SUITE 1075 LOS ANGELES, CALIFORNIA 90024 June 25, 1993 Carl Newton, Esq. BURKE, WILLIAMS & SORENSON One Wilshire Building 624•South Grand Avenue Los Angeles, CA 90017 TELEPHONE 13101 474-7600 FAX 13101 474-7404 Re: Vesting Tentative Tract No. 34430 Final Tracts Numbered 43519, 43518 and 45284 Dear Mr. Newton: We represent Santa Clarita Company, the..suocessor to Rancho Financial Associates Ltd. ("Rancho"), with referenced tracts. The purpose of this whether you agree in our opinion that the by our client as successor to Rancho ma] imposition of fees adopted pursuant to (authorizing the establishment of a fee t facilities). respect to the above - letter is to inquire vested rights acquired ce it exempt from the Ordinance No. 92-15 D fund fire protection On January 25, 1988 you wrote to the City Council an advisory opinion, a copy of which is attached hereto for your convenience. In that advisory opinion you concluded that Rancho had a vested right to proceed with development of the land identified as Vesting Tentative Tract Map No. 34430. You also indicated that the City Council may confirm the conclusions of that advisory opinion. Subsequent to that letter the City Council did confirm the conclusions and thereby granted to Rancho a vested right to complete its project. Since the time that the City Council confirmed your conclusion regarding the vested rights acquired by Rancho, Santa Clarita Company succeeded to Rancho's interest. Santa Clarita Company., along with its predecessors, developed the property to accommodate the residential development authorized by the tract by grading, constructing roads and installing utilities. In addition, Santa Clarita Company, along with its predecessors, have constructed approximately 63% of the residential units authorized by the tract approval. Santa Clarita Company now desires to sell 163 lots to an another builder and a question has arisen as to whether fees Carl Newton, Esq. June 25, 1993 Page 2 of 3 to fund fire protection facilities are assessable at the time that building permits are obtained. In our opinion, such fees are not assessable against development that has. obtained a vested right prior to the time the ordinance imposing those fees was adopted. We base our opinion on the language of the Supreme court of California in the case of Russ Building Partnership v. City and Count of San Francisco, (1988) 44 Ca1.3d 839; 750 P.2d 324. This case involved the development of a large commercial building in San Francisco -where the developer had expended substantial sums constructing the building and also incurred substantial obligations pursuant to contracts. After substantial funds were expended on the project, but before completion, the City of San Francisco passed a "Transit Impact Development Fee" requiring developers to pay fees at the time building permits were approved. The developer obtained his building permit prior to the time the ordinance -was adopted; however, the building permit provided notice that the developer may be subject to a transit fee in the event an ordinance were. adopted. In deciding the case, Associate Justice Broussard stated, "Plaintiffs had been issued building permits, had began construction, and had made a substantial financial commitment to their projects almost. two years before the City enacted the TIDF Ordinance. Thus, they had a vested right to complete the buildings and occupy them under the conditions contained in the permits. It is c7 aar rt, -4- ; � ,U_ conaition application of the latter enacted TIDF Ordinance to Plaintiffs would impair their vested rights and violate due process." (emphasis ours) We feel that this case is on all squares with the position of Santa Clarita Company in that Santa Clarita Company's predecessor acquired a vested right to complete its project, including the vested right to obtain building permits without further regulations being imposed. We do not believe the subsequent District Court of Appeal cases dealing with the issues of subsequently enacted fees would apply in Santa Clarita Company's case. That is, such cases as Carl Newton, Esq. June 25, 1993 Page 3 of 3 McLain Western v. County of San Diego (1983) 146 CA.3d 772, 194 CR 594, donotapply to Santa Clarita's case since the McLain case dealt with a fee that was imposed prior to a building permit being obtained; and, therefore, prior to the builder acquiring a vested right. Other cases such as McLain dealt with the same issues. However, in Santa Clarita Company's case, a vested right was obtained and therefore the language of Justice Broussard in the Russ case should apply. We would appreciate your reviewing this letter and your advisory opinion and advising us if you agree with our opinion. Your cooperation will be appreciated, and should you have any questions please do not hesitate to contact the undersigned. Very truly yours, SANDLER & BREIER By DAVID H. BREIER DHB/kl SUNNYGMVESTED AU I 3S,'. V'• $GAGE GGiv� 3�$i o..-vagp _0N 01 BT RKE. WILLIAMS & SOREITSEJT Wiz. so•_--. ]GaVJ avc�..