Abernathy Valley, Inc. v. County of Solano

Next, we will address Abernathy’s argument that applying the current act to those parcels would be an impermissible retrospective application of law. Then we will consider Abernathy’s argument that the County did not have the power to deny its application for a certificate of compliance, but had to choose one of only two statutory options: granting an unconditional certificate of compliance or granting a conditional certificate of compliance.

The regulation of real property subdivision and development in California has evolved significantly over the last 150 years. In the late 19th century, the California Supreme Court affirmed the practice of relying on external documents, including subdivision maps, to provide property descriptions in deeds and other instruments of conveyance. (De Sepulveda v. Baugh (1887) 74 Cal. 468 , 473-474 [ 16 P. 223 ].) In 1893, the state Legislature adopted the first statewide act designed to regulate subdivision map drafting to ensure the maps’ accuracy and completeness. (Stats. 1893, ch. LXXX, pp. 96-97.) The act was amended in 1901 to somewhat tighten the drafting requirements and to give local governments the opportunity to accept or reject property that was shown on a subdivision map as dedicated to public use. (Stats. 1901, ch. CXXIV, § 1, pp. 288-289.) In 1907, the drafting standards for the maps were again strengthened. (Stats. 1907, ch. 231, pp. 290-292.) This was the state of the law when the Pierce Map was recorded.

Beginning in 1913 and continuing through 1943, the Legislature increasingly authorized local governments to exert substantive control over the division of property, rather than simply regulating the content and accuracy of subdivision maps. Legislation enacted in 1913 authorized local governments to withhold approval of maps unless public highways shown on the maps conformed as nearly as practicable to adjoining streets and highways. (Stats. 1913, ch. 306, § 4, p. 570.) Additional substantive review requirements were added in 1919 and 1921. (Stats. 1919, ch. 349, § 1, pp. 725-726 [requiring assessor and surveyor or engineer to assess residential or commercial value of lots and report to the governing body]; Stats. 1921, ch. 592, § 1, pp. 1002-1003 [if natural waterway crossed map, allowing governing body to condition approval on dedication of easement or conveyance of right of way for storm drainage purposes].) Meanwhile, in 1915, the Legislature enacted the first legislation authorizing city planning commissions (Stats. 1915, ch. 428, § 1, p. 708) and amended the subdivision map act to require subdivision maps to be referred to planning commissions before approval where the local jurisdiction had established a commission (Stats. 1915, ch. 756, § 2, p. 1513). In 1917, the Legislature authorized cities to adopt zoning ordinances. (Stats. 1917, ch. 734, p. 1419.) Ten years later, the Legislature adopted the first modem planning law, which expressly

authorized planning commissions to regulate subdivisions. (Stats. 1927, ch. 874, § 15, p. 1905.) In 1929, the planning law was updated (Stats. 1929, ch. 838, p. 1805) and the Legislature adopted the first modem subdivision law (Stats. 1929, ch. 837, pp. 1790-1791). The subdivision law was further updated in 1937, 1943 and thereafter. (See, e.g., Stats. 1937, ch. 670, p. 1863; Stats. 1943, ch. 128, p. 865.)

The current version of the law is the Subdivision Map Act, section 66410 et seq. (the Act). Under the Act, subdivisions ordinarily “may be lawfully accomplished only by obtaining local approval and recordation of a tentative and final map pursuant to section 66426, when five or more parcels are involved, or a parcel map pursuant to section 66428 when four or fewer parcels are involved. [Citation.] A local agency will approve a tentative and final map or a parcel map only after extensive review of the proposed subdivision and consideration of such matters as the property’s suitability for development, the adequacy of roads, sewer, drainage, and other services, the preservation of agricultural lands and sensitive natural resources, and dedication issues. (See, e.g., §§ 66451-66451.7, 66452-66452.13, 66453-66472.1, 66473-66474.10, 66475-66478.)” (Gardner v. County of Sonoma (2003) 29 Cal.4th 990 , 997 [ 129 Cal.Rptr.2d 869 , 62 P.3d 103 ] (Gardner).) The Act prohibits the sale, lease, financing or improvement of any parcel or parcels of real property for which a final map or parcel map is required under the Act unless a final map or parcel map has been recorded. (§ 66499.30, subds. (a)-(c).)

