McGibney v. County of San Luis Obispo CA2/6

Opinion

Filed 8/18/26 McGibney v. County of San Luis Obispo CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

PATRICK MCGIBNEY, et al., 2d Civ. No. B347592 (Super. Ct. No. 23CV-0763)

Plaintiffs and Respondents, (San Luis Obispo County)

v.

THE COUNTY OF SAN LUIS OBISPO, et al.,

Defendants,

ANASTASI DEVELOPMENT COMPANY, LLC,

Real Party in Interest and Appellant.

Anastasi Development Company, LLC, appeals the superior court’s judgment granting a peremptory writ of mandate. The writ directed the County of San Luis Obispo (County) to vacate its approval of appellant’s final map subdividing a 19.4-acre parcel into 98 lots, 97 of which would

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accommodate single-family residences. In a letter to this court dated December 10, 2025, County’s counsel stated that County “is taking a neutral position in this appeal and, for that reason, is not participating in this appeal.”

Shortly before appellant’s tentative map was due to expire, appellant submitted a final map that did not comply with one of the conditions of approval of the tentative map. Nevertheless, County determined that appellant had substantially complied with the condition. It approved the final map subject to a restrictive covenant providing that no lot could be developed until the condition had been satisfied.

We conclude County lacked the power to approve the final map because the condition had not been satisfied at the time of its approval. The Subdivision Map Act does not authorize a county to use a restrictive covenant to circumvent statutory deadlines. Accordingly, we affirm.

The Subdivision Map Act

“The Subdivision Map Act (Gov. Code, § 66410 et seq.) (the [Map] Act) is ‘ “the primary regulatory control” ’ governing the subdivision of real property in California.[1] [Citations.] The [Map] Act is ‘designed to promote orderly community developments and involves an application process that culminates in public hearings to determine whether a subdivision map will be approved.’ [Citation.] Under the [Map] Act, ‘the “ ‘[r]egulation and control of the design and improvement of subdivisions’ ” is vested in local agency legislative bodies such as a city council, which must adopt ordinances on the subject.’ ”

1 Unless otherwise stated, all statutory references are to

the Government Code.

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(Covina Residents for Responsible Development v. City of Covina (2018) 21 Cal.App.5th 712, 731.)

“ ‘The [Map] 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 approving agency . . . may grant or deny approval or conditionally approve a tentative map. [Citation] [¶] 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.’ ” (Bodega Bay Concerned Citizens v. County of Sonoma (2005) 125 Cal.App.4th 1061, 1067-1068 (Bodgea Bay).)

“Generally, a final map must be approved if it substantially complies with a previously approved tentative map [citation] and meets the requirements applicable to the subdivision when the tentative map was approved [citation].” (City of Goleta v. Superior Court (2006) 40 Cal.4th 270, 276; see Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1199 (Beck Development Co.) [“the time for the local agency to take action with respect to a proposed subdivision is when the tentative map is under consideration and, provided the final map is in substantial compliance with the tentative map and any conditions imposed on its approval, the approval of the final map becomes a ministerial act”].)

Factual and Procedural Background Vesting Tentative Tract Map 1646 (the Tentative Map) was approved in 1991 by operation of law. It authorized the subdivision of a 19.4-acre site into 100 lots. The site is in the unincorporated community of Los Osos and the Estero Planning Area.

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The Tentative Map included two conditions of approval: (1)

“The project shall connect to a community-wide sewer system approved by the Regional Water Quality Control Board. The Applicant shall not file the final map unless and until a community-wide sewer system has been constructed and is available for the project to connect to.” (2) “Prior to filing the final map, the Applicant will be required to demonstrate an adequate water supply consistent with the County policies in effect at the time the final map is filed.” The first condition was referred to as “Additional Project Description 1” (APD 1). The second condition was referred to as “Additional Project Description 2” (APD 2).2 The two conditions “helped mitigate the concerns with the project at that time − namely, the issue of overconcentrated septic systems and groundwater quality.” A 1990 Department of Planning and Building staff report warned, “The proposed subdivision is likely to cause serious public health problems because the method of sewage treatment (a site contained sewage collection system with seepage pits) will not remove nitrates and will further worsen the nitrate problems in the ground water.”

