Filed 6/8/20

                            CERTIFIED FOR PUBLICATION


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                           FOURTH APPELLATE DISTRICT

                                     DIVISION TWO



 NORTH MURRIETA COMMUNITY,
 LLC,
                                                    E072663
          Plaintiff and Appellant,
                                                    (Super.Ct.No. RIC1800423)
 v.
                                                    OPINION
 CITY OF MURRIETA et al.,

          Defendants and Respondents.



        APPEAL from the Superior Court of Riverside County. Randall S. Stamen, Judge.

Affirmed.

        Cox, Castle & Nicholson and Kenneth B. Bley for Plaintiff and Appellant.

        Best Best & Krieger, Jeffrey V. Dunn, and Daniel L. Richards for Respondent,

Western Riverside Council of Governments.

        No appearance for Respondent, the City of Murrieta




                                            1
       Appellant, North Murrieta Community, LLC (North Murrieta), is the master

developer of a large development project in the City of Murrieta (the City) called the

Golden City Project.

       As part of the planning and approval process, North Murrieta sought to take

advantage of certain statutory land use planning tools—vesting tentative maps and

development agreements—that enable builders to lock in place regulations, conditions,

and fees municipalities may enforce against them while a project proceeds. These tools

encourage development by, among other things, helping to make costs predictable despite

the fact this kind of project can take years or even decades to complete.

       In July 1999, North Murrieta obtained approval for a vesting tentative map on part

of the Golden City Project property. The map locked in place fees the City could charge

the developer until the vesting tentative map expired two years later. In March 2001, four

months before the map would expire, North Murrieta and the City entered a development

agreement covering the entire Golden City Project property. The agreement extended the

term of the vesting tentative map for 15 years and also locked in place regulations and

fees the City could enforce against the developer on the entire project for the same

period.

       Critically, however, the development agreement explicitly allowed the City to

impose new fees on North Murrieta to mitigate the effects of development, provided the

new fees were generally applicable and designed to address effects not fully mitigated by

fees or exactions in place when the parties entered the development agreement. The City



                                             2
subsequently passed the Western Riverside County Transportation Uniform Mitigation

Fee Program Ordinance (the TUMF ordinance), which was designed for just that purpose.

(Murrieta Ord. No. 277-03.)

      In 2017, the City charged the new mitigation fees to a subsequent purchaser and

developer of a subset of the affected properties. The builder made $541,497 in TUMF

payments from July to October 2017, and the City transferred the bulk of those funds to

respondent, Western Riverside Council of Governments (WRCOG). Both the developer

and North Murrieta protested the fees. The purchaser assigned their rights to North

Murrieta, who brought a petition for writ of mandate.

      North Murrieta asked the trial court to order return of the TUMF payments and

requested declarations that the City couldn’t impose the new mitigation fees under the

extended vesting tentative map until it expired in 2019 and can’t impose those fees under

the development agreement until it expires in 2021. The trial court held the development

agreement established the parties’ rights and permitted the City to impose the new fees

under the TUMF ordinance. North Murrieta appealed.

      We agree with the trial court. Though the vesting tentative map limited the fees

the City could collect to those in place when the City approved the map, North Murrieta

agreed to modify those rights—both extending their duration and allowing the City to

impose new generally applicable mitigation fees—by entering the development

agreement with the City. The development agreement is a contract, which the trial court

correctly enforced. We therefore affirm the judgment.



                                            3
                                              I

                                          FACTS

       A. The Vesting Tentative Map and the Development Agreement

       The parties largely agree on the relevant facts. In 1999, North Murrieta applied for

approval of vesting tentative map 28532 (the vesting tentative map), which covers part of

the Golden City Project area. Approval of a vesting tentative map generally precludes a

city from imposing certain conditions not in effect at the time it approves the map.

“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 in effect at the time the

vesting tentative map is approved or conditionally approved.” (Gov. Code, § 66498.1; see

also Gov. Code, § 66474.2; unlabeled statutory citations refer to this code.) The City

approved North Murrieta’s application for vesting tentative map 28532 on July 28, 1999.

