The newly incorporated City of West Hollywood (City) sought to impose a permit requirement on condominium developers who had complied with the state scheme regulating condominium conversions, but who had not as yet sold any condominium units or undertaken any renovation. The majority frustrate the City's efforts to set land use policy by denying it the authority to regulate the change of use involved in a condominium conversion project, even though the developers failed to demonstrate any detrimental reliance on the final subdivision map approval they had obtained. Thus, the majority confer on those who plan condominium conversions without new construction a vested right to develop once they obtain final map approval, in flat contradiction of the vested rights doctrine which has been settled in this state for many years. Accordingly, I dissent.
It is well established that a municipality has authority to regulate land use within its boundaries unless the state has preempted that authority. (Cal. Const., art. XI, § 7; Gov. Code, §§ 66427, 66427.1, subd. (e), 66427.4, 65850.) The municipality's police power includes authority to regulate the conversion of rental housing to condominiums. (Griffin Development Co. v.City of Oxnard (1985) 39 Cal.3d 256, 263 [217 Cal.Rptr. 1,703 P.2d 339].) Municipal authority over condominium conversions is not preempted by the Subdivision Map Act (Map Act). (SantaMonica Pines, Ltd. v. Rent Control Board (1984) 35 Cal.3d 858, 869 [201 Cal.Rptr. 593, 679 P.2d 27].) The Map Act, in fact, was not intended to occupy the field of condominium *Page 1196 conversion regulation. (Griffin Development Co. v. City ofOxnard, supra, 39 Cal.3d at p. 262.)
We have made it clear that the requirements of the Map Act do not preempt local ordinances that require a condominium conversion use permit substantially the same as the permit requirement at issue here. (Griffin Development Co. v. City ofOxnard, supra, 39 Cal.3d at pp. 260-262.) The majority's assertion that the Map Act provides "the" requirements applicable to condominium conversion flouts our decisions in GriffinDevelopment and Santa Monica Pines and improperly denies the municipality's authority to regulate land use within the community.
Local governments planning for the future cannot be unduly hampered by land use decisions of the past. (Avco CommunityDevelopers, Inc. v. South Coast Regional Com. (1976) 17 Cal.3d 785, 797-798 [132 Cal.Rptr. 386, 553 P.2d 546].) Thus, new land use regulations normally apply to development proposals that are already in the administrative pipeline, unless the developer can show a vested right to proceed with development free of the new regulations. The requirement that the developer show a vested right to proceed with the development before being free of newly enacted local land use regulations has long been established. (See id. at pp. 795-796; Russian Hill Improvement Assn. v.Board of Permit Appeals (1967) 66 Cal.2d 34, 40, 45-46 [56 Cal.Rptr. 672, 423 P.2d 824]; Curtin Merritt, Cal. Subdivision Map Act Practice (Cont.Ed.Bar 1987) § 6.28, p. 146; Hagman et al., Cal. Zoning Practice (Cont.Ed.Bar 1969) § 5.53, p. 169; Williams, Cal. Zoning Practice (Cont.Ed.Bar Supp. 1989), §§ 5.53-5.60, pp. 174-184; Wagner et al., Cal. Condominium and Planned Development Practice (Cont.Ed.Bar 1984) § 2.5, pp. 50-51, id. (Cont.Ed.Bar Supp. 1989) § 2.5, pp. 30-33; 1 Hanna, Cal. Condominium Handbook (2d ed. 1986) § 16.30, pp. 549-552; see also Russ Bldg.Partnership v. City and County of San Francisco (1988)44 Cal.3d 839, 845-846 [244 Cal.Rptr. 682, 750 P.2d 324]; PardeeConstruction Co. v. City of Camarillo (1984) 37 Cal.3d 465, 472, fn. 9 [208 Cal.Rptr. 228, 690 P.2d 701]; LeavenworthProperties v. City and County of San Francisco (1987) 189 Cal.App.3d 986, 994 [234 Cal.Rptr. 598]; Raley v. CaliforniaTahoe Regional Planning Agency (1977) 68 Cal.App.3d 965, 975 [137 Cal.Rptr. 699]; Kappadahl v. Alcan Pacific Co. (1963)222 Cal.App.2d 626, 633 [35 Cal.Rptr. 354], disapproved on other grounds in Topanga Assn. for a Scenic Community v.County of Los Angeles (1974) 11 Cal.3d 506, 517, fn. 16 [113 Cal.Rptr. 836, 522 P.2d 12].)
The vested rights doctrine is based on the doctrine of equitable estoppel. (Avco Community Developers, Inc. v. SouthCoast Regional Com., supra, 17 Cal.3d at p. 793.) The doctrine is not to be applied against the government "except in unusual cases where necessary to avoid grave or manifest injustice" *Page 1197 and with due consideration for any effect of an estoppel on the achievement of public policy goals. (Hock Investment Co. v.City and County of San Francisco (1989) 215 Cal.App.3d 438, 449 [263 Cal.Rptr. 665]; see City of Long Beach v. Mansell (1970) 3 Cal.3d 462, 496-497 [91 Cal.Rptr. 23, 476 P.2d 423];Raley v. California Tahoe Regional Planning Agency, supra,68 Cal.App.3d 965, 975; Kappadahl v. Alcan Pacific Co., supra,222 Cal.App.2d 626, 633.)