The original expiration date of the Tentative Map was June 14, 1993. After numerous extensions, the Tentative Map was due

2 A May 2023 County Planning Commission staff report

noted: “Since the vesting tentative map was approved by operation of law it does not have conditions of approval. The subdivider included ‘project features’ as part of the project description to facilitate recordation of a final map . . . .” For all intents and purposes, the “project features” operated as conditions of approval. Accordingly, for ease of discussion, we refer to APD 1 and APD 2 as conditions of approval.

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to expire on December 14, 2023. No further extensions were permissible.3 APD 1 had not been satisfied. Nevertheless, appellant submitted its Final Map for processing.

In October 2023 County’s Public Works Department prepared a staff report for County’s Board of Supervisors (the Board). The report stated: “[S]ewer service is physically available, however, it is not presently legally available because of a regulatory condition that was placed by the [California Coastal Commission (Coastal Commission)] in 2010.”4 (Italics added.)

The staff report explained: the project’s sewer system will be connected to the Los Osos Water Recycling Facility (LOWRF). “[T]he LOWRF has been constructed, is operational and there are no physical limitations to the development connecting to the facility. In fact, the existing home located on the project site has a sewer connection and receives sewer service.” But “[w]hen the County obtained its Coastal Development Permit [] from the California Coastal Commission [] in 2010 for the LOWRF, . . . the [Coastal Commission] included Condition 6 which prohibits the

3 The superior court observed, “Both sides agree that the

ultimate unextendible deadline for final map approval was December 14, 2023.”

4 “ ‘The [California] Coastal Act [of 1976] created the

California Coastal Commission . . . .’ [Citation.] [¶] Under the Coastal Act, the Commission is required to protect a coastal zone’s delicately balanced ecosystem.” (Hagopian v. State of California (2014) 223 Cal.App.4th 349, 361.) “California courts have consistently recognized the supremacy of the Coastal Act over matters of local concern . . . .” (Redondo Beach Waterfront, LLC v. City of Redondo Beach (2020) 51 Cal.App.5th 982, 998.)

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County from connecting the LOWRF to any undeveloped lots unless and until the [Coastal Commission] approves an amendment to the Estero Area Plan to address longstanding concerns over water and sensitive habitat, among other things.”5 Because the Coastal Commission had not approved the amendment, it was not feasible for appellant to satisfy APD 1 before the expiration of the Tentative Map on December 14, 2023.

The staff report continued: “[The] Public Works [Department] has issued [appellant] a conditional will-serve letter . . . for sewer service indicating that the LOWRF has the capacity to serve the development pending the removal of condition 6 by the [Coastal Commission], which is anticipated to occur in the foreseeable future.” “Since [appellant] has met the conditions of approval, but still has policy-related constraints related to the connection of the LOWRF (from the existence of Condition 6), a Restrictive Covenant has been proposed to address this circumstance. The Restrictive Covenant ensures that no construction . . . will take place until the restrictions . . . for the wastewater treatment system are lifted and will help address any concerns that the [Coastal Commission] has regarding the County’s compliance with Condition 6. Therefore,

5 Condition 6 provides: “Wastewater service to undeveloped properties within the service area shall be prohibited unless and until the Estero Area Plan is amended to identify appropriate and sustainable buildout limits, and any appropriate mechanisms to stay within such limits, based on conclusive evidence indicating that adequate water is available to support development of such properties without adverse impacts to ground and surface waters, including wetlands and all related habitats.”

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the site shall remain in the condition it is in today until Condition 6 is lifted by the [Coastal Commission].”

The staff report concluded with the following statement:

“Because the underlying purpose of condition 1 [APD 1] was to ensure that there was a community wide sewer system as opposed to septic systems, and because there is a community wide sewer system that can connect to the development once Condition 6 is lifted, staff has determined that [appellant] has substantially complied with [APD 1].” (Italics added.)

On October 31, 2023, the Board approved the Final Map for Vesting Tentative Tract Map 1646 (the Final Map) “subject to the recordation of a Restrictive Covenant” that “no lot within the Subdivision . . . may be developed until Special Condition 6 has been satisfied to the approval of the California Coastal Commission.” The “recitals,” i.e., introductory paragraphs, of the restrictive covenant provide in part, “County has determined APD Nos. 1 and 2 . . . have been satisfied insofar as to allow a final map to [be] recorded . . . subject” to the restrictive covenant. The Final Map authorized a subdivision consisting of 98 lots, two lots fewer than the 100 lots authorized by the 1991 Tentative Map. Three supervisors voted in favor of approval of the Final Map, and two supervisors voted against it.