       Developers may also obtain a measure of certainty about the costs associated with

multi-year projects by entering development agreements with municipalities. “Unless

otherwise provided by the development agreement, rules, regulations, and official

policies governing permitted uses of the land, governing density, and governing design,

improvement, and construction standards and specifications, applicable to development

of the property subject to a development agreement, shall be those rules, regulations, and

official policies in force at the time of execution of the agreement.” (§ 65866.)




                                              4
       On March 6, 2001, the City and North Murrieta entered a development agreement

for the Golden City Project Specific Plan, which set out the terms and conditions for

development of the entire Golden City Project, including the property subject to vesting

tentative map 28532. The Murrieta City Council (City Council) passed Ordinance No.

230-01 adopting the development agreement on the same day.

       In passing the ordinance, the City Council found the development agreement “is in

the best interest of the City because it provides for the construction of infrastructure

needed to serve development in the area; allows the City to collect fees for operational

costs for police and fire services which cannot otherwise be collected under existing City

ordinances; allows the City to impose future mitigation fees on the project if said fees are

applied throughout the City; provides funds for fire and police services and facilities

earlier than required under the previous Public Facilities Financing Plan for the project;

and is consistent with the General Plan Land Use Designation of ‘Specific Plan’, the

Golden City Specific Plan and Section 16.54 of the Murrieta Municipal Code.”

       Among many other things, the agreement extended the term of the vesting

tentative map at issue in this case. Generally, such maps expire within 24 months of

approval. (§ 66452.6, subd. (a).) However, municipalities may extend them by entering

development agreements. (Ibid.) Here, the City and the developer entered a development

agreement extending the vesting tentative map—and certain of the developer’s rights

under the map—for 15 years, until March 5, 2016—the agreement’s termination date.




                                              5
The City later (on December 9, 2015) extended the term of the development agreement to

March 5, 2021.

       The same section of the development agreement makes clear it froze most of the

terms, conditions, and fees the City could impose on the developer. “In extending the

duration of tentative tract maps, City shall not impose any additional conditions or fees,

or changes in design, density or other policies, rules or regulations which differ from the

original approval of the Project except as otherwise provided for herein.”

       However, the agreement does purport to make two changes to the developer’s

rights. First, under the heading “Permit Conditions and Exactions (Fees and Charges),”

the agreement changes the date on which the developer’s rights vested. “The

development impact fees, user fees, linkage fees, assessments, charges, general or special

taxes, municipal financing, land dedication requirements, fees and charges . . . which may

be imposed by the City . . . are limited to those Exactions . . . currently adopted by the

City as of the Effective Date,” which we’ve noted was March 5, 2001. That’s

approximately two years later than the freeze date North Murrieta had previously

obtained for the portion of the property covered by the vesting tentative map.

       Second, the same section also reserved to the City the power to impose additional

fees or to increase fees, so long as they are “effective Citywide (not specifically enacted

to apply or be discriminately adverse to SPM-5) for project impacts which are not fully

mitigated by existing fees or exactions at the time of the City’s approval of this

Development Agreement.” Though the parties haven’t submitted a copy of the vesting



                                              6
tentative map, they appear to agree it didn’t allow the City discretion to impose new

mitigation fees like the development agreement envisions.

       B. The Transportation Uniform Mitigation Fee Ordinance

       About two years later, on February 4, 2003, the City Council adopted the TUMF

ordinance. The ordinance originated as a program designed by WRCOG for adoption by

the authorities in its member jurisdictions, which includes the City. WRCOG’s purpose

was to have all member cities adopt the program ordinance and raise funds to improve

the regional transportation system to meet the needs of regional development.

       In adopting the TUMF ordinance, the City Council found new fees were needed to

avoid traffic congestion and ensure the availability of safety services for the public. The

council found “[a]bsent a Transportation Uniform Mitigation Fee (TUMF), existing and

known future funding sources will be inadequate to provide the necessary improvements

to the Regional System, resulting in an unacceptably high level of traffic congestion

within and around Western Riverside County.” They also found “the failure to mitigate

growing traffic impacts on the Regional System within Western Riverside County will

substantially impair the ability of public safety services (police and fire) to respond. The

failure to mitigate impacts on the Regional System will adversely affect the public health,

safety and welfare.”