Since 1907, each subdivision map act adopted by the Legislature has included a grandfather provision that exempts maps from current legal requirements if they were filed or recorded before the effective date of the current law and if they complied with the laws in effect at the time they were filed or recorded. (See Stats. 1907, ch. 231, § 8, p. 292; Stats. 1913, ch. 306, § 6, pp. 570-571; Stats. 1915, ch. 756, p. 1512 [amending existing law with no change to grandfather provision]; Stats. 1919, ch. 349, p. 725 [same]; Stats. 1921, ch. 592, p. 1002 [same]; Stats. 1929, ch. 837, § 1, p. 1791.) In 1937, the language of the grandfather provision was modified (Stats. 1937, ch. 670, § 4, p. 1865), and in 1943 it was substantially rewritten to match the language of the current grandfather provision (Stats. 1943, ch. 128, § 1, pp. 865, 868 [adding Bus. & Prof. Code, former § 11538, subd. (b)]; § 66499.30, subd. (d)).

The central question before us is whether the 1909 Pierce Map is covered by the current grandfather provision, which provides that the prohibitions on selling, leasing, or financing parcels on maps that do not comply with the Act do not apply to “any parcel or parcels of a subdivision offered for sale or lease, contracted for sale or lease, or sold or leased in compliance with or

exempt from any law (including a local ordinance), regulating the design and improvement of subdivisions in effect at the time the subdivision was established.” (§ 66499.30, subd. (d), italics added; see Gardner, supra, 29 Cal.4th at p. 998.)

Gardner, the leading case interpreting the current grandfather provision, stands for the proposition that maps recorded before the effective date of the first statewide map legislation (which was enacted in 1893), and that were not subject to other local statutes or regulations governing the subdivision of property at the time they were recorded, are not entitled to the protection of the grandfather provision. (Gardner, supra, 29 Cal.4th at pp. 1001, 1002-1003.) Specifically, the court held that the recording of a map before 1893 did not “establish” the subdivision depicted on the map within the meaning of the grandfather provision. (Id. at pp. 1000-1001 [discussing § 66499.30, subd. (d); § 66412.7]; see also Gardner, at pp. 1003-1004 [recordation before 1893 also did not “create” subdivision within meaning of § 66451.10, subd. (a)]; Gardner, at p. 1006.) Gardner left open the question of whether maps recorded under statewide subdivision map laws in effect between 1893 and 1929 legally created or “established” subdivision parcels when recorded and thus were covered by the grandfather provision. (Gardner, at p. 1001, fn. 7.)

On July 29, 2008, after the trial court issued its decision in this case, another division of our court ruled that maps filed in compliance with subdivision map laws in effect in 1915 are not covered by the grandfather provision, an issue that was not resolved in Gardner, supra, 29 Cal.4th 990 . (Witt Home Ranch, Inc. v. County of Sonoma (2008) 165 Cal.App.4th 543 , 548 [ 81 Cal.Rptr.3d 123 ] (Witt).) Rather than determine whether the parcels were “established” within the meaning of the grandfather provision, the Witt court examined whether the statewide subdivision map law in effect in 1915 was a law “regulating the design and improvement of subdivisions” within the meaning of the grandfather provision. (See id. at pp. 554, 564.)

Witt reviewed the substantive controls over subdivisions that were in place by 1915: “The most substantial early changes were made in 1913. In these amendments, the Legislature required every subdivision map to be submitted to the local governing body, not merely for the acceptance of dedicated property, but ‘for the approval of such governing body.’ (Stats. 1913, ch. 306, § 4, p. 570.) In addition, the 1913 legislation granted the governing body some, if very limited, control over the subdivision design reflected in the map: ‘Such governing body may require the public highways, if any, offered for dedication by said map or plat and the parcel or parcels of land, if any, therein reserved or indicated for highway or right of way purposes, and not offered for dedication to public use, to be as wide as and to conform, as near

as practicable, to the adjoining, surrounding or neighboring streets or highways of said city, city and county, or county.’ (Ibid.) ... [*][].. . Under the 1915 amendments, if the local jurisdiction contained one of the newly created planning commissions, the governing body was required, prior to approval of the map, to refer it to the planning commission for a report. (Stats. 1915, ch. 756, § 2, p. 1513.)” (Witt, supra, 165 Cal.App.4th at pp. 560-561.)

