ALAN WOFSY ASSOCIATES v. CANDELARIO (1987)

Plaintiff Alan Wofsy & Associates (hereafter Wofsy or appellant) appeals from the trial court's judgment discharging an alternative writ of mandate and denying a peremptory writ in an action brought to compel defendant City of Berkeley (hereafter respondent) to approve appellant's final tract map in accordance with the Subdivision Map Act (Gov. Code,1 § 66410 et seq.) and the Berkeley Subdivision Ordinance (Title 21 of the Berkeley Municipal Code;  hereafter City Ordinance).

Appellant is the owner of several parcels of real property located at 1909–1921A Seventh Street and 1910–1924C Eighth Street, Berkeley, California.   On August 27, 1984, appellant submitted an application for approval of a subdivision tract map (tentative map 5370) for creation of a planned residential development called the “Sisterna Commons” project.   The project was to consist of the existing twelve single-family houses and one duplex, and of construction of three new single-family dwellings on three newly created vacant lots.

On October 3, 1984, after a public hearing, the planning commission of the city approved the tentative map subject to certain conditions.   The most important of these were that the tenants were granted a 90–day option for buying the subject property for $850,000;  that the tenant group exercising the option had to include 60 percent of the existing tenants;  and that appellant was to provide $10,000 technical assistance for the tenants in purchasing the property.   The decision of the planning commission was appealed by the tenants on several grounds.   On November 20, 1984, the city council, despite the numerous objections of the tenants, upheld the approval of the tentative map and dismissed the appeal.

Since the tenants did not exercise their option either within the given 90–day period or thereafter, on February 11, 1985, appellant submitted the final map for approval to the engineering division of the city's public works department (hereafter department).   On May 9, 1985, Mr. Edward Marshall, assistant city manager for the department (hereafter city engineer) signed the map, thereby certifying that the final map was in compliance with the requirements set out in the tentative map.   On May 23, 1985, the mylar original of the approved final map was transmitted by the department to the city clerk for approval by the city council in accordance with section 21.36.080 ² of the City Ordinance.   On May 28, 1985, the city engineer sent a letter to appellant confirming that the final map had been signed by him on May 9, 1985, and had been transmitted to the city clerk.

The approval of the final tract map was first scheduled on the June 4, 1985, consent calendar of the city council.   However, for reasons unknown the matter was taken off the June 4, 1985, agenda and rescheduled for the June 18, 1985, meeting.   The record reflects that in a memorandum sent to the city the department urged that the city council approve final tract map 5370 indicating that the deadline for the council's action was June 18, 1985.   Nonetheless, on or about June 3, 1985, appellant's counsel was advised by City Attorney Penny Nakatsu that in order to facilitate settlement in the matter the final map would be removed indefinitely from the city council's consent calendar.

On June 18, 1985, appellant requested that the city clerk certify the final tract map and transmit it to the county recorder.   Since respondent failed to comply, on July 2, 1985, appellant filed a petition for writ of mandate in the superior court contending in essence that due to respondent's inaction, the final tract map was deemed approved by operation of law (§ 66458, subd. (b)) and that the city clerk had a ministerial duty to transmit the final map for recordation (§ 66464).³

Following the issuance of an alternative writ on July 9, 1985, a hearing was held in the superior court on July 22, 1985.   At the hearing respondent advised the court that appellant's final map would be considered at the July 23, 1985, meeting of the city council.   Thereupon, the court proceeding was continued to July 25, 1985, in order to take into account the city council's decision in the matter.   On July 23, 1985, the city council disapproved the final map on the ground that appellant had violated the conditions of the tentative map inasmuch as he had entered into contracts of sale with two outside persons prior to the expiration of the 90–day option granted to the tenants.   After having been informed on the city council's action, the trial court discharged the alternative writ and denied the peremptory writ holding in essence that appellant failed to prove whether the final map had been submitted to the authorities and whether sufficient time had passed for the approval of the final map by operation of law.