       The ordinance provides for new mitigation fees to mitigate the effects of

development projects on transportation. “The purpose of this section is to mitigate

growing traffic impacts on the Regional System within Western Riverside County by



                                              7
collecting fees from residential and non-residential developments. The fees will be used

to construct the transportation improvements that are necessary for the safety, health and

welfare of the residential and non-residential users of the development projects on which

the TUMF will be levied.”

         The TUMF ordinance applies generally to “all new development projects within

the City,” but contained a list of exceptions. Relevant here, the ordinance initially

exempted “[p]rojects with vesting tentative tract or parcel maps.” However, in 2010 the

City Council removed the exemption for projects with vesting tentative maps. This act

made the TUMF ordinance apply by its terms to the Golden City Project.

         C. Imposition of TUMF

         On February 5, 2015, North Murrieta completed its application for a grading

permit on a portion of the property that would be designated as tract 28532-4, which is a

portion of the property within the Golden City Project covered by vesting tentative map
         1
28532.

         About a year later, on February 26, 2016, the City Council approved the final map

creating tract 28532-4 and the City recorded the final map, less than a month before the

vesting tentative map and the development agreement were set to expire. On May 17,

2016, the City issued a grading permit for the lots within tract 28532-4. Typically, the


         1Though the City admits North Murrieta completed its application for a grading
permit, WRCOG denied this in its answer, saying it lacked sufficient information to
admit the allegation. They claim no record evidence supports the allegation and contest
its truth on appeal. We conclude the fact isn’t relevant to deciding the case but include it
here for background.

                                              8
rights conferred by a vesting tentative map expire one year after the recording of a final

map. (Gov. Code, § 66498.5, subd. (b); Murrieta Mun. Code, § 16.96.050.C.3.) However,

the City approved an application to extend the vesting rights to March 26, 2019. As we

previously noted, the City had already extended the term of the development agreement

to March 5, 2021.

       D.R. Horton is the developer of the lots within final tract 28532-4. After the City

demanded payment of additional mitigation fees, they made TUMF payments to the City

totaling $541,497 from July to October 2017. The City transferred the mitigation fees to

WRCOG, retaining only a $4 administrative fee on each transaction. Thus, WRCOG

received TUMF payments of $541,253 from D.R. Horton, and the City retained $244 as

administrative fees.

       D.R. Horton and North Murrieta objected to having these fees imposed. Both

companies sent letters explaining their objections on October 5 and November 6, 2017.

According to both companies, neither the City nor WRCOG refunded the fees. On

December 5, 2017, D.R. Horton assigned to North Murrieta its claim for a refund of the

TUMF payments. Both companies submitted to the trial court declarations and copies of

the assignment to support North Murrieta’s ability to challenge the collection of the fees.

       D. Petition for Writ of Mandate

       On January 5, 2018, North Murrieta filed a petition for writ of mandate seeking to

recover the TUMF payments from the City and WRCOG. The petition stated three causes




                                             9
of action. In the first two, they sought refunds of the TUMF payments from the City and

WRCOG, respectively.

       In the third cause of action, they asked for a declaratory judgment that TUMF

payments couldn’t be required in connection with lots in final tract map 28532-4 until

after March 26, 2019 because the City had extended the vested rights until that date. They

also asked for a declaration that TUMF payments cannot be required in connection with

any of the lots within the Golden Project Specific Plan (which includes the lots under

final tract map 28532-4) until after March 5, 2021, because the City extended the

development agreement to that date, and the agreement bars such fees.

       E. Trial and Judgment

       The Riverside County Superior Court held trial on November 9, 2018 and issued a

written ruling on February 4, 2019.

       The trial court denied the petition on the ground the development agreement

controlled and allowed the City to require TUMF payments on lots within the map.

“Development Agreement SPM-5 was entered into under Government Code sections

65864, et seq., the Development Agreement Law. Section D.2.b., of the Development

Agreement provides that the City may impose new fees for development impact,

provided the fees: apply Citywide; are not enacted to discriminatorily apply to the subject

development; and, mitigate impacts that were not fully mitigated by the fees in existence

at the time the Development Agreement was approved by the City (March 6, 2001).

Petitioner does not argue or provide evidence contradicting the plain reading of the



                                            10
Development Agreement. It is undisputed that the TUMF was effective Citywide and that

it was not discriminately applied to developer D.R. Horton. Section 2 of the City’s

TUMF ordinance, City of Murrieta Ordinance No. 277-03, provides that the development

impact fees prior to the ordinance were insufficient and that future development required

increased fees for all developments.”