In December 2023 respondents filed a petition for a peremptory writ of mandate. They claimed “the County abused its discretion by approving the Project because [] the conditions precedent to the approval and filing of a final map were not satisfied . . . .”

In its ruling on the petition, the superior court noted:

“[T]he project has been on hold for more than 30 years while the County sought answers to water and sewer problems in the

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coastal community. Finally, in October 2023, faced with a nonextendable deadline under the state’s Subdivision Map Act, but still without California Coastal Commission approval for hookups to a new sewer treatment plant, the County approved a final map for the development.” “Months later [on June 13, 2024,] the Coastal Commission approved an amended Estero Area Plan that was adopted by the County on October 29, 2024, finally clearing the way for sewer connections to undeveloped lots in Los Osos.” “[B]oth sides agreed that Special Condition 6 has been lifted and sewer connections are now available to the 98 lots in the Anastasi Development.”

The superior court ruled that APD 1 had not been satisfied because “no sewer connection was legally available to the Anastasi Development on October 31, 2023,” when County approved the Final Map. Therefore, the court issued a writ of mandate “directing the County to vacate its approval of the Anastasi Development’s final map.” On the other hand, the court concluded that County had not “abused its discretion in finding that there is enough water to serve the subdivision and that APD 2 had been met at the time the final map was approved.”

The Case is Not Moot

Appellant claims the case is moot because “Special Condition 6 has been satisfied and the prohibition on new development connections to the LOWRF has ended.” “[A] case becomes moot when a court ruling can have no practical effect or cannot provide the parties with effective relief.” (Lincoln Place Tenants Assn. v. City of Los Angeles (2007) 155 Cal.App.4th 425, 454.)

Appellant contends: “[T]here is no effective relief on Respondents’ claim because [if this court upholds the granting of

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a peremptory writ] the end result on remand to the County is a legally mandated reapproval of the Final Map.” “[T]he [County’s] Subdivision Ordinance . . . grants [appellant] the right to cure the grounds on which the Board disapproves the Final Map.” Appellant is referring to County Code section 21.06.050(b), which provides: “The board of supervisors shall approve the map if it is determined to be in conformity with the requirements of this title and the Subdivision Map Act. The board of supervisors shall disapprove the map if it is determined to be not in conformity with this title or the Subdivision Map Act, and shall advise the subdivider of its disapproval and the reason or reasons therefor. Within thirty days, the subdivider may file with the county surveyor a map altered to conform to the requirements of the board of supervisors and to the procedures specified under this title.”

Appellant argues: “The writ [issued by the superior court]

will require the Board to vacate the Final Map approval based on the . . . court’s ruling regarding the effect of Special Condition 6 on APD-1 compliance. [County’s] Subdivision Ordinance will require the Board to afford [appellant] an opportunity to cure the reason for denying the Final Map approval. The resolution of Special Condition 6 removes the only reason the Board would have to deny the Final Map approval pursuant to the writ and the [superior] court’s decision. Under the Map Act, the Board would be required to reapprove the Final Map—and thus no effectual relief would be granted to [respondents] on their claim. [¶] Since the only grounds on which the [superior] court entered judgment in [respondents’] favor is moot, this Court should reverse the [superior] court’s judgment and direct [it] to enter judgment in favor of the County and [appellant].”

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The relevant provision of the Map Act is section 66452.6, subdivision (d) (section 66452.6(d)). Based on the statute’s first sentence, it would appear that the expiration of the Tentative Map on December 14, 2023, rendered that map void so that appellant must file a new tentative map irrespective of County Code section 21.06.050(b). The first sentence of section 66452.6(d) provides: “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.” (See 7 Miller & Starr, Cal. Real Estate (4th ed. 2025) § 20:18 [“When [the tentative map] expire[s], the tentative map is void and there can be no further proceedings for the division of the property pursuant to the expired map unless another [tentative] map is filed. . . . A final map cannot be filed after the tentative map has expired”]; Bodega Bay, supra, 125 Cal.App.4th at p. 1071 [the first sentence in subdivision (d) of section 66452.6, prohibits the subdivider from proceeding with the project after the tentative map has expired. “The directive that ‘[t]he expiration of the approved or conditionally approved tentative map shall terminate all proceedings’ presumably precludes the subdivider from filing not only a final map, but also a request for an extension of the tentative map or a request for a stay when the tentative map is no longer effective”]; Friends of Westhaven & Trinidad v. County of Humboldt (2003) 107 Cal.App.4th 878, 882.)