Wofsy's principal argument on appeal is that the trial court committed prejudicial error in denying the issuance of the peremptory writ.   In more detail, appellant argues as follows:  (1) there was substantial evidence showing that the city clerk received the final map in the last week of May 1985;  (2) the failure of the city council to act upon the final map at its next regular meeting (§ 66458, subd. (a)) or 14 days after the receipt of the final map resulted in an approval of the map by operation of law (§ 66458, subd. (b));  (3) respondent had a ministerial (nondiscretionary) duty to certify and transmit the final map for recordation if the final map was in substantial compliance with the previously approved tentative map (§ 66474.1;  Youngblood v. Board of Supervisors (1978) 22 Cal.3d 644, 656, 150 Cal.Rptr. 242, 586 P.2d 556;  South Central Coast Regional Com. v. Charles A. Pratt Construction Co. (1982) 128 Cal.App.3d 830, 843, 180 Cal.Rptr. 555;  Great Western Sav. & Loan Assn. v. City of Los Angeles (1973) 31 Cal.App.3d 403, 411, 107 Cal.Rptr. 359);  and (4) mandamus was the proper procedure to compel the performance of a ministerial act (Code Civ.Proc., § 1085;  Metropolitan Water Dist. v. Marquardt (1963) 59 Cal.2d 159, 170–171, 28 Cal.Rptr. 724, 379 P.2d 38;  Great Western Sav. & Loan Assn. v. City of Los Angeles, supra, 31 Cal.App.3d at pp. 413–414, 107 Cal.Rptr. 359).   For the reasons which follow, we agree with appellant and reverse the judgment.

I. The Final Map was Approved by Operation of Law

The statutory and regulatory scheme concerning the city's duty to act upon the final map is well outlined.   At the time here relevant, section 66458, subdivision (a), provided that “The legislative body shall, at the meeting at which it receives the map or, at its next regular meeting after the meeting at which it receives the map, approve the map if it conforms to all the requirements of this chapter and any local subdivision ordinance applicable at the time of approval or conditional approval of the tentative map and any rulings made thereunder or, if it does not so conform, disapprove the map. ”   (Emphasis added.)   Section 21.36.080 likewise underlines that the city council shall consider (i.e., approve or disapprove) the final map within 14 days after its submission to the city (see fn. 2, supra ).   Section 66457, subdivision (a), of the code, in turn, clarifies that “The date the map shall be deemed filed with the legislative body is the date of the meeting at which the legislative body receives the map.”   Furthermore, and equally to the point, subdivision (b), of section 66458, explicitly states that “If the legislative body does not approve or disapprove the map within the prescribed time, or any authorized extension thereof, and the map conforms to all said requirements and rulings, it shall be deemed approved, and the clerk of the legislative body shall certify its approval thereon.”  (Emphasis added.)

In the case at bench there is a host of direct and circumstantial evidence that respondent city was made aware of the approval of the final map by the city engineer as early as May 10, 1985;  that the final map was transmitted to the city clerk on or about May 23, 1985;  and that the city clerk not only received the map, but also took steps that the map be placed on the June 18, 1985, consent calendar of the city council.   Thus, Wofsy's sworn declaration filed in support of the petition sets out that on May 10, 1985, the day following the approval of the map by the department, senior civil engineer Lotter and Edy Acob, another employee of the department, advised appellant that the city council hearing on the final map was scheduled by June 4, 1985.   On May 22, 1985, appellant was informed by Ms. Acob that the hearing on the matter was postponed to June 18, 1985.   On June 4, 1985, City Clerk Edythe Campbell told appellant that the final map was placed on the city council's consent calendar for June 18, 1985, and reassured him that City Attorney Ms. Nakatsu would not “pull” the map from the June 18 calendar.   Nonetheless, at the beginning of June, appellant was advised by City Attorney Ms. Nakatsu that the final map would be removed from the June 18 city council agenda.

Appellant's statement that the final map was on the June 18, 1985, city council calendar, but removed by Ms. Nakatsu, was corroborated also by the declaration of Ms. Mazia, appellant's counsel.   She declared under penalty of perjury that on May 23, 1985, former City Attorney Natalie E. West had stated in her presence and in the presence of Attorney Nakatsu that the final map would be heard by the city council on June 18, 1985.   Nevertheless, on June 3, 1985, Ms. Nakatsu advised appellant's counsel that she had taken the final map off the June 18 calendar and that the matter would be postponed indefinitely.