The Witt court then considered whether the law in effect in 1915 was a law “regulating the design and improvement of subdivisions” pursuant to the current grandfather provision. (Witt, supra, 165 Cal.App.4th at p. 561.) The court observed that “design” is specifically defined in the Act to mean “(1) street alignments, grades and widths; (2) drainage and sanitary facilities and utilities, including alignments and grades thereof; (3) location and size of all required easements and rights-of-way; (4) fire roads and firebreaks; (5) lot size and configuration; (6) traffic access; (7) grading; (8) land to be dedicated for park or recreational purposes; and (9) other specific physical requirements in the plan and configuration of the entire subdivision that are necessary to ensure consistency with, or implementation of, the general plan or any applicable specific plan as required pursuant to Section 66473.5.” (§ 66418; see Witt, at p. 559.) The Act defines “improvement” to mean “(a) . . . any street work and utilities to be installed, or agreed to be installed, by the subdivider on the land to be used for public or private streets, highways, ways, and easements, as are necessary for the general use of the lot owners in the subdivision and local neighborhood traffic and drainage needs as a condition precedent to the approval and acceptance of the final map thereof[;] [][] [and] (b) . . . any other specific improvements or types of improvements, the installation of which, either by the subdivider, by public agencies, by private utilities, by any other entity approved by the local agency, or by a combination thereof, is necessary to ensure consistency with, or implementation of, the general plan or any applicable specific plan.” (§ 66419; see Witt, at p. 559.)

The laws in effect in 1915 contained none of the foregoing language. They regulated the map rather than the subdivision, with the sole exception that they authorized local governments “to require the subdivider to make all public and private roads ‘as wide as and to conform, as near as practicable, to the adjoining’ streets (Stats. 1913, ch. 306, § 4, p. 570) .... (Stats. 1915, ch. 756, § 2, p. 1513.)” (Witt, supra, 165 Cal.App.4th at p. 562.) The court concluded these laws did not purport to regulate the “improvement” of the subdivision and thus they did not regulate the “design and improvement” of subdivisions within the meaning of the grandfather clause, (ibid) Nor did such laws regulate the “design” of subdivisions since they “omitted any regulation of the primary characteristic of a subdivision—the division of a large parcel into smaller usable lots.” (Ibid.) The 25-acre lot map at issue in Witt, for example, was “a planning anachronism, merely a grid laid across a

Abernathy argues that, beginning in 1907, the Legislature has demonstrated a consistent intent to “grandfather earlier-created lots or parcels provided they were created in compliance with the law in effect at the time” without qualification and that the current grandfather clause should be construed that broadly. However, as we have already observed, the grandfather provision was substantially rewritten in 1943 to include the language of the current grandfather provision. (See also Witt, supra, 165 Cal.App.4th at pp. 556-557.) Witt rejected the argument that the modem grandfather language “was intended merely to codify the all-encompassing language that had been a feature of the subdivision map statutes since 1907, without changing its broad scope,” which is essentially Abernathy’s argument in this appeal. (Witt, supra, 165 Cal.App.4th at p. 557.) We agree with Witt that “the plain language of the [modem] grandfather clause cannot reasonably be constmed as effecting no substantive change . . . .” (Ibid.) “The 1937 statute protected virtually every subdivision map that had been recorded before its enactment. In particular, it expressly recognized every map ‘recorded or filed prior to August 14, 1929.’ (Stats. 1937, ch. 670, § 4, p. 1865.) Such language would protect not only [a map recorded in 1915], but also the map from Gardner[, supra, 29 Cal.4th 990 ], filed in 1865, and every other map recorded in California’s early history. Yet there is no debate that, at least prior to 1893, California had no legislation ‘regulating the design and improvement of subdivisions,’ as required by the 1943 language. Indeed, prior to 1893, California had no legislation regulating subdivisions or subdivision maps at all. As our Supreme Court held in Gardner, the language of the 1943 grandfather clause therefore excludes maps filed or recorded, at a minimum, prior to 1893. Necessarily, the 1943 language represented a narrowing of the prior grandfather clause, rather than a mere rephrasing having the same substance.” (Witt, at pp. 557-558, fn. omitted.)

Abernathy also maintains that the grandfather provision must be harmonized with two other sections of the Act, which it claims establish the validity of the Pierce Map. Section 66468 reads, “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 thereof.” Section 66499.35, subdivision (d) provides, “A recorded final map, parcel map, official map, or an approved certificate of exception shall constitute a certificate of compliance with respect to the parcels of real property described therein.” Although Abernathy acknowledges that the Pierce Map is not a “final map,” or “parcel map” as those terms are defined in the Act (see §§ 66433-66443, 66444-66450, 66451-66451.7, 66456-66462.5), it nevertheless argues that reliance on the current definitions “elevates form over substance” and that “the early provisions of the law requiring the filing of subdivision maps should be given effect, even though they do not bear the label ‘final’ or ‘parcel’ . . . .” Abernathy does not and