But in its reply brief appellant asserts: “[T]he first sentence is not the relevant part of the statute. The relevant part of the statute is in the second sentence . . . .” The second

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sentence of section 66452.6(d) provides, “Once a timely filing [of the final map] 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.” (Italics added.) The third sentence of section 66452.6(d) provides, “Delivery to the county surveyor or city engineer shall be deemed a timely filing for purposes of this section.”

Appellant argues: “Once a final map is delivered to the County surveyor [before the expiration of the tentative map] (as in this case), [the second sentence of] Section 66452.6(d) allows the County to act on the final map after the tentative map expiration date, without limitation.” “The County would continue processing the Final Map that was delivered to the County Surveyor before the Tentative Map expired. Under County Code Section 21.06.050(b), if the Board disapproves the Final Map, the Board is required to communicate its reasons to [appellant], who then has 30 days to file an ‘altered’ map that conforms to the Board’s requirements. In this case, [appellant] does not even need to file an altered map because the only issue is the resolution of Special Condition 6.” “The net result is that the County now has a ministerial duty to approve the Final Map . . . . Issuing a writ will not change the outcome, which is why this case is now moot.”

In order for County to act on the Final Map after the expiration of the Tentative Map, the Final Map must have been “timely” filed, i.e., filed before the expiration of the Tentative Map. (§ 66452.6(d).) As we explain in detail below, the Final Map could not have been timely filed because APD 1 prohibited its filing. APD 1 provided, “The Applicant shall not file the final

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map unless and until a community-wide sewer system has been constructed and is available for the project to connect to.” (Italics added.) Since Special Condition 6 had not been satisfied, the sewer system was unavailable when appellant purported to file its final map.

We reject appellant’s claim that, “[u]nder the third sentence of Section 66452.6(d), the Final Map was timely filed when it was delivered to the county surveyor months before the Tentative Map expiration date.”6 The court rejected a similar claim in Ailanto Properties, Inc. v. City of Half Moon Bay (2006) 142 Cal.App.4th 572, 600. The court reasoned, “[I]f 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.” (Ibid.) Such an interpretation “would frustrate the manifest purposes of the legislation.” (Ibid.)

Accordingly, the case is not moot.

6 Appellant alleges, “[T]he County Surveyor determined

and certified on the Final Map that the map substantially complied with the Tentative Map . . . .” Appellant does not cite any portion of the record in support of this allegation. “California Rules of Court, rule 8.204(a)(1)(C) states that each appellate brief must ‘[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears.’ ” (Wentworth v. Regents of University of California (2024) 105 Cal.App.5th 580, 595.) “ ‘[W]e may disregard factual contentions that are not supported by citations to the record . . . .’ ” (County of Sacramento v. Singh (2021) 65 Cal.App.5th 858, 861.)

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Standard of Review

“ ‘[T]he scope and standard of our review are the same as the trial court’s, and the lower court’s findings are not binding on us. . . .’ ” (Fat v. County of Sacramento (2002) 97 Cal.App.4th 1270, 1277.) “The appellate court . . . does not review the actions or reasoning of the superior court, but rather conducts its own review of the administrative proceedings to determine whether the superior court ruled correctly as a matter of law.” (Hongsathavij v. Queen of Angels/Hollywood Presbyterian Medical Center (1998) 62 Cal.App.4th 1123, 1137; see also Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 427 [“[t]he appellate court reviews the agency's action, not the trial court's decision”].)

“[T]he standard for review of agency decisions in connection with regulatory approvals is generally one of abuse of discretion. ‘ “Abuse of discretion is established if the [agency] has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.” . . .’ ” (Environmental Protection Information Center v. California Dept. of Forestry & Fire Protection (2008) 44 Cal.4th 459, 478; see also Code Civ. Proc., § 1094.5, subd. (b).) In its ruling the superior court stated, “The parties agree that the County's actions are reviewed for abuse of discretion. (Code Civ. Proc., § 1094.5(b).)”

