California Continues Trend of Not Recognizing Historic Subdivision Parcels

July 18, 2009

Abernathy Valley, Inc. v. County of Solano (2009) 2009 DJDAR 5497, is the most recent of a series of California court rulings limiting the application of certificates of compliance. The background is important. California's Subdivision Map Act ("SMA") prohibits the sale of any parcel of real property absent its creation pursuant to the SMA. To create a parcel under the SMA, the landowner processes and records a subdivision map (5 or more parcels) or parcel map (4 or fewer parcels). The Map Act vests in cities and counties the authority and responsibility for the review and approval of all proposed subdivision maps. This review is extensive: to ensure consistency with local general plans, specific plans and public health and safety requirements; to consider the site's suitability for development and the adequacy of local services; to provide for the protection of natural resources; and, to take steps to ensure the accuracy and validity of the recorded map.

The SMA includes a grandfather provision that exempts existing subdivision maps if those maps were filed before the current law and if they complied with the laws in effect at the time they were recorded. A landowner applies to the applicable local agency (typically the city or county) for a certificate of compliance with confirms the legality of an existing parcel created prior to the current version of California's Subdivision Map Act. The certificate parcel is then deemed to be a legal parcel for all purposes under the SMA and is not subject to further discretionary approvals or environmental review. Gardner v. County of Sonoma (2003) 29 Cal.4th 990, 1005. It is important to note that issuance of a certificate of compliance is ministerial, not discretionary. Findleton v. El Dorado County Bd. of Supervisors (1993) 12 Cal.App.4th 709, 714. If, after reviewing the history of the property, the local agency determines that the parcel was lawfully created and has not been subsequently extinguished, the local agency must issue a certificate of compliance and the parcel may then be separately sold.

In Gardner, the court found that antiquated maps -- in that case, maps recorded before enactment of the state's earliest subdivision regulations in 1893 -- could not satisfy the grandfather provision because those antiquated maps had not been recorded pursuant to laws then in effect which regulated the design and improvement of subdivisions. Of particular significance, Gardner noted that 1943 changes to the subdivision map law added the requirement that recognition of antiquated parcels must be based on legislation regulating the design and improvement of subdivisions. Gardner did not address whether maps recorded after the adoption of California's first subdivision regulations in 1893 and prior to the adoption of the modern SMA in 1929 could be deemed to create legal parcels.

Last year, in Witt Home Ranch, Inc. v. County of Sonoma (2008) 165 Cal.App.4th 543, the court ruled that maps filed in compliance with subdivision map laws in effect in 1915 are not covered by the SMA's grandfather provision. Witt examined the conditions and requirements imposed by the subdivision laws in effect in 1915 and, applying Gardner, found they did not go so far as to regulate the design and improvement of subdivisions.

In the new Abernathy decision, the court was asked whether parcels created by the recordation of a subdivision map in Solano County in 1909 must be recognized by certificates of compliance. In light of the Witt decision, the court summarily found that the 1907 subdivision map law still in effect in 1909 did not regulate the design and improvement of subdivisions.

Also, in Abernathy, the owner argued that the County either had to grant the certificate of compliance unconditionally, or grant it with conditions. The statute, according to the owner, did not permit the County to simply deny the application. The court sided with the County of Solano, noting that if the County were required to issue a conditional certificate, the property owner could separately convey the parcel, even though its subsequent development would be prevented until the conditions were met. Since the SMA prohibits the separate sale of illegal parcels, the County could deny an application for a certificate of compliance.