       In the most basic terms, the trial court concluded the City agreed to extend the

vesting rights of the tentative map, but North Murrieta agreed the City could impose

additional, generally applicable mitigation fees if the mitigation fees already in place

were inadequate. The City determined it did need to impose additional mitigation fees

and did so in conformity with the terms of the agreement. Accordingly, the trial court

entered judgment in favor of the City and WRCOG and against North Murrieta on all

three causes of action.

       North Murrieta filed a timely notice of appeal. In its opening brief, they waived

their right to recover the $244 in administrative fees the City retained from their

payments. Though they appealed the entire judgment, they seek recovery of only the fees

ultimately collected by WRCOG. Perhaps for this reason, though the City remains a party

to the appeal, they have not filed a brief, leaving it to WRCOG to defend the collection of

mitigation fees from D.R. Horton under the TUMF ordinance.




                                             11
                                              II

                                        ANALYSIS

       North Murrieta argues the trial court erred by concluding the development

agreement governed the rights of the parties. They argue the vesting tentative map

statutes provide a way of fixing a developer’s rights that operates beyond the reach of any
                         2
development agreement.

       It’s well established that when “a local agency approves a vesting tentative map

(§ 66498.1, subd. (b) ) or enters into a development agreement (§§ 65865, 65866), the

builder is entitled to proceed on the project under the local rules, regulations, and

ordinances in effect at the time of the approval.” (1901 First Street Owner, LLC v. Tustin

Unified School Dist. (2018) 21 Cal.App.5th 1186, 1195.) In this case, of course, the City

approved a vesting tentative map (in 1999) and entered a development agreement
                                       3
(in 2001) affecting the same property. The question we must resolve is whether a

subsequent development agreement can alter the builder’s vested rights under the vesting

tentative map. This is a legal question which we review independently. (Center for



       2 Because North Murrieta argues the vesting tentative map statute and the City’s
act approving the vesting tentative map are the source of their rights, the parties spend
large sections of their briefs contesting whether the vesting tentative map expired at
various points over the 20 years since its approval. We conclude those arguments are
irrelevant because the development agreement validly changed North Murrieta’s rights
and the City validly imposed the new mitigation fees under the agreement’s terms.
       3 Though, as we’ve noted, the development agreement covered the entire Golden
City Project, while the vesting tentative map at issue in this appeal covered only a portion
of the larger development.


                                             12
Community Action & Environmental Justice v. City of Moreno Valley (2018) 26

Cal.App.5th 689, 698 (Center for Community Action).)

       We start by noting vesting tentative maps and development agreements share a

purpose. The Legislature enacted the vesting tentative map provisions “to freeze in place

those ‘ordinances, policies and standards in effect’ at the time the vesting tentative map

application is deemed complete . . . [and] ‘offer[] developers a degree of assurance, not

previously available, against changes in regulations.’” (Bright Development v. City of

Tracy (1993) 20 Cal.App.4th 783, 793.) Similarly, it is “a purpose of the [development

agreement] statutory scheme that the public planning process will be strengthened and

private participation in comprehensive planning and cost reduction will be encouraged

where the applicant for a development project may receive assurances through such an

agreement that, upon approval of the project, the applicant may proceed in accordance

with existing policies, rules and regulations.” (National Parks & Conservation Assn. v.

County of Riverside (1996) 42 Cal.App.4th 1505, 1521.)

       Thus, obtaining either a vesting tentative map or entering a development

agreement allows a builder to rely on the regulations, conditions, and fees that exist at the

planning stage when assessing the economics of completing a development that may take

years or even decades to complete. “The purpose of [a] vesting tentative map and [a]

development agreement is to allow a developer who needs additional discretionary

approvals to complete a long-term development project as approved, regardless of any

intervening changes in local regulations.” (City of West Hollywood v. Beverly Towers,



                                             13
Inc. (1991) 52 Cal.3d 1184, 1194; see also §§ 65864 [development agreements], 66498.9

[vesting tentative maps].)