The Final Map Did Not Substantially Comply with the Tentative Map Section 66474.1 provides, “A legislative body shall not deny approval of a final or parcel map if it has previously approved a tentative map for the proposed subdivision and if it finds that the final or parcel map is in substantial compliance with the

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previously approved tentative map.” The Board did not expressly find that the Final Map substantially complied with the Tentative Map. In its ruling the superior court concluded, “[T]he County staff report under consideration by the Board determined ‘that [appellant] substantially complied with APD 1’ and the Board’s finding of substantial compliance can be implied by its approval of the final map.” We agree. The restrictive covenant stated that “County has determined APD Nos. 1 and 2 . . . have been satisfied insofar as to allow a final map to [be] recorded . . . subject” to the restrictive covenant.

Appellant contends, “[T]he Board properly found the Final Map substantially complied with APD-1.” (Bold and capitalization omitted.) As to this issue, the underlying facts are undisputed. Accordingly, this is a question of law that we independently review. (Fiorentino v. City of Fresno (2007) 150 Cal.App.4th 596, 602 [“We independently review questions of law, which include issues of (1) statutory construction and (2) the application of that construction to a set of undisputed facts”].)

The “substantial compliance doctrine . . . is ‘commonly understood to mean “compliance with the substantial or essential requirements of something (as a statute or contract) that satisfies its purpose or objective even though its formal requirements are not complied with.” ’ [Citation.] ‘ “Where there is compliance as to all matters of substance[,] technical deviations are not to be given the stature of noncompliance. [Citation.] Substance prevails over form.” ’ ” (Manderson-Saleh v. Regents of University of California (2021) 60 Cal.App.5th 674, 701.)

The Final Map’s failure to comply with APD 1 was not a technical deviation. The superior court reasoned: “APD 1 requires, in no uncertain terms, that ‘[t]he Applicant shall not file

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the final map unless and until a community-wide sewer system has been constructed and is available for the project to connect to.’ . . . It does not . . . allow final map approval if the County and the developer have a good faith belief that [the] sewer connection will be available in the near future.” “[Appellant] could not secure extensions of its vesting tentative rights simply by filing documents in late 2023 that predicted the tentative map conditions would be fulfilled in the future – even if those predictions were later shown to be accurate.”

The superior court continued: “[A]s a backup position, the County and the developer argue that the restrictive covenant agreement saves the final map by ensuring that no development will take place on any of the lots until sewer connections are available. There is no authority, however, for the use of restrictive covenants to toll the Subdivision Map Act deadlines. Allowing this type of workaround would render the Subdivision Map Act timeline meaningless . . . .”

We agree with the above reasoning of the superior court.7 The unambiguous language of APD 1 means what is says. (Trans-Action Commercial Investors, Ltd. v. Jelinek (1997) 60 Cal.App.4th 352, 363 [“If there is no ambiguity in the language of a provision, we must presume the provision means what it says; we will not resort to more remote indicia of underlying intent”].)

7 We disagree with the superior court’s statement that

“[a]llowing this type of workaround would . . . permit a developer to secure tentative vesting rights in perpetuity simply by agreeing to restrictive covenants that mirror the conditions of the tentative vesting map.” (Italics added.) After the final map has been recorded, the rights conferred by a vesting tentative map are subject to statutory time limits. See footnote 9 at p. 18, post.

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The Final Map cannot be filed “until a community-wide sewer system . . . is available for the project to connect to.” (Italics added.) Such a sewer system was not available when the Board approved the Final Map. A sewer system cannot be deemed “available” if, as County’s staff report recognized, “it is not presently legally available because of a regulatory condition that was placed by the [Coastal Commission] in 2010.” (Italics added.) If something is not legally available, then it is unavailable. The restrictive covenant acknowledges that, “with the exception of the one [existing] single family residence” in the subdivision, “County cannot provide wastewater service to any lots within the Subdivision” until Special Condition 6 has been satisfied. (Italics added.)

