Appellate Court Limits Recognition of Older Subdivisions

August 27, 2008

It was once thought that California's Subdivision Map Act's grandfather clause gave legal recognition to any lot depicted on an old subdivision map so long as that map complied with, or was exempt from, the subdivision laws in effect at the time. That belief is no longer true as in recent years the courts have narrowed the scope of the Map Act's grandfather clause.

In 2003 the California Supreme Court decided that subdivision maps pre-dating the state's first subdivision law of 1893 were not grandfathered under today's Map Act, and therefore did not create legal parcels by virtue of their recording. Gardner v. County of Sonoma, 29 Cal. 4th 990 (2003). Last month in the first published appellate decision on the issue, a Court of Appeals ruled in Witt Home Ranch v. County of Sonoma, 208 Cal. App. Lexis 1160 (2008) that subdivision maps created, approved and recorded even after 1893, but prior to 1915, also do not qualify for protection under the Map Act's grandfather clause.

The practical implications of these decisions are significant. When owners can prove historic legal lots based on old subdivision maps they can apply for certificates of compliance, which is a legal document issued by a city or county that confirms a parcel's separate legal status. Certificates of compliance can significantly increase the value of the land because multiple parcels can be separately sold, leased, financed and possibly developed.

Many local agencies, on the other hand, take a dim view of certificates of compliance, considering them to be a back door method of subdividing land without regard to current planning regulations and standards, and have resisted recognizing as legal lots those "resurrected" from "paper subdivisions" -- i.e., subdivisions in name only, whose lots were never separately sold or owned.

The Map Act generally prohibits the sale of parcels for which neither a subdivision or parcel map has been recorded. Yet from its earliest versions, the Act has also carved out an exception for parcels created by maps recorded in compliance with earlier versions of the statute. The current version of the Map Act's grandfather clause exempts parcels "in compliance with or exempt from any law (including local ordinance) regulating the design and improvement of subdivisions in effect at the time the subdivision was established." Government Code section 66499.39(d).

In Witt Home, the owner of a 120 acre ranch outside Petaluma applied for certificates of compliance for 25 lots depicted on a 1915 map. The lots had never been separately sold or conveyed. When Sonoma County refused to issue the certificates, the owner sued arguing it was entitled to the certificates because the 1915 map in question complied with the state's version of the Subdivision Map Act as it existed at the time.

This point was not disputed by the Court of Appeal, but was not found to be dispositive of the question of whether the lots were grandfathered. Instead the court focused on the language in the grandfather clause which referred to prior law "regulating the design and improvement" of subdivisions. The court then looked to the Map Act's current definitions of "design" and "improvement" as encompassing both physical infrastructure and a wide array of regulation involving lot size and configuration, utilities and drainage, fire and traffic, and the like. Finally the court reviewed the conditions and requirements imposed by the 1915 version of the Map Act, and determined that that law did not go so far as to regulate matters of "design and improvement." Accordingly, maps recorded in compliance with it still did not qualify for grandfathering under today's Map Act.

Currently there appears to be consensus that subdivision maps recorded in compliance with the 1929 version of the Map Act, or later versions, do in fact create legal parcels. However, as the Witt Home decision signals, at least one appellate court is prepared to limit the scope of the Act's grandfather protection with respect to maps recored earlier.