=. .. _JOG LO$ ANGELES'. CAUpORNIG 90011 January 25, 1988 Mayor and Members of the City Council City of Santa Clarita 21021 Soledad Canyon Road, #101 Santa Clarita, CA 91351 Re: Rancho Financial Associates' Vested Rights Dear Mayor and Members of the City Council: 3.. '$ •JS GG This letter is in rezponse to a request for an advisory opinion as to whether the City may enter into an agreement with Rancho Financial Associates, Limited (Rancho) to affirm any vested right in the Pamplico and Open Crest Drive Project (Project). It is our opinion that the City Council cannot, and should not, enter into any agreement which purports to limit its police power to regulate land use, other than a development agreement pursuant to law. However, the City may by minute action confirm the contents of this letterwhich recites the applicable law and reaches the conclusion that Rancho has acquired a vested right. With this letter, the City attorney for the City of Santa Clarita advises the City that, based upon the statutory law, common law and information supplied to this office by the developer, Rancho has acquired a vested right in that portion of the Project which comes within the "Vested Tentative Map" and the remaining portions for which it has acquired building permits, and Rancho may proceed in 1 Mayor and Members of the City Council City of Santa Clarita January 25, 1988 Page 2 . substantial compliance with the Project. So long as Rancho proceeds with the Project as planned, the City may not withhold final map approval. Please note that the conclusions of this letter are particular to Rancho and this Project due to the unique nature and circumstances of the matter which is now before the.Council. The body of.this opinion describes that unique character. This question comes before the City Council because Rancho has entered into agreements with the William S. Hart Union School District (Hart) for the formation of a Community Facilities District (CFD) pursuant to the Mello Roos Community Facilities Act (Act). By this agreement, Rancho authorizes the CFD to issue bonds which will be paid by Rancho to Hart and the Saugus Union School District (Saugus). The money becomes owing to Hart and Saugus only if the 535 units of the Project are, in fact, constructed. Hart and Saugus will receive approximately $2,500.00 per unit, plus amounts imposed by the voters in the School Districts by election. The latter component is being contested by some parties and litigation is pending. However, if the bonds issue, Rancho has agreed to waive any rights to claim that the taxes have been illegally imposed. Rancho is not willing to proceed with the.bond issue unless it has reasonable assurances that the Project may continue to completion, and that the new City of Santa Clarita will not impair the.process by altering the applicable !`arid use regulations or refusing to grant final map approval. Therefore, the issues of vesting, whether by common law or statutory law, are crucial to the completion of the Project and subsequent school financing. To answer the question of vesting, one must look to acts which occurred prior to the incorporation of Santa Clarita. The County of Los Angeles approved and caused to be recorded Final Tract Maps 34614, 35572, 435171 43518, and 44378. These lots are designated for a total of 340 detached single family residential lots. The County of Los Angeles also approved Mayor and Members of the City Council City of Santa Clarita January 25, 1988 Page 3 "Vested Tentative Tract No. 34430," a portion of which has been recorded by the recordation of Tracts 43517, 43518 and 44378. In all, the County of.Los Angeles has previously approved, whether by Final Map, -or Vested Tentative Map, the construction of 535 single family residential dwellings. According to information supplied by Rancho, a Conditional Use Permit (CUP) was approved by the County which authorized construction of 469 residential dwelling units on land within Vesting Tentative Map 34430. Such approval was based upon specific site plans, grading plans, street scenes, park plans and renderings.of the homes to be built. Additionally, this office is informed that final grading plans and soil studies have been approved, grading permits have been issued for final grading of home sites, park sites, a school site, and roads. Building permits have been issued for the construction of 172 detached single family homes. Rancho contends that grading of the property is 75% complete, foundations for 45 homes have been laid, and five homes are in the framing stage. Additionally, this office' is informed that materials are in order and delivery is pending. Rancho has expended $7,600000.00 for grading and construction in reliance upon final construction approval by the County of Los Angeles. VESTED RIGHTS ._ A. Common Law California common law dictates that when an owner of property performs substantial work and incurs substantial liability in good faith reliance upon a permit issued by the government, that owner acquires a vested right to complete the project in accordance with the terms of the permit. Once a right vests, the government may not change its land use rules to prohibit the project which.was authorized by that permit. (Avco Community Develoers, Inc. v. South Coast Recional Commission, 17 Cal. 3 785 (197 ).) f Mayor and Members of the City Council City of Santa Clarita January 25, 1988 Page 4 _ Following from the Avco rule, the proper analysis to determine whether a right is vested, is to investigate (1) the type of permit issued by the County of Los Angeles, (2) the expenditures by Rancho, and (3) the good faith activity by both Rancho and the newly incorporated City of Santa Clarita. 