We reject appellant’s claim that courts must defer to the Board’s interpretation of APD 1 and its decision that the Final Map substantially complied with APD 1 as so interpreted. Because APD 1 means what it says, there is nothing further to be interpreted. The issue is whether the Final Map substantially complied with APD 1 within the meaning of section 66474.1. This is a legal question that courts decide. (Eith v. Ketelhut (2018) 31 Cal.App.5th 1, 4 [“Courts decide legal questions].”) “[A]gency interpretations [of a statute] are not binding or necessarily even authoritative. To quote the statement of the Law Revision Commission in a recent report, ‘The standard for judicial review of agency interpretation of law is the independent judgment of the court, giving deference to the determination of the agency appropriate to the circumstances of the agency action.’ ” (Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 8.)

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For approximately 30 years, extensions of the Tentative Map froze in place the ordinances, policies, and standards in effect when the Tentative Map application was determined to be complete. (Hock Investment Co. v. City and County of San Francisco (1989) 215 Cal.App.3d 438, 447, fn. 4 [“Because the final map must be approved if it substantially complies with the tentative map, regardless of changes in the law [citations], [the Map Act] ‘freezes in place, at the time the tentative map application is considered complete, the law applicable to subdivision approvals . . . and gives the subdivider a form of vested right’ ”]; accord, Kaufman & Broad Central Valley, Inc. v. City of Modesto (1994) 25 Cal.App.4th 1577, 1588.)8 The statutory deadline for filing the final map sets a firm time limit to the “freeze.” A time limit is necessary to motivate developers to work diligently toward satisfying the conditions of the tentative map. It is also necessary because planning, safety, and environmental policies, as well as zoning laws, building codes, and community needs, are not static. (See Hill v. City of Clovis (2000) 80 Cal.App.4th 438, 447 [“If there has been a lapse

8 See section 66498.1, subdivision (b): “When a local agency

approves or conditionally approves a vesting tentative map, that approval shall confer a vested right to proceed with development in substantial compliance with the ordinances, policies, and standards described in Section 66474.2.” (Italics added.) Section 66474.2, subdivision (a) provides, “[I]n determining whether to approve or disapprove an application for a tentative map, the local agency shall apply only those ordinances, policies, and standards in effect at the date the local agency has determined that the application is complete pursuant to Section 65943 of the Government Code.”

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of time between the approval of the tentative map and the final map, and the tentative map is allowed to expire, changes in zoning laws or legislative policies might mean significant burdens or barriers for the subdivider”].) If the Map Act were construed to allow a County to proceed as the Board proceeded here, developers could evade a final map deadline and continue the “freeze” by agreeing to an appropriate restrictive covenant.9 Appellant claims it “waived its vested rights in the Restrictive Covenant.” The claim is based on section 4 of the restrictive covenant, which provides, “[A]ny ministerial or discretionary permit issued by the County relating to the Property, including, but not limited to, coastal development permits and building permits for the individual residences for each lot within the Subdivision, shall be subject to the rules, regulations and laws in effect at the time the permit is issued,

9 The “freeze” generally cannot continue for more than two

years after the recording of the final map. (See § 66498.5, subd. (b) [“The rights conferred by a vesting tentative map . . . shall not be less than one year or more than two years beyond the recording of the final map”].) But where, as here, a tentative map was issued for a subdivision of single-family residential units, “during the five-year period following recordation of the final map” the county “shall not require as a condition to the issuance of any building permit or equivalent permit . . . conformance with or the performance of any conditions that the . . . county could have lawfully imposed[, but had not imposed,] as a condition to the previously approved tentative . . . map.” (§ 65961.) There are exceptions to this statutory prohibition. (See Id., subd. (a)-(c).) The restrictive covenant provides that, “[w]ith the exception of the one single-family residence located” in the subdivision, appellant “waives any rights or claims under . . . § 65961 and related case law . . . .”

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including, without limitation, inclusionary housing requirements and any requirements set forth by any adopted Los Osos Community Plan and/or Los Osos Habitat Conservation Plan as applicable.” (Italics added.)

“The waiver of a legal right cannot be established without a clear showing of intent to give up such right. [Citation.] The burden is on the party claiming the waiver ‘to prove it by evidence that does not leave the matter doubtful or uncertain and the burden must be satisfied by clear and convincing evidence that does not leave the matter to speculation.’ ” (Brookview Condominium Owners' Assn. v. Heltzer Enterprises-Brookview (1990) 218 Cal.App.3d 502, 513.)