Appellant's sworn statement was finally reinforced by additional documentary evidence as well.   An office memorandum attached to appellant's declaration reveals that on May 23, 1985, a mylar original of the final map was transmitted by the city engineer's office directly to City Clerk Edythe Campbell with the request that it be placed on the city council's consent calendar in accordance with section 21.36.080 of the City Ordinance (i.e., within 14 days).   The fact of transmittal was further documented by the May 28, 1985, letter of the city engineer in which he advised appellant that he had signed the final map on May 9, 1985, and also that he had transmitted the same to the city clerk.

 The foregoing facts conclusively establish that the city clerk did receive the final map on or about May 23, 1985, and also that she took steps to schedule the matter on the June 18, 1985, city council meeting.   The receipt of the final map by the city, of course, triggered the statutory and regulatory duty to approve or disapprove the map within the time prescribed which was by June 4, 1985, but no later than June 18, 1985.   Since the city council did not act upon the subject within the time allotted by the law (the purported disapproval of the map took place on July 23, 1985), section 66458, subdivision (b), rendered the final map approved by operation of law.

Contrary to respondent's contention, the finding of the trial court that the city clerk did not receive the final map and that as a consequence the statutory bar did not commence to run, are simply without evidentiary support and cannot be sustained on appeal.   It is well established that the finding of the trial court withstands appellate scrutiny only if it is supported by substantial evidence.  (Estate of Silverstein (1984) 159 Cal.App.3d 221, 226, 205 Cal.Rptr. 294;  Stoll v. Selander (1947) 81 Cal.App.2d 294, 296, 183 P.2d 940.)   As emphasized in cases, the phrase “substantial” evidence cannot be deemed synonymous with “any” evidence.   By definition, substantial evidence clearly implies that it must be of ponderable legal significance.   (Estate of Teed (1952) 112 Cal.App.2d 638, 644, 247 P.2d 54.)   As stated in Teed, substantial evidence “must be reasonable in nature, credible, and of solid value;  it must actually be ‘substantial’ proof of the essentials which the law requires in a particular case․”  (Ibid.)

 When so tested, the record at bench shows by overwhelming evidence that the city clerk did receive the final map on or about May 23, 1985.   The latter is proven not only by the sworn declarations of appellant and his counsel and the attached documentary evidence, but also by the uncontradicted fact that the final map was on the city council's calendar on both June 4 and 18, 1985 (see discussion, supra ).   The only conflicting “evidence” produced by respondent was a bare denial in the answer by stating that “Respondent also specifically alleges that petitioner's final map has not yet been transmitted to the City Clerk.”   Significantly enough, aside from this unsupported statement, respondent failed to introduce any testimonial or documentary evidence rebutting appellant's proof, nor did it make any offer of proof in an attempt to substantiate its denial and/or to refute the evidence already adduced.   Needless to say that a bare allegation vis-a-vis well-founded evidence hardly amounts to substantial evidence, nor does it support a court finding based thereon.

II. There was Substantial Compliance With the Conditions of the Tentative Map

Secondly, the judgment of the trial court must be set aside for the additional reason that appellant, as a matter of record, substantially complied with the conditions set out in the tentative map and that as a consequence, respondent was not authorized to deny the approval of the final map.

Section 66473 (formerly Bus. & Prof. Code, § 11526) provides in relevant part that “A local agency shall disapprove a map for failure to meet or perform any of the requirements or conditions imposed by this division or local ordinance enacted pursuant thereto;  provided that a final map shall be disapproved only for failure to meet or perform requirements or conditions which were applicable to the subdivision at the time of approval of the tentative map;  and provided further that such disapproval shall be accompanied by a finding identifying the requirements or conditions which have not been met or performed․”  (Emphasis added.)

Section 66474.1 (formerly Bus. & Prof. Code, § 11549.6) further clarifies that “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 f it finds that the final or parcel map is in substantial compliance with the previously approved tentative map.”  (Emphasis added.)

