An attempt to certify the validity of parcels in Ventura County created during the 1940s has been rejected by the Second District Court of Appeal. The court found that the land in question was subdivided illegally during the 1940s, and the county has no obligation to recognize the subdivision now.
The case marks yet another effort by courts to determine the validity of an antiquated subdivision under the Subdivision Map Act. Although the court’s decision turned on its interpretation of the 1937 and 1943 versions of the map act, the facts of this case were telling.
In September 1940, LA-Ventura Land Co. recorded a survey that purported to divide the southern portion of a 140-acre parcel near Simi Valley into 15 parcels. From September 7, 1940, to August 16, 1941, LA-Ventura Land conveyed 10 parcels. The company retained four parcels. Thus, the conveyances created 14 parcels from the original 140-acre “parent” parcel, according to the court.
In 1943, LA-Ventura Land sold a portion of a retained parcel to Harry Kahn, who divided the land into four lots. Twice during the 1950s, LA-Ventura Land sold portions of a retained parcel.
More recently, George and Evelyn Meltzer purchased what the court described as a “potpourri of parcels, some of the original 10 conveyances and others later conveyed from the retained parcel.” In 2001, the Meltzers applied to Ventura County for certificates of compliance for 12 parcels. A certificate of compliance verifies a parcel’s legality.
The Meltzers argued that the 1940 survey created 10 of the parcels, and the “annual quartering exception” to the map act made two later conveyances legal parcels. The county surveyor determined two of the parcels were legal and issued two certificates of compliance. Later, the county said that was an error but it did not retract the certificates.
The holders of an option to purchase the Meltzers’ land, Wayne and Carol Fishback, then sued to forced the county to issue certificates of compliance for 10 more parcels. They also sued over a county ordinance requiring a person seeking a certificate of compliance to file an application, survey and maps, and to pay a fee.
Ventura County Superior Court Judge Kent Kellegrew ruled for the county. A unanimous three-judge panel of the Second District, Division Six, upheld the lower court.
In their appeal, the Fishbacks dropped their contention that the 1940 survey created 10 parcels. Instead, they relied on what they called the “annual quartering exception” to the Subdivision Map Act (SMA). Under the 1937 and 1943 versions of the map act, the division of a parcel into four or fewer parcels within one year was not governed by the statute. However, in less than a year, LA-Ventura Land created 14 parcels, 10 of which it conveyed to other entities.
“The Fishbacks argue that under the annual quartering exception, the first four parcels conveyed are legal,” Presiding Justice Arthur Gilbert explained in the court’s opinion. “But the SMA defined a subdivision as a division of a unit of land into five or more parcels in any one-year period. Once the fifth parcel is created within a one-year period, all the parcels created within that year constitute a subdivision.”
The Fishbacks tried a number of arguments to get around this conclusion. The Fishbacks contended that the land retained by LA-Ventura Land was a “remainder parcel” not governed by the map act. Essentially, a divider of land may designate a remainder parcel that is not part of the land division. But the court pointed out that the remainder parcel provision was not added to the map act until 1979, so it did not apply here. The court also shot down the Fishback’s other attempts to parse the map act in their favor.
The court further refused to let the Fishbacks rely on a 1969 attorney general’s opinion, Subdivision of Contiguous Real Property, 52 California Attorney General Opinion 79. In that opinion, the attorney general said that a lot retained by a subdividing landowner did not require a subdivision map because the landowner did not intend to convey the retained parcel.
“The flaw in the attorney general’s reasoning,” Justice Gilbert wrote, “is the assumption that the intent to sell, lease or finance must apply to each parcel created by the division of a unit of land. The definition of subdivision applies if a unit or a portion of a unit of land is divided for sale. … It is irrelevant that the owner may not have had the intent to sell all of the parcels in the unit.”
The Fishbacks also argued that, at the very least, the four parcels that Harry Kahn created in 1943 were legal. Again, the court said no.
“LA Land conveyed an illegal parcel to Kahn. It was part of an illegal subdivision created when LA Land conveyed 10 lots from the parent parcel within a year. In effect, the Fishbacks argue that four legal parcels can be created by dividing an illegal parcel,” the court ruled.
The court then turned to the validity of the county’s ordinance regarding certificate of compliance applications. The Fishbacks argued that the county’s requirements conflict with Government Code § 66499.35, subdivision (b), which is the portion of the map act regarding certificates of compliance. The Superior Court ruled that the statute of limitations barred the Fishback’s challenge of the county ordinance, and the Second District agreed. Because the Fishbacks were contesting the validity of the ordinance itself — and not the county’s application of the ordinance to their situation — the Fishbacks had to sue within 90 days of the county’s adoption of the ordinance. That timeframe has long since passed.
The Case:
Fishback v. County of Ventura, No. B177462, 05 C.D.O.S. 9370, 2005 DJDAR 12739. Filed October 26, 2005.
The Lawyers:
For Fishback: Kate Neiswender, (805) 649-5575.
For the county: Linda Ash, county counsel’s office, (805) 654-2580.
