In its first ruling directly addressing the validity of "antiquated subdivisions," the California Supreme Court has held that maps recorded prior to adoption of the first precursor to the Subdivision Map Act in 1893 do not create legal parcels for today's purposes.

The court's unanimous decision came in a case from Sonoma County, where a landowner sought certificates of compliance for 12 lots based on a map recorded in 1865 by a previous landowner.

"Consistent with the Map Act's salutary purposes to facilitate local regulation of the design and improvement of subdivisions so as to encourage orderly community development, we hold that antiquated subdivision maps, recorded in the absence of an applicable subdivision statute, ordinance, or regulation, did not in themselves establish subdivisions or create legal parcels that mandate the issuance of certificates of compliance for the subdivided parcels they depict," Justice Marvin Baxter wrote for the court.

Sonoma County Deputy County Counsel Sue Gallagher, who argued the case at the Supreme Court, was pleased with the ruling. "It not only clarifies that we would not recognize pre-1893 maps, but it sets up a framework for handling other old maps," she said.

"The court did not simply draw a bright line at 1893," Gallagher insisted. Instead, the court ruled that discretionary local agency approval of a map — or the conveyance of individual parcels — was required to create legal parcels, she said.

In helping argue the property owner's case, Pacific Legal Foundation attorney James Burling said that government regulators should not apply today's standards to old maps. Landowners could not have complied with a planning system that did not exist at the time, he said. Prior to 1893, it was common for a landowner to hire a surveyor and then record a map with the county, Burling explained. The 1893 law set standards for the maps. There was no purpose for the maps other than establishing new lots, he contended.

Burling said he was surprised at the unanimity of the court's decision. But, he noted, the court made a statutory interpretation and did not weigh the constitutional property rights at issue.

The case at hand was brought by the Gardner family, which owns about 158 acres west of Sebastopol. The Gardners' property contains two full lots and 10 fractional lots depicted on a map recorded in 1865 by landowner S.H. Greene. The property currently is zoned Resource and Rural Development and is the subject of a timber harvest plan.

In 1996, the Gardners applied for 12 certificates of compliance based on the 1865 map. The county rejected the application; the Board of Supervisors found that recognizing the old map would undermine "rational land use planning."

The Gardners sued, but they lost in Sonoma County Superior Court and at the First District Court of Appeal (see CP&DR Legal Digest, November 2001). The state Supreme Court then accepted the case.

The state's high court had only nibbled at the edge of the issue in Morehart v. County of Santa Barbara, (1994) 7 Ca.4th 725, which dealt with applying the Subdivision Map Act's merger provision to an 1888 map. Appellate courts have touched on some of the issues. But attorneys on both sides agreed the Sonoma County case offered a clean set of facts for the Supreme Court to address question of how to treat antiquated subdivisions.

Cities, counties, the state Attorney General's office and the California Chapter of the American Planning Association argued on one side. The landowner and property rights attorneys took the other side. In an opinion that reads in places like a treatise on the need for land use planning, Justice Baxter sided clearly with the first group.

A property owner, Baxter wrote, may receive a certificate of compliance for a parcel from a city or county if the property complies with the map act and the applicable local ordinances. In this case, the 1865 Greene map was neither a "final map" nor a "parcel map" as defined by the map act, according to Baxter. And the Gardners did not argue that the Greene map was an "official map" under the map act. Because the 1865 map was none of these, it did not qualify for a certificate of compliance, the court ruled.

The court rejected the property owners' argument that the map act's grandfather provisions — Gov. Code § 66499.30(d) and §66451.10(a) — applied to the 1865 map. Instead, the court held that §66499.30(d), when read with other sections of the statute, "protect[s] subdivisions that either were already approved by local agencies, or were deemed exempt under previous subdivision laws in effect at the time the subdivisions were established." But there was no mechanism for local agency review and approval of maps prior to 1893. And there was no law from which the map could have been exempted.

The court then specifically refuted Burling's argument that the 19th century maps were a method of creating subdivisions.

"[U]nlike a modern-day final map or parcel map, which upon recordation ordinarily converts what was formerly a single parcel into as many separate lots as appear on the map, the recordation of a subdivision map in Sonoma County in 1865, without something more (such as a conveyance), could not and did not work a legal subdivision of the property shown thereon, and property owners who recorded subdivision maps in Sonoma County in 1865 generally remained free to deed parcels and lots as they desired without regard to the depicted subdivision," Baxter wrote.

The other section on which the Gardners based their grandfather argument — § 66451.10(a) — is the map act's "anti-merger" provision. It prevents a local agency from automatically merging contiguous legal parcels that have the same ownership. The property owners argued that, under Morehart, lots in a pre-1893 map are presumed to exist if the map was drawn accurately and sufficiently describes the property.

"Section 66451.10(a) does not, however, address the creation of parcels in the first instance," Baxter wrote. "Nor does it provide a basis for legal recognition of subdivided lots depicted on antiquated maps." The Morehart court, Baxter continued, "purposely refrained from addressing the validity of subdivision maps recorded before 1893."

"Not only does the Subdivision Map Act not support plaintiffs' position," Baxter wrote, "but issuing certificates of compliance based on the map Greene filed in 1865 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 became an undue burden on the taxpayer.'"

In a footnote, the court cited the Board of Supervisors finding that the Greene map was "for the most part, drawn in a simple grid, without regard to topography, natural resources, and community needs and without community review." Issuing certificates of compliance for such a map today, the court ruled, would thwart the Subdivision Map Act.

The court specifically said it was not ruling on maps recorded after 1893. But Gallagher noted that the court opinion focuses on local agency approval of the "design and improvement" of subdivisions.

"It's very significant to us that they left open the question of maps recorded after 1893," she said.


The Case: Gardner v. County of Sonoma, No. S102249, 03 C.D.O.S. 2003 DJDAR 1429. Filed February 6, 2003.

The Lawyers:

For Gardner: Leslie Perry, Perry, Johnson, Murray, Anderson, Miller & Moskowitz, (707) 525-8800.

For the county: Sue Gallagher, county counsel's office, (707) 565-2421.