Appellant has failed to prove by clear and convincing evidence that it waived its vested right to Map Act protections that “freeze in place those ‘ordinances, policies and standards in effect’ at the time the vesting tentative map application [was] deemed complete.” (Bright Development v. City of Tracy (1993) 20 Cal.App.4th 783, 793.) Appellant merely agreed that, as to any permit issued by the County (not by any other governmental entity), it would abide by the rules, regulations and laws in effect at the time the permit was issued. This was not a major concession. (See Avco Community Developers, Inc. v. South Coast Regional Com. (1976) 17 Cal.3d 785, 795 [it is a “general rule that a builder must comply with the laws which are in effect at the time a building permit is issued”]; Beck Development Co., supra, 44 Cal.App.4th at p. 1199 [“The filing of the final map establishes the subdivision, but in order to build upon the land the developer must still comply with any applicable requirements for obtaining building permits or other permits”].) The alleged waiver would not apply to County’s denial, instead of issuance, of a permit.

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Appellant could argue that County’s denial of a permit violated its vested rights if it would have been entitled to the permit when the Tentative Map application was deemed complete.

Even if appellant had waived all of its vested rights under the Map Act, for the reasons previously discussed County would still not have been empowered to approve the Final Map subject to the recording of the restrictive covenant. Thus, the Board abused its discretion in approving the Final Map. “The legislative body shall . . . approve the map if it conforms to all the requirements of this chapter . . . . If the map does not conform, the legislative body shall disapprove the map.” (§ 66458, subd. (a).)

The Housing Accountability Act Appellant contends: “[T]he Board properly approved the Final Map under the Housing Accountability Act [(HAA, Gov. Code, § 65589.5)].” (Bold and capitalization omitted.) Appellant goes even further, asserting that “the Board was required to approve the Final Map under the HAA.” Appellant argues, “[T]he trial court failed to address that the HAA limited the Board’s discretion to disapprove the Final Map . . . unless the Board made written findings (which the Board did not make), supported by a preponderance of the evidence (which does not exist in the record), that approving the Final Map would have a specific adverse health or safety impact that could not be satisfactorily mitigated or avoided. ( . . . § 65589.5, [subds.] (j)(1)(A) & (B).)”

The HAA was “enacted in 1982 with the goal of ‘meaningfully and effectively curbing the capability of local governments to deny, reduce the density for, or render infeasible housing development projects.’ (§ 65589.5, subd. (a)(2)(K).)”

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(California Renters Legal Advocacy & Education Fund v. City of San Mateo (2021) 68 Cal.App.5th 820, 830-831.) “[T]he HAA restricts the ability of local governments to deny an application to build housing if the proposed project complies with general plan, zoning, and design review standards that are ‘objective.’ ” (Id., at p. 831.)

“ ‘A judgment or order of the lower court is presumed correct’ ” and “ ‘error must be affirmatively shown. . . .’ ” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564) The appellant “bears the burden of showing error.” (Frank and Freedus v. Allstate Ins. Co. (1996) 45 Cal.App.4th 461, 474.) Thus, to prevail on this issue appellant must show that (1) the HAA authorized/required County to approve the Final Map even though it did not substantially comply with the Tentative Map, and (2) the HAA trumps the Map Act.

Appellant has failed to carry its burden. It cites no pertinent authority in support of its position. “The Subdivision Map Act . . . ‘is “the primary regulatory control” governing the subdivision of real property in California.’ ” (Cox v. City of Oakland (2025) 17 Cal.5th 362, 368, italics added; accord, Gardner v. County of Sonoma (2003) 29 Cal.4th 990, 996-997.) “When ‘a landowner wishes to subdivide its property, . . . the landowner must comply with the Subdivision Map Act. . . .’ ” (Van’t Rood v. County of Santa Clara (2003) 113 Cal.App.4th 549, 564.)

Disposition

The judgment is affirmed. Respondents shall recover their costs on appeal.

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NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

CODY, P. J.

BALTODANO, J.

Craig van Rooyan, Judge

Superior Court County of San Luis Obispo

______________________________

Cox, Castle & Nicholson and Alexander M. DeGood, Eric J.

Cohn; Lamport Law and Stanley W. Lamport, for Real Party in Interest and Appellant.

Law Offices of Babak Naficy and Babak Naficy, for Plaintiffs and Respondents.