Another Antiquated Subdivision Map Rejected

In the third decision in an emerging line of cases regarding antiquated subdivisions, an appellate court has refused to recognize the legality of a parcel shown on a 1909 subdivision map.

The First District Court of Appeal ruled the Solano County map did not satisfy the requirements of the Subdivision Map Act's grandfather clause because the law in effect in 1909 did not address the "design and improvement" of subdivisions. The court also ruled that, despite ambiguous statutory language, the Solano County Board of Supervisors had the authority to refuse approval of a certificate of compliance for a parcel shown on the 1909 map.

The legal status of lots depicted on old subdivision and parcel maps was unclear for years. Property owners whose land is covered by an old map have used the maps to get certificates of compliance, which verify the legal status of the lots. Until a state law was passed in 2001, property owners would use certificates of compliance in conjunction with multiple lot line adjustments to create subdivisions that would almost certainly not get approved in the present day (see CP&DR, November 2001).

The state Supreme Court began to clarify the situation when it ruled in Gardner v. County of Sonoma, (2003) 29 Cal.4th 990, that maps recorded prior to the first Subdivision Map Act in 1893 could not be validated (see CP&DR, March 2003). Last year, an appellate court relied heavily on Gardner in upholding Sonoma County's refusal to recognize a 1915 subdivision map (Witt Home Ranch, Inc. v. County of Sonoma, (2008) 165 Cal.App.4th 543; see CP&DR Legal Digest, September 2008). The present case builds on Witt.

In 2002, Abernathy Valley, Inc., acquired 140 acres in Solano County's Green Valley, west of Fairfield. The property contains part or all of 14 lots depicted on a recorded 1909 subdivision map that divided a 250-acre tract into 25 lots. In 2003, Abernathy applied for a certificate of compliance for only "Lot 12" as shown on the 1909 map, effectively dividing the 140 acres into two parcels. On advice of county counsel, the Board of Supervisors voted to deny the certificate and instructed staff members to recognize lots only on maps approved after 1929.

Abernathy sued and Solano County Superior Court Judge Paul Beeman ruled the county must issue the requested certificate of compliance. A unanimous three-judge panel of the First District, Division Five, overturned that ruling.

The "central question," according to the appellate court, was whether the 1909 map was covered by the Subdivision Map Act's grandfather provisions. It is generally accepted that maps approved after 1929 are grandfathered today because lawmakers amended the Subdivision Map Act in 1929 to cover the design and improvement of subdivisions. Before 1929, the act was primarily concerned with accurate map drafting, not the subdivision itself. However, the Gardner decision left open the question of whether maps recorded from 1893 – the year of the first subdivision statute – to 1929 establish subdivisions today.

Abernathy argued its map qualified for the grandfather provision because the map was recorded in compliance with the law in effect at the time. But the court, citing Witt, rejected the argument because lawmakers in 1943 narrowed the grandfather clause by adding the term "design and improvement." Only maps that regulate the "design and improvement" of subdivisions are eligible for grandfathering, the court ruled.

"Witt rejected the argument that the modern grandfather language ‘was intended merely to codify the all-encompassing language that had been a feature of the subdivision map statutes since 1907, without changing its broad scope,' which is essentially Abernathy's argument in this appeal," Justice Lawrence Stevens wrote for the court. "We agree with Witt."

Abernathy argued that refusing to recognize the 1909 map now would amount to an improper retroactive application of the statute because property owners have relied on the map for nearly a century. The court rejected the argument because Abernathy offered no evidence Lot 12 was ever separately conveyed, that the map "altered the legal status of the property" or that application of the current law would alter the property's legal status.

Abernathy also argued that under a provision of the map act, specifically, Government Code § 66499.35, subdivision (d), the county could either grant the requested certificate of compliance, or grant a conditional certificate of compliance. The county had no authority to deny the application, Abernathy argued.

The court called the statute ambiguous but noted that other courts have upheld the government's right to deny certificates of compliance.

"[I]f the county were required to issue a conditional certificate of compliance for Lot 12 rather than deny the application, Abernathy would be able to sell, lease or finance Lot 12 without further compliance with the act; only the development of the parcel would be prohibited until the conditions were fulfilled. … Such a result," wrote Stevens, citing Gardner, "would ‘frustrate the act's objectives "to encourage and facilitate orderly community development, coordinate planning with the community pattern established by local authorities, and assure proper improvements are made, so that the area does not become an undue burden on the taxpayer."'

"Our Supreme Court and the courts of appeal have upheld denials of applications for certificates of compliance under such circumstances," Stevens concluded.

The court also ruled that denial of the certificate did not violate Abernathy's right of due process.

The Case:
Abernathy Valley, Inc. v. County of Solano, No. A121817, 09 C.D.O.S. 4684, 2009 DJDAR 5497. Filed April 17, 2009.

The Lawyers:
For Abernathy: James Corn, Stoel Rives, (916) 447- 0700.
For the county: James Laughlin, county counsel's office (707) 421-6140.