Unless some vested right is involved, a developer has no right to demand that the law in effect at the time of his or her first application with the municipality be applied to the ultimate decision whether to permit subdivision, building, or conversion. (Santa Monica Pines, Ltd. v. Rent Control Board, supra,35 Cal.3d 858, 867 [tentative subdivision map act approval no bar to application of later rent control ordinance to developer's condominium conversion]; Avco Community Developers, Inc. v.South Coast Regional Com., supra, 17 Cal.3d 785, 795-796 [zoning changes applicable to building permit decisions]; HockInvestment Co. v. City and County of San Francisco, supra,215 Cal.App.3d 438, 446; Palmer v. Board of Supervisors (1983)145 Cal.App.3d 779, 781 [193 Cal.Rptr. 669]; Hagman et al., Cal. Zoning Practice, supra, §§ 5.54-5.60, at pp. 174-184.)
While a developer has a right to a final subdivision map after complying with tentative map conditions (Youngblood v. Boardof Supervisors (1978) 22 Cal.3d 644, 652 [150 Cal.Rptr. 242,586 P.2d 556]), the approval of a map has never conferred a vested right to proceed with the development. "To hold that the county could be estopped from performing this [zoning and planning] function by the filing of a map would be to fly in the face of an express statutory grant. The simple act of filing a map would destroy the power of the planning commission, the zoning board and the local legislative body to ever permit the use of land for purposes other than those specified on the map, or as zoned at the time the map was filed. The uses to which a parcel could be put would be irrevocably fixed for all time. [Citation.] There is no indication in the Subdivision Map Act [citation] that such a result was intended by the Legislature." (Kappadahl v. Alcan Pacific Co., supra, 222 Cal.App.2d 626, 633-634.)
It is also clear that the completion of the permit process itself does not convey any vested rights. Even after the issuance of a building permit, new ordinances may apply unless the developer has detrimentally relied on the permit to the extent that a vested right has developed. "[E]ven after a permit has been issued, it may be revoked by an administrative body on the basis of a subsequent change in the zoning laws unless the permittee has made substantial improvements in good faith reliance on the permit." (Selby Realty Co. v. City of SanBuenaventura (1973) 10 Cal.3d 110, 125 *Page 1198 [109 Cal.Rptr. 799, 514 P.2d 111]; Russian Hill ImprovementAssn. v. Board of Permit Appeals, supra, 66 Cal.2d 34, 39;Brougher v. Board of Public Works (1928) 205 Cal. 426, 432-435 [271 P. 487].)
As Justice Mosk succinctly and correctly explained in an earlier case: "The rule long established in this state and in most other jurisdictions is that the mere acquisition of a building permit affords a builder no protection against a change in the zoning laws adopted after its issuance and that, in order to continue the construction of a project initiated prior to a change in the law, a builder must have obtained a vested right by making substantial expenditures for construction in good faith reliance on the permit prior to the effective date of the new law. [Citations.] Although the foregoing cases generally involve a change in the zoning law which thereafter prohibited a use previously permitted, the same principle is applicable where, as here, a further requirement is imposed by change in the law, i.e. the need for an additional permit. . . ." (San Diego CoastRegional Com. v. See the Sea, Limited (1973) 9 Cal.3d 888, 894 [109 Cal.Rptr. 377, 513 P.2d 129] (dis. opn. of Mosk, J.).)
Thus, until today, neither the approval of a tentative or final subdivision map nor the completion of the permit process has been considered to confer a vested right to proceed with development free of the requirements of newly enacted land use ordinances. (Santa Monica Pines, Ltd. v. Rent Control Board, supra, 35 Cal. 3d at pp. 865-867; Avco Community Development, Inc. v.South Coast Regional Com., supra, 17 Cal.3d at p. 795;McMullan v. Santa Monica Rent Control Bd. (1985) 168 Cal.App.3d 960, 963 [214 Cal.Rptr. 617]; Palmer v. Board ofSupervisors, supra, 145 Cal.App.3d 779, 783; OceanicCalifornia, Inc. v. North Central Coast Regional Com. (1976)63 Cal.App.3d 57 [133 Cal.Rptr. 664]; Gisler v. County ofMadera (1974) 38 Cal.App.3d 303, 308-309 [112 Cal.Rptr. 919]; see also Curtin Merritt, Cal. Subdivision Map Act Practice,supra, § 6.22, at pp. 138-140.) This rule applies to condominium projects. (Santa Monica Pines, Ltd. v. RentControl Board, supra, 35 Cal.3d at pp. 865-867; Blue ChipProperties v. Permanent Rent Control Bd. (1985) 170 Cal.App.3d 648, 661-662 [216 Cal.Rptr. 492] [conversion project];Hazon-Iny Development, Inc. v. City of Santa Monica (1982)128 Cal.App.3d 1, 9-10 [179 Cal.Rptr. 860]; cf. People v. H H Properties (1984) 154 Cal.App.3d 894 [201 Cal.Rptr. 687] [final map gave vested right to proceed with condominium conversion, but not to be free of the requirements of a rent control ordinance enacted after final map approved].)