       North Murrieta argues the City was required to give force to the limits on fees

(and other conditions) conveyed by the approval of the vesting tentative map until that

map formally expired. They argue that would extend the map’s limitations, for the lots at

issue in this appeal, until March 26, 2019, the date to which the City extended the vesting

rights after approving the final map for tract 28532-4. We think their position misstates

the situation. A vesting tentative map doesn’t freeze regulations and fees indefinitely. The

tentative map statute, which applies to vesting tentative maps, provides all tentative maps

expire 24 months after their initial approval, though that period may be extended by

ordinance up to 12 months. (§ 66452.6, subd. (a).) Here, the City approved North

Murrieta’s vesting tentative map on July 28, 1999. That means the map—and North

Murrieta’s rights—were set to expire on July 28, 2001. (§ 66452.6, subd. (a).)

       As it happens, the City and North Murrieta came to an agreement to extend the

term of the vesting tentative map by nearly 15 years. They accomplished this by entering

the development agreement. The Legislature specifically allowed “a tentative map on

property subject to a development agreement . . . may be extended for the period of time

provided for in the agreement, but not beyond the duration of the agreement.” (66452.6,

subd. (a).) So, in March 2001, when North Murrieta was four months away from losing

all the rights the vesting tentative map had conferred, they negotiated an extension of

those rights with the City as part of the development agreement concerning the entire



                                            14
Golden City Project. Without the development agreement, North Murrieta would have

lost the vesting rights; with the development agreement, they retained at least some of

those rights for an additional 15 years—20 years counting the later extension of the

agreement.

       However, the terms of the development agreement make clear the City did not

agree to extend all the rights conveyed by the vesting tentative map. North Murrieta

made concessions. For one, the parties agreed the date on which the City would be barred

from imposing new fees and conditions was March 5, 2001, the effective date of the

agreement, not the date the vesting tentative map was approved. “The development

impact fees, user fees, linkage fees, assessments, charges, general or special taxes,

municipal financing, land dedication requirements, fees and charges . . . which may be

imposed by the City . . . are limited to those Exactions . . . currently adopted by the City

as of the Effective Date.”

       Critically, North Murrieta also agreed to allow the City to impose new mitigation

fees under certain conditions. Under the headings “Public Improvements” and “Permit

Conditions and Exactions,” the agreement provides the City would limit various types of

fees as discussed above and would “impose only the Permitted Exactions as set forth and

described herein.”[CT 415} However, the agreement also says “the City shall have the

right to: [¶] . . . [¶] . . . impose fees, increase permit fees and or exactions provided that

they are effective Citywide (not specifically enacted to apply or be discriminately adverse

to [development agreement] SPM-5) for project impacts which are not fully mitigated by



                                               15
existing fees or exactions at the time of the City’s approval of this Development

Agreement.” (Italics added.) The plain meaning of this provision was that the City could

charge North Murrieta new, generally applicable mitigation fees like those imposed by

the TUMF ordinance, so long as existing mitigation fees don’t already suffice.

       This provision was evidently an important concession by North Murrieta. In

adopting the development agreement as an ordinance, the City Council found the

development agreement “is in the best interest of the City because it provides for the

construction of infrastructure needed to serve development in the area.” The City Council

included a short list of features of the agreement that made it notably beneficial, a list

which included the fact that the development agreement “allows the City to impose future

mitigation fees on the project if said fees are applied throughout the City.” (Murrieta Ord.

No. 230-01.)

       In short, by entering the development agreement, North Murrieta agreed the City

could impose fees already in place by March 6, 2001, and also agreed the City could

impose other generally applicable fees the City determined were needed, beyond existing

fees, to mitigate effects of development. The agreement is binding on both the City and

the developer. (§ 65865.4 [“a development agreement shall be enforceable by any party

thereto notwithstanding any change in any applicable general or specific plan, zoning,

subdivision, or building regulation adopted by the city, county, or city and county

entering the agreement, which alters or amends the rules, regulations, or policies

specified in Section 65866”].) And the City must approve development agreements as



                                              16
ordinances and record the agreements to give notice to the public, especially prospective

purchasers such as D.R. Horton. (§ 65868.5 [“[T]he clerk of the legislative body shall

record with the county recorder a copy of the agreement, which shall describe the land

subject thereto. From and after the time of such recordation, the agreement shall impart

such notice thereof to all persons as is afforded by the recording laws of this state”].) The

same provision directs that “the burdens of the agreement shall be binding upon, and the

benefits of the agreement shall inure to, all successors in interest to the parties to the

agreement.” (Ibid.)