 The case law, in interpreting the above sections, explains that the local governing body does not have absolute discretion to approve or disapprove a final subdivision map.   Where the developer has relied on a tentative map approval with conditions and has produced a final tract map which satisfies the conditions, he is entitled to the approval of the final map.   (South Central Coast Regional Com. v. Charles A. Pratt Construction Co., supra, 128 Cal.App.3d 830, 843, 180 Cal.Rptr. 555;  Great Western Sav. & Loan Assn. v. City of Los Angeles, supra, 31 Cal.App.3d 403, 411, 107 Cal.Rptr. 359.)   As stated in Youngblood v. Board of Supervisors, supra, 22 Cal.3d 644, 150 Cal.Rptr. 242, 586 P.2d 556, “The purpose of section 11549.6, as we perceive it, was to confirm that the date when the tentative map comes before the governing body for approval is the crucial date when that body should decide whether to permit the proposed subdivision.   Once the tentative map is approved, the developer often must expend substantial sums to comply with the conditions attached to that approval.   These expenditures will result in the construction of improvements consistent with the proposed subdivision, but often inconsistent with alternative uses of the land.   Consequently it is only fair to the developer and to the public interest to require the governing body to render its discretionary decision whether and upon what conditions to approve the proposed subdivision when it acts on the tentative map.   Approval of the final map thus becomes a ministerial act once the appropriate officials certify that it is in substantial compliance with the previously approved tentative map.”  (At pp. 655–656, 150 Cal.Rptr. 242, 586 P.2d 556, emphasis added.)

In the case at bench the record demonstrates that the city engineer certified appellant's final map by finding in essence that the final map was in compliance with the technical requirements of the tentative map.   Respondent's contention that the disapproval of the final map was justified because appellant violated the legal requirements attached to the tentative map by entering into sales contracts with third parties on December 20, 1984 (i.e., during the option period granted to the tenants), cannot stand for two reasons.

 First, it was understood between appellant and the real estate company negotiating the deals that the sale of the two vacant lots could not be consummated until the tenants' 90–day option had expired.   Second, the record as a whole fairly indicates that the postponement of decision on the final map was due to an attempt to settle the case, and that the alleged violation of the conditions of the tentative map was only a pretense or afterthought on the part of the city to justify the disapproval of the final map.

The foregoing facts thus clearly establish that respondent's failure to act upon the final map was due to extraneous reasons, rather than the violation of the conditions of the approved tentative map.   Moreover, the attempted sales of the two vacant lots during the option period amounted to no more than a technical violation of the conditions.   This, of course, is only another way of stating that there was substantial compliance with the conditions set out in the tentative map.   As a consequence, it is beyond dispute that respondent had no right to deny the approval of the final map under the statutory and case law. (§ 66474.1;  Youngblood v. Board of Supervisors, supra, 22 Cal.3d 644, 655–656, 150 Cal.Rptr. 242, 586 P.2d 556;  Great Western Sav. & Loan Assn. v. City of Los Angeles, supra, 31 Cal.App.3d 403, 411, 107 Cal.Rptr. 359.)

The judgment is reversed.   The trial court is directed to issue a peremptory writ of mandate compelling the city clerk to transmit the final map to the county recorder for recordation.   Appellant to recover costs on appeal.

FOOTNOTES

FN1. Unless otherwise indicated, all statutory references are to the Government Code..  FN1. Unless otherwise indicated, all statutory references are to the Government Code.

2.   Section 21.36.080 of the City Ordinance provides in part that “Within fourteen days after filing of said final map with the city clerk, the city council shall consider said map․”.

3.   Section 66464 provides:  “(a) After the approval by the city of a final map of a subdivision, the city clerk shall transmit the map to the clerk of the county board of supervisors for ultimate transmittal to the county recorder.   The city clerk shall transmit parcel maps approved by the city directly to the county recorder.  [¶ ] (b) After the approval by the county of a final or parcel map of a subdivision within unincorporated territory, the map shall be transmitted ultimately to the county recorder.  [¶ ] (c) When all certificates and security required under the provisions of Sections 66492 and 66493 of this division have been filed and deposited with the clerk of the board of supervisors and approved by the county, the clerk of the board of supervisors shall certify that such certificates have been filed and deposits have been made and shall transmit the final map to the county recorder.”

ANDERSON, Presiding Justice.

CHANNEL and SABRAW, JJ., concur.