Untitled California Attorney General Opinion ( 1994 )

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 94-518
of :
: November 18, 1994
DANIEL E. LUNGREN :
Attorney General :
:
CLAYTON P. ROCHE :
Deputy Attorney General :
:
________________________________________________________________________________
THE HONORABLE THOMAS F. CASEY III, COUNTY COUNSEL, SAN MATEO
COUNTY, has requested an opinion on the following question:
May a city or county require a field survey to be performed and a record of survey to be
filed for a lot line adjustment which involves the creation of new points or lines not shown on any
subdivision map, official map, or record of survey, the positions of which are not ascertainable from an
inspection of the subdivision map, official map, or record of survey without trigonometric calculations?
CONCLUSION
A city of county may not require a field survey to be performed or a record of survey to
be filed for a lot line adjustment which involves the creation of new points or lines not shown on any
subdivision map, official map, or record of survey, the position of which are not ascertainable from an
inspection of the subdivision map, official map, or record of survey without trigonometric calculations.
ANALYSIS
This request for our opinion involves the relationship between the Subdivision Map Act
(Gov. Code, '' 66410-66499.37)1 and the Professional Land Surveyors' Act (Bus. & Prof. Code, ''
1
All references hereafter to the Government Code are by section number only.
1. 94-518
8700-8806). Section 66412, a part of the Subdivision Map Act, refers to Business and Professions
Code section 8762, a part of the Professional Land Surveyor's Act, in connection with the approval by a
city or county of a lot line adjustment for adjacent parcels of land. Section 66412 provides:
"This division shall be inapplicable to:
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"(d) A lot line adjustment between two or more existing adjacent parcels, where
the land taken from one parcel is added to an adjacent parcel, and where a greater
number of parcels than originally existed is not thereby created, provided the lot line
adjustment is approved by the local agency, or advisory agency. A local agency or
advisory agency shall limit its review and approval to a determination of whether or not
the parcels resulting from the lot line adjustment will conform to local zoning and
building ordinances. An advisory agency or local agency shall not impose conditions
or exactions on its approval of a lot line adjustment except to conform to local zoning
and building ordinances, to require the prepayment of real property taxes prior to the
approval of the lot line adjustment, or to facilitate the relocation of existing utilities,
infrastructure, or easements. No tentative map, parcel map, or final map shall be
required as a condition to the approval of a lot line adjustment. The lot line adjustment
shall be reflected in a deed, which shall be recorded. No record of survey shall be
required for a lot line adjustment unless required by Section 8762 of the Business and
Professions Code.
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ."
Section 8762 of the Business and Professions Code states in turn:
"After making a survey in conformity with the practice of land surveying, the
surveyor or civil engineer may file with the county surveyor in the county in which the
survey was made, a record of the survey.
"After making a survey in conformity with the practice of land surveying, the
licensed land surveyor or registered civil engineer shall file with the county surveyor in
the county in which the survey was made a record of the survey relating to land
boundaries or property lines, if the survey discloses any of the following:
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"(d) The establishment of one or more points or lines not shown on any
subdivision map, official map, or record of survey, the positions of which are not
ascertainable from an inspection of the subdivision map, official map, or record of
survey without trigonometric calculations.
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ."
2. 94-518
We are asked whether a city or county may require a field survey to be made and a record of survey to
be filed for a lot line adjustment which involves the creation of new points or lines not shown on any
subdivision map, official map, or record of survey, the positions of which are not ascertainable from an
inspection of a subdivision map, official map, or record of survey without trigonometric calculations.
We conclude that a field survey and record of survey may not be required based upon such
circumstances alone.
In 76 Ops.Cal.Atty.Gen. 19, 23 (1993), we recently summarized the general purposes of
the Subdivision Map Act as follows:
". . . The Subdivision Map Act (Gov. Code, '' 66410-66499.37; `Act') establishes
general criteria for land development planning in the creation of subdivisions
throughout the state. Cities and counties are given authority under the legislation to
regulate the design and improvement of divisions of land in their areas through a
process of approving subdivision maps required to be filed by each subdivider. (''
66411; Santa Monica Pines, Ltd. v. Rent Control Board, supra, 35 Cal. 3d 858, 869;
South Central Coast Regional Com. v. Charles A. Pratt Construction Co. (1982) 128
Cal. App. 3d 830, 844-845.) A subdivider must obtain approval of the appropriate map
before the subdivided parcels are offered for sale, or lease, or are financed.
('' 66499.30, 66499.31; Bright v. Board of Supervisors (1977) 66 Cal. App. 3d 191,
193-194.)
