Untitled California Attorney General Opinion ( 1991 )

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 91-105
of :
: August 13, 1991
DANIEL E. LUNGREN :
Attorney General :
:
RODNEY O. LILYQUIST :
Deputy Attorney General :
:
______________________________________________________________________________
THE HONORABLE MICHAEL H. KRAUSNICK, COUNTY COUNSEL OF
STANISLAUS COUNTY, has requested an opinion on the following question:
Is a county required to issue certificates of compliance for 15 lots that were described
on a map properly recorded under a predecessor statute to the Subdivision Map Act, as well as local
ordinances enacted thereunder, and for fractions of 17 other lots described on the map, which
fractions were subsequently created by metes and bounds conveyances by deeds in which none of
the lots were identified or recognized?
CONCLUSION
A county is required to issue certificates of compliance for 15 lots that were described
on a map properly recorded under a predecessor statute to the Subdivision Map Act, as well as local
ordinances enacted thereunder, and certificates of compliance or conditional certificates of
compliance for fractions of 17 other lots that were described on the map, which fractions were
subsequently created by metes and bounds conveyances in which none of the lots were identified
or recognized.
ANALYSIS
We are informed that in 1914 a map was properly recorded under a predecessor
statute to the Subdivision Map Act (Gov. Code, §§ 66410-66499.37; hereafter "Act"),1 as well as
local ordinances enacted thereunder, describing 68 lots of approximately 20 acres each in size. None
of the lots were sold, and subsequent records ignored their existence and described the property as
a single parcel. In 1941 deeds were recorded that conveyed a portion of the property by metes and
1
All section references hereafter are to the Government Code unless otherwise specified.
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bounds description.2 The boundaries on the deeds cut through 17 of the lots. What remains today
and the focus of the present inquiry is the area of 15 of the original lots plus the 17 fractions of lots.
The specific question presented for resolution is whether "certificates of compliance"
(§ 66499.35) must be issued for these lots and fractions of lots. After describing the effects of such
certificates, we will conclude that they must be issued for the 15 lots but not for the 17 fractions of
lots. However, conditional certificates of compliance must be issued for the 17 fractions, if
certificates of compliance are not issued for them.
Section 66499.35 provides:
"(a) Any person owning real property . . . may request, and a local agency
shall determine, whether such real property complies with the provisions of this
division and of local ordinances enacted pursuant thereto. Upon making such a
determination the city or the county shall cause a certificate of compliance to be filed
for record with the recorder of the county in which the real property is located. The
certificate of compliance shall identify the real property and shall state that the
division thereof complies with applicable provisions of this division and of local
ordinances enacted pursuant thereto . . . .
"(b) If a local agency determines that such real property does not comply with
the provisions of this division or of local ordinances enacted pursuant thereto, it shall
issue a certificate of compliance or a conditional certificate of compliance. A local
agency may, as a condition to granting a certificate of compliance, impose such
conditions as would have been applicable to the division of the property at the time
the applicant acquired his or her interest therein, and which had been established at
such time by this division or local ordinance enacted pursuant thereto, except that
where the applicant was the owner of record at the time of the initial violation of the
provisions of this division or of local ordinances enacted pursuant thereto, and such
person is the current owner of record of one or more of the parcels which were
created as a result of the grant in violation of the division or local ordinances enacted
pursuant thereto, then the local agency may impose such conditions as would be
applicable to a current division of the property. Upon making such a determination
and establishing such conditions the city or county shall cause a conditional
certificate of compliance to be filed for record with the recorder of the county in
which the real property is located. . . . the fulfillment and implementation of such
conditions shall be required prior to subsequent issuance of a permit or other grant
of approval for development of the property.
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ."3
A certificate of compliance thus establishes that the "property complies with the
provisions of [the Act] and of local ordinances enacted pursuant thereto." Such a determination is
2
A metes and bounds description gives the boundary lines of the property with their terminal
points and angles. Essentially, it is any description other than by reference to particular lots and
parcels on a recorded subdivision map. (See Merritt, Metes and Bounds Descriptions: A Red Flag
Forewarning Possible Subdivision Map Act Violations (Cont.Ed.Bar 1990) 13 Real Prop. L. Rep.
117 (hereafter "Metes and Bounds").)
3
"This division" is the Act.
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significant in that divisions of land in violation of the Act may result in criminal prosecution (§
66499.31), rescission of conveyance transactions (§ 66499.32), a claim for damages (§ 66499.32),
a court injunction (§ 66499.33), and the withholding of development permits (§ 66499.34), among
other consequences. ( See Cal. Subdivision Map Act Practice (Cont.Ed.Bar 1987) §§ 8.1-8.8, pp.
