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Procopio Triumphs Before San Diego City Council

San Diego, CA – On September 9th, the San Diego City Council, by a vote of 6-2, approved applications to stay the lives of 29 tentative subdivision maps for condominium conversion projects that had been caught up in litigation challenging those projects. The 29 projects, which range in size from eight to 48 units, are located in a variety of neighborhoods around San Diego. The litigation stays extend the lives of these maps from three to 25 months, depending on how long each project was subject to judicial challenge. The Council approved the applications despite the objections of Development Services staff.

The 29 projects that were granted relief were among hundreds of projects challenged by four lawsuits filed against the City by two environmental groups claiming that the City's approval of condo conversion projects violated the California Environmental Quality Act. The 29 projects had settled out of the litigation and sought relief from the City under a provision of the Subdivision Map Act, allowing local governments to stay the lives of tentative maps subject to judicial challenge. The State Legislature authorized such relief in 1979, when it acknowledged that those holding tentative subdivision maps caught up in litigation will not invest in the steps necessary to obtain their final subdivision maps while litigation is pending, because if such litigation is successful, the maps will be void. Staying the running of the life of these maps for the period they are subject to judicial challenge avoids "punishing" developers for attacks on city approval of their projects.

The Development Services staff opposed the applications, on grounds that (1) the applicants had not applied for extensions under general provisions of the Subdivision Map Act and (2) the courts had not issued an order preventing the applicants from obtaining their final maps while the litigation was pending.

Evelyn F. Heidelberg, senior counsel with Procopio, Cory, Hargreaves & Savitch LLP, represented the applicants and convinced City Council that the staff's reasons for recommending denial of the applications were without merit. She argued that staff's recommendation would require each applicant to file a separate application, which would cost each applicant thousands of dollars and months of further delay, and that since each application would be made on the same grounds, there would be no value conveyed by requiring her clients to submit 29 separate applications. Ms. Heidelberg argued that staff's recommendation seemed to be "make work," designed to do little more than generate fees for the City when Development Services staff may not be fully utilized. She further argued that relief under the litigation stay provision of the Subdivision Map Act does not require that there have been an injunction issued preventing a project from moving forward to obtain a final map. The Legislature recognized that no reasonable person would spend money unless and until the litigation ends and the tentative map is preserved. City Council agreed, with several members noting that the additional costs imposed by the staff's recommended approach would do nothing but increase the cost of housing at a time when the City is doing everything it reasonably can to address its affordable housing problem. "Council's action granting the litigation stays avoids imposing unnecessary additional costs on my clients, who have already endured the costs of defending and settling the lawsuits," said Heidelberg. "The additional costs which would have been imposed by the City staff's recommended approach would have been passed on to the purchasers of these condo units," she noted. "We are pleased that Council recognized this and took action consistent with its affordable housing objectives, as condo conversions represent a principal source of entry level for-sale housing for many San Diego families," Heidelberg added.

With the Council's action, the 29 projects now have additional time in which to get their final subdivision maps. Their owners will not be forced to make significant investments immediately to get their final maps before the prior, near-term expiration dates of their tentative maps, but rather can wait until housing market demand increases.

About Procopio, Cory, Hargreaves & Savitch LLP

Procopio, Cory, Hargreaves & Savitch LLP was established in 1946 and is now one of the largest business law firms in the San Diego region. With offices in San Diego and Carlsbad, Procopio’s more than 110 experienced attorneys provide comprehensive legal services in the areas of climate change and sustainability; construction; corporate and securities; emerging growth and technology; employment, labor and benefits; environmental, land use and governmental affairs; finance, restructuring and bankruptcy; health care; intellectual property; international law; litigation; Native American law; patent prosecution and counseling; real estate; tax; trademarks and copyrights; and trust, estate and probate. Through its membership in LawExchange International and Legal Netlink Alliance, Procopio's ability to assist clients reaches around the world.