Applying principles similar to those set forth in In re Marriage of Bouquet, supra, 16 Cal.3d at page 592, Witt concluded that applying current law to property that was depicted on a map recorded in 1915 “works no unfairness on die [property owners]. As noted in Hays v. Vanek (1989) 217 Cal.App.3d 271 at pages 289-290 [ 266 Cal.Rptr. 856 ], ‘[t]he clear purpose of the so-called “grandfather” clause is to protect developers who have detrimentally relied on an earlier state of the law. That purpose is hardly served by allowing later purchasers of property which has never been sold in subdivided form to take advantage of an exemption. In such cases, the later purchaser placed no reliance on the prior state of the law. On the other hand, the salutary purposes served by the Subdivision Map Act would be frustrated if a simple staking out and selling of a handful of parcels in the late 1920’s could exempt all land in the subdivision 60 years and several owners later from any subdivision regulatory requirements.’ ” (Witt, supra, 165 Cal.App.4th at pp. 563-564.) Given the importance of the Act’s objectives as described in Gardner and minimal reliance placed upon the 1909 Pierce Map by Abernathy, we conclude no due process violation exists. (See also Gardner, supra, 29 Cal.4th at pp. 1005-1006.)

A

bernathy also claims the County had only two alternatives when presented with its application for a certificate of compliance pursuant to section 66499.35, subdivision (d): either grant an unconditional certificate of compliance or grant a conditional certificate of compliance. According to Abernathy, denying its application was not permitted by the statute. The County argues for a construction of the statute that would permit a local agency to deny an application for only a portion of the applicant’s property if the issuance of the certificate of compliance would effectively subdivide the property.

“ ‘[0]ur task in interpreting . . . statutes is “to ascertain and effectuate legislative intent.” [Citation.]’ [Citation.] . . . ‘ . [W]e turn to the words themselves, giving them their “usual and ordinary meanings” and construing them in context [citation].’ [Citation.] . . .” ’ ” (Witt, supra, 165 Cal.App.4th at p. 555.) “ ‘To the extent this examination of the statutory language leaves uncertainty, . . . our task is to select the construction that comports most closely with the Legislature’s apparent intent, with a view to promoting rather than defeating the statutes’ general purpose, and to avoid a construction that would lead to unreasonable, impractical, or arbitrary results. [Citations.]’ [Citation.]” (Id. at pp. 555-556.)

Abernathy’s argument relies on the plain language of the statute: “(a) Any person owning real property or a vendee of that person pursuant to a contract of sale of the real property may request, and a local agency shall

determine, whether the real property complies with the provisions of this division and of local ordinances enacted pursuant to this division. If a local agency determines that the real property complies, 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 of the real property complies with applicable provisions of this division and of local ordinances enacted pursuant to this division. The local agency may impose a reasonable fee to cover the cost of issuing and recording the certificate of compliance, [f] (b) If a local agency determines that the real property does not comply with the provisions of this division or of local ordinances enacted pursuant to this division, it shall issue a conditional certificate of compliance. A local agency may, as a condition to granting a conditional certificate of compliance, impose any conditions that would have been applicable to the division of the property at the time the applicant acquired his or her interest therein . . . .” (§ 64499.35, subds. (a), (b), italics added.) “Shall” is ordinarily construed as mandatory (Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432 , 443 [ 261 Cal.Rptr. 574 , 777 P.2d 610 ]), and the statute appears to give the local agency only two options: issue an unconditional certificate if the property complies or a conditional certificate if it does not. (See Hunt v. County of Shasta (1990) 225 Cal.App.3d 432 , 438, fn. 3 [ 275 Cal.Rptr. 113 ] [in dicta, stating an agency “must file either a certificate or a conditional certificate in all cases”].)

On the other hand, the statute includes language that an unconditional certificate of compliance “shall state that the division of the real property complies with applicable provisions of this division and of local ordinances enacted pursuant to this division” (§ 66499.35, subd. (a), italics added), and that a conditional certificate may “impose any conditions that would have been applicable to the division of the property at the time the applicant acquired his or her interest therein . . .” (§ 66499.35, subd. (b), italics added). An alternative interpretation of the italicized language suggests that an application for a certificate of compliance may seek a determination of whether real property may be subdivided as proposed, but not a determination of whether a particular subdivision lot (which the applicant does not propose to subdivide firrther) complies with the Act. If this construction is correct, the statute does not require an agency to grant either an unconditional or conditional certificate for a particular subdivision lot. An application submitted for such a purpose could be rejected or denied.

In light of the ambiguity in the statutory language, we consider which party’s proposed construction of the statute best comports with the purposes and overall scheme of the Act. (See Witt, supra, 165 Cal.App.4th at pp. 555-556.) We conclude the County’s construction meets this test. If an application for a certificate of compliance could be submitted for only one

Disposition

We reverse the judgment of the trial court and direct that the petition for a writ of mandate be denied. The County of Solano is entitled to costs on appeal.

Jones, P. J., and Needham, J., concurred.