197-205, hereafter "CEB"; 2 Longtin, Cal. Land Use Regulations (2d ed. 1987) §§ 6.60-6.62, pp.
702-707.)
The Act's predecessor statutes may be traced back to 1893 as legislation with
statewide impact. (Stats. 1974, ch. 1536; Stats. 1943, ch. 128; Stats. 1937, ch. 670; Stats. 1929, ch.
838; Stats. 1907, ch. 231; Stats. 1893, ch. 80; see Hays v. Vanek (1989) 217 Cal. App. 3d 271, 289;
64 Ops.Cal.Atty.Gen. 549, 551-552 (1981); CEB, supra, § 1.2, pp. 2-3; 2 Longtin, supra, § 6.02,
pp. 582-583; Metes and Bounds, supra, p. 119.) Even earlier statutes required the mapping of
subdivided public lands and private lands to be sold within individual cities and towns. (See, e.g.,
Stats. 1867-1868, ch. 331 [San Francisco].)
To what extent and under what conditions do parcels created under one of the Act's
predecessor statutes or in any manner other than pursuant to the current provisions of the Act
"comply" with the Act as it presently reads?
Section 66412.6 states in part:
"(a) For purposes of this division or of a local ordinance enacted pursuant
thereto, any parcel created prior to March 4, 1972, shall be conclusively presumed
to have been lawfully created if at the time of the creation of the parcel there was
compliance with any local ordinance or there was no local ordinance in effect which
regulated divisions of land creating fewer than five parcels.
"(b) For purposes of this division or of a local ordinance enacted pursuant
thereto, any parcel created prior to March 4, 1972, shall be conclusively presumed
to have been lawfully created if any subsequent purchaser acquired that parcel for
valuable consideration without actual or constructive knowledge of a violation of this
division or the local ordinance. Owners of parcels or units of land affected by the
provisions of this subdivision shall be required to obtain a certificate of compliance
or a conditional certificate of compliance pursuant to Section 66499.35 prior to
obtaining a permit or other grant of approval for development of the parcel or unit
of land. . . ."
With respect to the 15 original lost created in 1914, they were "created prior to March
4, 1972," for purposes of section 66412.6.4 These lots were also created in "compliance with any
local ordinance" in effect in 1914. Accordingly, the 15 lots in question are "conclusively" presumed
valid under the terms of section 66412.6, subdivision (a).
With respect to the 17 fractions of lots, they too were created prior to March 4, 1972
for purposes of section 66412.6. However, these fractions of lots were not created until 1941, when
deeds were recorded conveying portions of the lots by metes and bounds description. We do not
have the additional fact that the 17 fractions of lots were created in compliance with applicable 1941
4
The 1972 date is significant in that it was the effective date of the amendments to the Act (Stats.
1971, ch. 1446) requiring a map of divisions of four or fewer parcels. "Before this change, the
requirement of a parcel map for these divisions was left to the dictates of individual cities and
counties." (Metes and Bounds, supra, p. 121; see CEB (Supp. 1990) § 2.18, p. 9.)
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local ordinances. In fact, since the 1941 deeds did not create "fewer than five parcels," a map was
required to be recorded under the 1941 version of the Act and local ordinances enacted thereunder.
(See §§ 66424, 66499.30; 58 Ops.Cal.Atty.Gen. 593 (1975) [parcels created under a recorded
subdivision map that had portions of each condemned through eminent domain proceedings required
the filing of a new map in order to sell the remaining portions].) Thus the 17 fractions do not qualify
for the conclusive presumption of section 66412.6, subdivision (a). The fractions would also not
qualify under subdivision (b) of the statute, since the 1941 violation would be in the "chain of title,"
giving subsequent purchasers actual or constructive knowledge of the violation. (See Keiser v.
Adams (1970) 2 Cal. 3d 976, 979; CEB (Supp. 1990) § 2.18, pp. 9-10; Metes and Bounds, supra, pp.
121-122.) In any event, a certificate of compliance or conditional certificate of compliance must still
be obtained under this subdivision "prior to obtaining a permit or other grant of approval for
development. . . ."
One other statute requires analysis in order to fully answer the question submitted.