1. Permit Requirement As for the government permission, there is some authority to indicate that unless all permits are received, the expenditure of funds will not vest any rights. (Billings v. California Coastal Commission, 103 Cal. -App. 3d 729 (1980).) However, the leading case in development of vested rights, Avco, holds a less absolute rule on what permits are req= ri ed. In that case, the property owner had obtained a zoning and subdivision map approval and was building the infra structure.for the project. Although no building permits had been issued, $2,750,000.00 had been expended and incurred. The California Supreme Court ruled that, by these facts, no matter how much money had been spent, the lack of any building permits disallowed a vested right, and the development could not proceed without California CoastalCommissionapproval. However, possibly crucial to the instant question, the Avco Court did not decide.whether the building permit is an.absolute necessity prior to rights vesting in all cases. The court stated: "[T]he commission concedes.that it does not deem a building permit to be an abs6lute requiremerit under all circumstances for acquisition of a vested right. It suggests that in rare situations the government may grant another type of permit, such as a conditional use permit, which affords substantially the same specificity and definition to a project.as a building permit, and that -in such instances a builder might acquire a vested right even though the document was not designated a building permit. We need not decide Mayor and Members of the City Council City of Santa.Clarita January 25, 1988 Page 5 whether a governmental approval of the type referred to by the commission constitutes an exception to the rule pronounced in Spindler and Anderson for the proposed exception would not apply here because none of the permitsobtained related to identifiable.buildings." (Avco, at 793-794.) Rancho has supplied this office with a copy of.CUP No. 85-147, which appears to have described the construction• and the entire project with some specificity. It is the opinion of this office that the CUP, coupled with the fact of the Vested Tentative Map, discussed below, satisfies the first prong of the vested rights test. However, this office advises that the Rancho situation is unique in that the CUP is accompanied by the Vested Tentative Map. No case has decided what level of specificity is required by the dicta in Avco. The CUP is important because lower courts have held that the approval of Tentative and Final Maps does not affect the ability of the government to regulate the issuance of subsequent building permits. In other words, a vested right may be denied based upon permits which are not building permits. However, the City cannot deny a Final Map when the Tentative Map has been approved and the builder has expended great sums of money io improve the land. In such a case, Final Map approval is a ministerial act. (Youngblood v. Board of Supervisors, 22 Cal. 3d 644 (1978).) As for the building permits on the properties which do not come within the Vesting Tentative Map 34430, is discussed below, the City of Santa Clari.ta has not reviewed the actual permits, but is prepared to rely upon the statements of Kenneth Battram of Rancho Financial Associates, Ltd. in a letter to the City Attorney; Carl K. Newton, dated January 130 1988. That letter stated as to the existence of building permits as follows: (1) With respect to Final -.Tract Map 34614, building permits were issued -by the County on September 30, 1987. J Mayor and Members of the City Council City of Santa Clarita January 25, 1988 Page 6 (2) With respect to Final Tract Map 35572, building permits were issued by the County on October 9, 1987. (3) With respect to Final Tract Map 43517, building permits were issued by the County on October 9, 1987. However, this tract is part of the Vesting Tentative Map, which is discussed below. (4) With respect to Final Tract Map 43518, building permits were issued by the County on December 1, 1987. However, this tract is also part of the Vesting Tentative Map. (5) With respect to Final Tract Map 44378, building permits were issued by the County on December 1, 1987. This tract is also part of the Vesting Tentative Map. Of the above tracts, this office would have a question as to the 66 units of Tracts 34614 and 35572. If, as stated by Mr. Battram, all of the permits are issued on these properties, then this first prong of the vested rights test is satisfied. However, if not all -of the permits for the complete residential units have been issued, the City is not prepared to conclude that all rights in the Project have vested. For example, if only grading permits have been issued, it is our opinion that there can only be a vested right to grade. Rancho, the possessor of the permits, is the party in the best position to evaluate whether or not this office would conclude that all rights have vested with respect to these 66 lots. 2. Substantial Expenditures As for the second prong of