"The Act sets forth procedures by which cities and counties may impose a variety
of specific conditions when approving the subdivision maps. Such conditions typically
cover streets, public access rights, drainage, public utility easements, and parks, among
other improvements. ('' 66475-66489; see Associated Home Builders etc., Inc. v.
City of Walnut Creek (1971) 4 Cal. 3d 633, 639-647; Ayers v. City Council of Los
Angeles (1949) 34 Cal. 2d 31, 37-43.)"
The Professional Land Surveyors' Act, on the other hand, regulates the practice of land
surveying in this state by licensing those engaged in that profession. It also permits, and in some cases
requires, the filing of records of surveys with county surveyors, which are ultimately filed with county
recorders. (See Bus. & Prof. Code, ' 8762.)
Looking first at the specific provisions of section 66412, we find that a "local agency"
(i.e., a city or county, ' 66420), is empowered to approve lot line adjustments, and in so doing, remove
them from the purview of the Subdivision Map Act ("This division"). In so doing, the local agency is
subjected to the following limitations: (1) the review shall be limited to a determination whether
the lot line adjustment conforms to local building and zoning ordinances; (2) no exactions or conditions
are to be imposed except those: (a) which are necessary to conform the lot line adjustment to building
and zoning ordinances; (b) which require the payment of property taxes; (c) which facilitate the
relocation of utilities, infrastructure, or easements; (3) no tentative, parcel map, or final map shall be
required; and (4) no record of survey shall be required unless required by section 8762 of the Business
and Professions Code.
3. 94-518
With respect to the express provisions of Business and Professions Code section 8762,
we note that it requires the filing of a record of survey only if a professional surveyor or civil engineer
has made a field survey in the first instance. It does not require surveys to be made and only requires
records of surveys to be filed if the property owner first obtains a survey for his or her own purposes.
In interpreting the statutory provisions in question, we may rely upon several principles
of statutory construction. "In construing a statute, a court's objective is to ascertain and effectuate the
underlying legislative intent." (Moore v. California State Board of Accountancy (1992) 2 Cal. 4th 999,
1012.) "In determining intent, we look first to the language of the statute, giving effect to its `plain
meaning.'" (Kimmel v. Goland (1990) 51 Cal. 3d 202, 208-209.) "`[C]ourts are no more at liberty to
add provisions to what is therein declared in definite language than they are to disregard any of its
express provisions.'" (Wells Fargo Bank v. Superior Court (1991) 53 Cal. 3d 1082, 1097.)
We believe that the language of section 66412 is plain and unambiguous. A local
agency may not require a record of survey for a lot line adjustment except where one is "required by
Section 8762 of the Business and Professions Code." The latter statute does not require a record of
survey unless the property owner has first obtained a survey.
A city or county itself cannot require a survey to be made or a record of survey to be
filed since neither condition is allowable under the express terms of section 66412. Pursuant to the
statute, the only authorized conditions that may be imposed at the time of reviewing a lot line
adjustment application relate to zoning and building ordinances, real property tax payments, and the
relocation of existing utilities, infrastructure, and easements.
In short, a city or county must "limit its review and approval to a determination of
whether or not parcels resulting from the lot line adjustment will conform to local zoning and building
ordinances." (' 66412, subd. (d).) We have examined in detail the legislative history of section
66412 and have found nothing that is inconsistent with the plain wording of the statute as herein
discussed.
We recognize that cities and counties have broad police power authority to regulate
subdivisions and land uses within their jurisdictions. (See Griffin Development Company v. City of
Oxnard (1985) 39 Cal. 3d 256, 261-264; Santa Monica Pines, Ltd. v. Rent Control Board (1984) 35
Cal. 3d 858, 868-869; Birkenfeld v. City of Berkeley (1976) 17 Cal. 3d 129, 140.) Section 7 of article
XI of the Constitution provides: "A county or city may make and enforce within its limits all local,
police, sanitary, and other ordinances and regulations not in conflict with the general laws."
Nevertheless, the constitutional grant of authority is not without limitation; where a local police power
ordinance conflicts with general law, it is void. (Cohen v. Board of Supervisors (1985) 40 Cal. 3d 277,
290; A & B Cattle Co. v. City of Escondido (1987) 192 Cal. App. 3d 1032, 1038.) Here, section 66412
controls what a city or county may require when reviewing a lot line adjustment application.
Accordingly, we conclude that a city or county may not require a field survey to be
performed or a record of survey to be filed for a lot line adjustment which involves the creation of new
points or lines not shown on any subdivision map, official map, or record of survey, the positions of
4. 94-518
which are not ascertainable from an inspection of the subdivision map, official map, or record of survey
without trigonometric calculations.
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5. 94-518