Subdivision (a) of section 66451.10 states:
"Notwithstanding Section 66424, except as is otherwise provided for in this
article, two or more contiguous parcels or units of land which have been created
under the provisions of this division, or any prior law regulating the division of land,
or a local ordinance enacted pursuant thereto, or which were not subject to those
provisions at the time of their creation, shall not be deemed merged by virtue of the
fact that the contiguous parcels or units are held by the same owner, and no further
proceeding under the provisions of this division or a local ordinance enacted
pursuant thereto shall be required for the purpose of sale, lease, or financing of the
contiguous parcels or units, or any of them."5
As long as the parcels "have been created under . . . any prior law regulating the division of land . . .
no further proceeding under the provisions of this division or a local ordinance enacted pursuant
thereto shall be required . . . ." (See § 66499.30, subd. (d) [filing a map is not required for any
parcels of a subdivision "in compliance with . . . any law . . . regulating the design and improvement
of subdivisions in effect at the time the subdivision was created"].)
The 15 lots qualify under section 66451.10 for separate treatment without any further
proceedings under the Act or local ordinances enacted thereunder. (See also § 66468 ["The filing
for record of a final or parcel map by the county recorder shall automatically and finally determine
the validity of such map and when recorded shall impart constructive notice thereto"]; County of Los
Angeles v. Hartford Acc. & Indem. Co. (1970) 3 Cal. App. 3d 809, 814 ["The recording of a final tract
map for a normal subdivision automatically converts what was formerly a single parcel into as many
separate lots as appear on the tract map"]; 59 Ops.Cal.Atty.Gen. 239, 241 (1976) ["A parcel once
recorded under the Subdivision Map Act need not be re-recorded so long as it is not further
divided"].) While various statutory means exist to change the configuration of lots described on a
valid subdivision map (see §§ 66412, 66499.11-66499.20 3/4; 64 Ops.Cal.Atty.Gen. 549, 553
(1981)), absence of their description in subsequent deeds of conveyances is not an authorized
method. (See also Civ. Code, § 1093; Hunt v. County of Shasta, supra, 225 Cal. App. 3d 432, 437-
439.) Accordingly, the provisions of sections 66412.6 and 66451.10 are consistent in validating the
5
Section 66424 is the basic provision of the Act defining a "subdivision" as "the division ... of
any unit or units of improved or unimproved land, or any portion thereof ... for the purpose of sale,
lease, or financing, whether immediate or future ...." The article of the Act of which section
66451.10 is a part deals with the merger of parcels by local ordinance (§§ 66451.10 - 66451.21); a
separate article deals with unmerger. (§§ 66451.30 - 66451.33.)
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15 lots described on the 1914 map, regardless of the later recordation of deeds that failed to refer
to them.
The 17 fractions of lots are a different matter. They are not identified on the 1914
subdivision map, since they were created by deeds of conveyances in 1941. Their creation violated
the requirement of a filed subdivision map under the Act or its predecessor statutes. Nonetheless,
each qualifies for a conditional certificate of compliance under subdivision (b) of 66499.35, if not
a certificate of compliance. As specified in the statute, however, the county may "impose such
conditions as would have been applicable to the division of the property at the time the applicant
acquired his or her interest therein" or conditions applicable to current divisions if the applicant was
the one who caused the violation. (See § 66499.34; Keiser v. Adams, supra, 2 Cal. 3d 976, 981;
CEB, supra, § 8.9, pp. 207-208.)
In this regard, we note that even if conditional certificates of compliance are issued
for the 17 fractions of lots, the county may prevent development of the lots pursuant to section
66499.34 regardless of when or by whom the violations occurred. Section 66499.34 states in part:
"No local agency shall issue any permit or grant any approval necessary to
develop any real property which has been divided, or which has resulted from a
division, in violation of the provisions of this division or of the provisions of local
ordinances enacted pursuant to this division if it finds that development of such real
property is contrary to the public health or the public safety. . . ."
Thus, for example, the county "may refuse to issue a building permit or to grant a rezoning variance
or a conditional use permit for a parcel that results from a division of land that violated the Map Act
. . . [if] based on a finding that development would be contrary to public health and safety." (CEB,
supra, § 8.6, p. 203.)
Finally, we necessarily point out that the certificates referred to in section 66499.35
are issued only for purposes of and with respect to the requirements of the Act and local ordinances
enacted thereunder. The same is true regarding the presumptions of section 66412.6 and the
proceedings specified in section 66451.10. Other land use regulations are unaffected by the
certificates and would require compliance with respect to the proposed activity to the extent
applicable under their own statutory schemes and ordinances.
In answer to the question presented, therefore, we conclude that a county is required
to issue certificates of compliance for 15 lots that were described on a map properly recorded under
a predecessor statute to the Subdivision Map Act, as well as local ordinances enacted thereunder,
and certificates of compliance or conditional certificates of compliance for fractions of 17 other lots
that were described on the map, which fractions were subsequently created by metes and bounds
conveyances in which none of the lots were identified.
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