       North Murrieta offers no authority—and really no reason—for thinking vesting

tentative maps impart a species of super rights that cannot be negotiated away. Nor do

they offer any reason for thinking development agreements should be treated differently

than other contractual agreements. The law says development agreements are contracts,

enforceable like normal contracts. “A development agreement ‘is an enforceable contract

between the municipality and the developer.’ [Citation.] ‘In essence, the statute allows a

city or county to freeze zoning and other land use regulation applicable to specified

property to guarantee that a developer will not be affected by changes in the standards for

government approval during the period of development.’ [Citations.] It also permits

‘municipalities to extract promises from the developers concerning financing and




                                              17
                                             4
construction of necessary infrastructure.’” (Center for Community Action, supra, 26

Cal.App.5th at pp. 696-697.)

       North Murrieta argues the vesting tentative map provides a separate source for

their rights, unaffected by the development agreement. But this position can’t withstand

scrutiny of the terms of agreement. As our discussion reveals, altering the protections of

the vesting tentative map was an explicit and critical part of the agreement. Some

provisions benefited the developer. They obtained the City’s agreement to limit for a

period of 15 years their ability to impose new regulations, conditions, and fees not

provided for by the agreement. But some provisions benefited the City. Most importantly,

the provision giving it discretion to increase mitigation fees so long as they were

generally applicable and aimed at mitigation not already provided for. North Murrieta

can’t claim the benefit of the provisions that benefit them but disclaim the provisions that

don’t. (See Mammoth Lakes Land Acquisition, LLC v. Town of Mammoth Lakes (2010)

191 Cal.App.4th 435, 443-444 [“a legislatively approved development agreement gives

both parties vested contractual rights”].)

       The City took advantage of the provision allowing it to impose additional

mitigation fees when it adopted the TUMF ordinance. The City Council found the new

fees were needed to avoid traffic congestion and ensure the availability of safety services

and determined the new fees were needed because “existing and known future funding


       4 The sole exception is that, as a legislative act, a development agreement is
subject to referendum, but that wrinkle isn’t at issue in this case. (Center for Community
Action, supra, 26 Cal.App.5th at p. 697.)

                                                 18
sources will be inadequate to provide the necessary improvements to the Regional

System.” The ordinance specifies the new mitigation fees were imposed “to mitigate

growing traffic impacts on the Regional System within Western Riverside County by

collecting fees from residential and non-residential developments” and will be used to

“construct the transportation improvements that are necessary for the safety, health and

welfare of the residential and non-residential users of the development projects on which

the TUMF will be levied.” The new fees apply generally to “all new development

projects within the City.” Though the ordinance, as initially passed in 2003, exempted

“[p]rojects with vesting tentative tract or parcel maps” the City Council removed that

exemption in 2010, which made it applicable to the Golden City Project.

      We conclude the development agreement gave the City the authority to impose

new, generally applicable mitigation fees. Since North Murrieta doesn’t contest the fees

were generally applicable or imposed to mitigate effects of development not already

covered by fees existing as of March 6, 2001, they have provided no basis for concluding

the City overstepped its bounds by enacting the TUMF ordinance or charging and

collecting the fees from D.R. Horton.

      North Murrieta’s complaint that the City’s imposition of additional mitigation fees

has frustrated its own and D.R. Horton’s reliance expectations is not well taken. North

Murrieta negotiated this agreement, which included the provision allowing the City to

impose new mitigation fees. The City recorded the development agreement to give notice

to prospective buyers. And D.R. Horton purchased the property with notice of the



                                            19
development agreement as well as the fact that the City had in fact imposed additional

mitigation fees. Developers are sophisticated entities, capable of and expected to conduct

due diligence to determine their rights and duties. If either North Murrieta or D.R. Horton

didn’t factor these fees into their planning, the fault lies with them.

                                              III

                                       DISPOSITION

       We affirm the judgment. The Western Riverside Council of Governments is

entitled to their costs on appeal.

       CERTIFIED FOR PUBLICATION


                                                                  SLOUGH
                                                                               Acting P. J.

We concur:


FIELDS
                           J.


RAPHAEL
                           J.




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