Accordingly, developers and their attorneys have heeded the following advice from the experts: "[T]he subdivider does not automatically obtain a vested right to complete the project on compliance with tentative map *Page 1199 conditions and approval of the final map by the local agency. [Citations.] Until the developer's rights have vested under California's vested rights doctrine, the right to complete the project remains subject to subsequent police power enactments by the local agency and subsequent state legislation." (Curtin Merritt, Cal. Subdivision Map Act Practice, supra, § 6.28, at p. 146.) "Once a developer has obtained a use permit for a condominium project, together with tentative and final map approval, he is not necessarily `home free' with respect to building the project. The project may still have to run the gauntlet of a down-zoning referendum or adoption of a rent control ordinance." (1 Hanna, Cal. Condominium Handbook, supra, § 16.30, at p. 549.) I see no justification for the majority's deviation from settled law, which is apparently well understood among practitioners.
The majority opinion is inconsistent with legislative intent, as well as with case law and commentary. The Legislature does not consider final subdivision map approval under Government Code sections 66473 through 66474.10 as the point at which developers can claim a vested right to proceed free of the requirements of new enactments. In response to the hardship and uncertainty that it perceived that the vested rights doctrine sometimes imposes on developers, the Legislature has adopted a special "Vested Subdivision Map" application process which does assure the developer that the local laws applicable at the time of the tentative map approval will continue to apply throughout the map approval and permit process. (See Gov. Code, §§ 66498.1-66498.7, added by Stats. 1984, ch. 1113, § 8, p. 3744, operative Jan. 1, 1986; Gov. Code, § 66498.8, added by Stats. 1985, ch. 249, § 2, operative July 26, 1985; see also Nadel, This Land Is Your Land. . . Or Is It? Making Sense of Vested Rights in California (1989) 22 Loyola L.A.L.Rev. 791, 819.) The stated intent of this article of the Government Code, enacted after the subdivision approval in the present case, is "To ensure that local requirements governing the development of a proposed subdivision are established . . . when a local agency approves or conditionally approves a vesting tentative map. The private sector should be able to rely upon an approved vesting tentative map prior to expending resources and incurring liabilities without the risk of having the project frustrated by subsequent action by the approving local agency. . . ." (Gov. Code, § 66498.9. subd. (b).) The negative pregnant is manifest. It is only when the developer designates the map application as a vesting map and meets requirements for such a map established by local governments that the developer is entitled to the assurance that the law applicable to his or her development will not change after the map approval stage.
The majority assert that fairness to the developer requires that new ordinances not apply after final map approval. They rely on Youngblood v. Board of Supervisors, supra, 22 Cal.3d 644, where we held that fairness to *Page 1200 the developer and public required that we interpret the Map Act to assure a developer final map approval once he or she has complied with tentative map conditions, in part because of the substantial expenditures a developer undertakes in reliance on tentative map approval. (Id. at p. 655.) The case has nothing to say on the precise point at issue here, since it merely interprets the circumstances under which final map approval must be accorded, without examining whether a municipality can impose other requirements outside the terms of the Map Act. (See SantaMonica Pines, Ltd. v. Rent Control Board, supra, 35 Cal.3d at pp. 865-866.) The case is significant, however, because it defines fairness to the developer in terms of concern for the developer's expenditures in reliance on Map Act approval. This coincides with the established law of the vested rights doctrine, under which fairness exempts a developer from new ordinances only when he or she can demonstrate detrimental reliance. No such detrimental reliance has been shown here.
Whether or not subdivision map approval is the last application process through which the state regulatory scheme requires the condominium developer who plans no building to go, approval of the map should not bar the application of later changes in land use law unless the developer can demonstrate detrimental reliance on the map approval. The developer in this case has not even attempted to demonstrate such detrimental reliance. I fail to see how a developer who merely plans to change the nature of ownership of a building, without undertaking any construction or other expenses, has detrimentally relied on the subdivision map approval to the extent that he or she is equitably entitled to estop the government from applying its general land use regulations to his property. The majority silently erode the vested rights doctrine when they confer what can only be termed a vested right to develop without requiring any showing of detrimental reliance.
Kennard, J., concurred.
Appellant's petition for a rehearing was denied April 25, 1991. Broussard, J., and Kennard, J., were of the opinion that the petition should be granted. *Page 1201