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Map Recorded In 1915 Rejected; All Pre-1929 Maps In Question

The validity of a 1915 subdivision map has been rejected by the First District Court of Appeal in a decision that calls into question any subdivision recorded before 1929.

The court determined the 1915 map for a 25-lot subdivision in southern Sonoma County is not valid today because the county had very little discretion under the Subdivision Map Act in place at the time. The decision provides a significant victory to local governments concerned about an untold number of antiquated subdivision maps that do not conform to modern-day land use planning principles.

Under the map act's current grandfather clause, an old map is valid today only if the local government had authority to regulate the design and improvement of the proposed subdivision. Although the map act was first enacted in 1893, not until 1929 did the act give local governments the ability to regulate the configuration of parcels and the provision of streets, drainage and other services to serve subdivisions.

The map act as it stood in 1915 offered the local government little discretion as long as the map properly depicted certain items, the court found. "[I]t was the landowner who determined the size and configuration of the lots, the existence and location of roads and utilities, and whether to dedicate land to the public and, if so, where and how much," Justice Sandra Margulies wrote for the court. "The mere requirement that, once the subdivider had made these decisions, they be accurately reflected on the map did not constitute regulation of the subdivision."

Thus, the court concluded, the 1915 subdivision did not qualify for recognition under the map act's grandfather clause.

The decision is the most substantive on antiquated subdivisions since the state Supreme Court's landmark ruling in Gardner v. County of Sonoma, (2003) 29 Cal.4th 990 (see CP&DR, March 2003). In Gardner, the state high court ruled that maps recorded prior to the first Subdivision Map Act in 1893 could not be validated today. The Gardner decision also cast doubt on maps recorded prior to 1929, when the Subdivision Map Act was amended to introduce the concepts of tentative and final maps and to offer local governments substantive discretion.

Deputy Sonoma County Counsel Sue Gallagher said the First District's decision indicates "the courts are going to look to see if the local jurisdiction did have and exercise any discretion. It needs to be some sort of substantive regulation of the underlying subdivision itself."

The Board of Supervisors' resolution approving the 1915 map merely certified that the map was signed and met the technical requirements for recording, according to Gallagher, the winning attorney in the latest case and in Gardner. The board's action was ministerial and involved no discretion over lot configuration or infrastructure, she said. That made the map ineligible for the map act's grandfather clause, she contended.

James Laughlin, a deputy Solano County counsel, called the decision "very helpful" for a case Solano County has appealed. In March, Superior Court Judge Paul Beeman upheld the validity of a 1909 map depicting 25 parcels on 250 acres of agricultural land on the outskirts of Fairfield. The county has appealed that decision to the First District, Division Five. The outcome of Abernathy Valley, Inc. v. County of Solano, No. A121817, could have implications for numerous other old maps in the county, Laughlin said. Some of those maps depict hundreds of tiny lots and make no provision for public services, he said. Similar litigation is under way in Yolo County, as well.

The Sonoma County controversy originated in 2005, when property owner Witt Home Ranch, Inc., filed an application with the county seeking certificates of compliance for 25 lots in the 120-acre "Houx subdivision." Although the subdivision map was recorded in 1915, no one ever acted on it and the same family has owned the 120-acre parcel outside Petaluma since the 1930s. The certificates of compliance, however, would provide legal recognition for 25 lots.

The county's Permit and Resources Management Department refused to issue the certificates of compliance. On appeal, the Board of Supervisors upheld that decision, as well as two other decisions against other property owners seeking certificates of compliance. The board said it would not recognize maps recorded prior to 1919, and would consider maps recorded from 1919 to 1929 on a case-by-case basis because a 1919 amendment to the map act provided the county some degree of substantive review.

Witt Home Ranch sued, arguing the 1915 map provided a legal subdivision. The property owner also contended that Gallagher and Supervisor Valerie Brown violated its due process rights. Sonoma County Superior Court Judge Allan Hardcastle determined the map was not covered by the grandfather clause and that there had been no violation of due process. A unanimous three-judge panel of the First District, Division One, upheld that decision on appeal.

Witt Home Ranch contended that the 1915 statute's regulation of development was sufficient for the map to qualify under the grandfather clause. The law at the time required a map to depict and identify lots, highways and property set aside for public dedication, Witt Home Ranch noted. That is enough to meet the grandfather clause's requirement that a map be approved subject to rules in place at the time regarding design and improvement, the property owner argued.

The county countered that the 1915 law did not regulate design and improvement. The court agreed.

"The requirement that recorded maps accurately depict various features of the subdivision constituted regulation of the drawing depicting the subdivision, rather than regulation of the subdivision's improvement and configuration," Margulies wrote.

"Similar to the 1865 map in Gardner, the Houx map is a planning anachronism, merely a grid laid across a parcel of land," Margulies continued. "There is no indication that any consideration was given to the appropriate siting of residences, lot drainage, the feasibility of construction or utility service, or any of the many other issues that arise when development occurs. It is difficult to imagine a plan for real estate development more at odds with modern subdivision regulation."

For its due process claim, Witt Home Ranch argued that the board's policy of refusing to recognize pre-1919 maps was a "defacto land use ordinance" enacted without proper procedures, that the board's decision was based on communications outside the administrative process, and that Gallagher's advice to the board on the appeal was improper because she also advised planning staff members. The court rejected all three contentions. It found that the policy merely provided guidance to staff, there was no evidence of improper communication, and Gallagher was simply acting as a legal advisor.

The Case:
Witt Home Ranch, Inc. v. County of Sonoma, No. A118911, 08 C.D.O.S. 9802, 2008 DJDAR 11923. Filed July 29, 2008.
The Lawyers:
For Witt Home Ranch: Michael Van Zandt, Hanson Bridgett, (415) 777-3200.
For the county: Sue Gallagher, county counsel's office, (707) 565-2421.
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