the analysis, the expenditures must be substantial. (Aires Development Company v. California coastal zone Conservation Commission 48 Cal. App. 3d 534 (1975).) "Su stantial' meth quantity and comparison. Therefore, even if $7,000,000.00 is not a large percentage of the total expenditure, that Mayor and Members of the City Council City of Santa Clarita January 25, 1988 Page 7 amount may still be determined significant. (Cooper v. County of -Los Angeles, 49 Cal. App. 3d 34 (1975) (Cooper I), Cooper v. County of Los Angeles, 69 Cal. App. 3d 529 (1977) (Cooper II).) Furthermore, the type of expenditure and its timing is important. Only that which is spent after gaining a permit should be considered. Additionally, only actual construction costs, and not development costs, such as land, options, and planning, should be considered. (Raley v. California Tahoe Regional Planning Agency, 68 Cal. App. 3d Based upon the foregoing law and information supplied by Rancho, it would appear that Rancho has expended substantial amounts of money in reliance upon permits issued to it by the County. 3. Good Faith Reliance Finally, the issue of vesting must be evaluated in the context of the.good faith actions of the developer. Judging from the case.established by Rancho, the developer appears to have proceeded based upon the assurances by the County, in that Rancho has not attempted to "hurry" the project passed the regulating power of Santa Clarita. Rancho has sought the legal Opinions of its attorney and attorneys representing Hart. Furthermore, Rancho now seeks assurances from the City. This opinion letter also raises the issue of the good faith of the City of Santa Clarita. Should the Council decide to confirm these conclusions, any action taken by -'he City in contravention of this opinion could be regarded as suspect. By this letter, if it is made available to the developer for the purposes of an assurance, the City.could succeed in vesting Rancho with more of a right than it would otherwise have. As you can see, our attempt to evaluate the vested right, and our conclusion that there is a vested right, could become a self-fulfilling prophecy. Mayor and Members of the City Council City of Santa Clarita January 25, 1988 Page 8 B. Statutory Law While the above material has reviewed the common law doctrine of vesting rights, there is also the question of the Vesting Tentative Map of Tract 34430. In 1984, the Legislature of California created a procedure for approving tentative maps which vest the'iight of the developer to proceed with the Project. (Government Code $§66498.1- 66498.8.) Agencies may now approve Vesting Tentative Maps, which allow the developer to go forward with substantial compliance with specified ordinances, policies and standards in effect at the time of approval. In the Rancho -situation, the ordinances and policies are those of the County of Los Angeles. Basically, the Vesting Tentative Map is the same as any other tentative map, except the words "Vesting Tentative Map" are printed on its face. (Government Code SS66424.5 and 66452.) Rancho has a map which is labeled "Vested Tentative Map" relating to Tract 34430 and a Conditional Use Permit 85-147, authorizing construction of 469 units on that Map. The slight variation in the language does not appear to effect the applicable legal conclusions. An exception to. the statute provides that a Vesting Tentative Map does not limit the ability of the City to impose reasonable conditions on subsequently issued permits, including building permits. (Government Code S66498.1(e).) However, as Mr. Battram states in his letter to the City Attorney, the permits have already been issued for that property.. If he is incorrect, some conditions may still be set by the City, so long as there is a direct relationship between the—burden and the benefit. Inasmuch as the statutory law is good law, and not unconstitutional under a theory that the police power of a local.government is given away, Rancho has a vested right as to that portion of the Project which comes within the Vested Tentative Map. As yet, no case has been adjudicated which raises the constitutionality of Government Code g$66498.1, et seq., and there is no reason for Santa Clarita to so challenge the law regarding this matter. Mayor and Members.of the City Council City of Santa Clarita January 25, 1988 Page 9 CONCLUSION In conclusion, it is the opinion of this office that Rancho has a vested right to proceed with that portion of the Project which is described within Vested Tentative Map 34430 and CUP 85-147. Furthermore, assuming that Rancho has obtained all building permits with respect to the 66 detached single family homes planned for Tracts 34614 and 35572, Rancho has expended a substantial amount of money in good faith reliance.upon those permits, and thereby has acquired a vested right to proceed with the Project in compliance with policies and ordinances as of the date the permits were issued. The City may confirm the conclusions.of this advisory opinion and issue the same to Rancho -in an effort to fulfill their request for assurances. If you have any questions regarding this matter, please do not hesitate to contact me. S erely, -Carl K. Newton of BURKE, WILLIAMS & SORENSEN CKN/TSM/LTR5454