HUMES, P.J. —
Real parties in interest Ronald E. and Shirley Nunn bought a large tract of agricultural property in Contra Costa County. The tract was recorded as a single parcel, but it actually consisted of four separated parts of unequal size. These parts were formed years before the Nunns bought the property when a local agency acquired through eminent domain two narrow strips of land crossing the property and intersecting each other. A road was built on one strip, and a pipeline was buried under the other.
After the Nunns abandoned an effort to subdivide the property under the parcel map provisions of the Subdivision Map Act,
In the mid-1990s, the Contra Costa Water District (District) oversaw the construction of a dam in the eastern part of Contra Costa County. The project required the District to acquire 20,000 acres of property from about 40 county landowners, and it included relocating 13 miles of road and installing 20 miles of water pipeline and 12 miles of gas line. One of the properties affected by the project was a 586-acre tract of land now owned by the Nunns. Roughly rectangular in outline, the property is crossed by two narrow, intersecting strips of land that were acquired by the District through condemnation proceedings in 1997. One, running generally north and south, was acquired to relocate Vasco Road. The other, running east and west, intersects Vasco Road at a right angle and was acquired to accommodate an underground pipeline.
The Nunns purchased the property in 2006. The deed describes it as a single parcel, defined by metes and bounds, with District-owned land excluded.
Before completing the parcel map process, the Nunns abandoned their application. Instead, they asked the county to issue a certificate of compliance for each of the property's four parts under another provision of the Act, section 66499.35, subdivision (a). Under this provision, a property owner need not file an approved map if the responsible agency concludes that "the real property complies with the provisions of [the Act] and of local ordinances enacted pursuant to [the Act]." (Ibid.) The Nunns argued that they were entitled to a certificate for each part because the District's condemnation had the effect of subdividing the property for purposes of the Act.
County planning staff denied the Nunns' request for four certificates of compliance, concluding that the property's separation as a result of the condemnation did not constitute a "subdivision" for purposes of the Act. The Nunns appealed, and the county planning commission reversed the staff's decision. SMD then appealed to the county board of supervisors, which rejected the appeal and issued the four certificates.
SMD filed a petition for writ of mandate against the county and board of supervisors, seeking an order requiring the county to set aside the certificates. The trial court granted the petition. It concluded that no legal authority supported the Nunns' theory that the condemnation effected a subdivision of the property within the meaning of the Act. In granting the petition, the court noted its concern that such an "automatic subdivision" would set a "wide-ranging precedent potentially applicable to many property owners in the area" whose properties had been separated in some manner by a public acquisition of property. The Nunns appealed.
The Nunns first argue, as they argued below, that the county properly issued the four certificates of compliance under section 66499.35, subdivision (a) because the condemnation effected a subdivision of the property as a matter of law. Alternatively, they argue that the county was required to issue four conditional certificates of compliance under subdivision (b), even if the condemnation did not effect a subdivision under the Act.
A local government's decision to grant or deny a certificate of compliance is ordinarily reviewed for substantial evidence. But issues of law, such as those presented here, are reviewed de novo. (Abernathy Valley, Inc. v. County of Solano (2009) 173 Cal.App.4th 42, 46 [92 Cal.Rptr.3d 459] (Abernathy Valley).)
The Act "grants to local governments the power to regulate the manner in which their communities grow. Although the Act itself contains few, if any, substantive growth regulations, it requires every landowner who wishes to divide a single parcel of land into smaller parcels for individual sale — thereby increasing the density of settlement on the land — to obtain the approval of the local government before doing so. [Citations.] At the same time, the Act vests `[r]egulation and control of the design and improvement of subdivisions' in city and county governing bodies, requiring them to adopt ordinances regulating the manner in which growth will occur. [Citation.] By requiring proposed new subdivisions to comply with these regulations as a condition of approval, local governments can ensure that new real estate development conforms with their communities' general and specific plans and other regulations adopted to guide growth. [Citation.] Local governmental control over community growth made possible by the Act `encourage[s] and facilitate[s] orderly community development ... and assure[s] proper improvements are made, so that the area does not become an undue burden on the taxpayer.'" (Witt Home Ranch, Inc. v. County of Sonoma (2008) 165 Cal.App.4th 543, 551 [81 Cal.Rptr.3d 123].) Transferring portions of land without complying with the Act is illegal and subjects the transferor to various penalties. (§§ 66499.30, subds. (a) & (b), 66499.31, 66499.34.)
The Act legitimizes property divisions under processes that are both forward and backward looking. In a process that is forward looking, the Act allows an owner who wants to subdivide property to apply for a final or parcel map effecting the subdivision. Under the Act, "`[s]ubdivision' means
In a different process, one that is backward looking, the Act allows an owner to legitimize a division of property that has already occurred by obtaining a certificate of compliance with the Act. Under this process, an owner or prospective purchaser of property that has already been divided, but for which no final or parcel map has been recorded, may obtain a certificate of compliance if "the division of the real property [creating the piece of property] complies with applicable provisions of [the Act] and of local ordinances enacted pursuant to [the Act]." (§ 66499.35, subd. (a).) Once a certificate of compliance has been issued, the property "may be sold, leased, or financed without further compliance with the ... Act or any local ordinance enacted pursuant thereto." (Id., subd. (f)(1)(E); see Gardner, supra, 29 Cal.4th at p. 998.) In other words, the certificate of compliance clarifies the legal status of property that is not reflected on a recorded final or parcel map, thereby facilitating transactions involving the property.
A certificate of compliance is properly issued under section 66499.35, subdivision (a) when a statutory exemption from the map requirements
In yet another process that is backward looking, the Act allows an owner to legitimize a division of property that has already occurred, but for which no map has been recorded and to which no statutory exemption applies, by obtaining a conditional certificate of compliance. "If a local agency determines that the real property does not comply with [the Act's mapping requirements] or of local ordinances enacted pursuant to this division, it shall issue a conditional certificate of compliance." (§ 66499.35, subd. (b), italics added.) This provision applies, for example, where a part of a larger landholding was conveyed by deed without complying with the Act's map requirements, i.e., was conveyed illegally. (§ 66499.30, subds. (a) & (b).)
The Nunns purchased their property as a single parcel, and it is described as such in the deed and in the assessor's rolls. Since the Nunns abandoned their effort to subdivide the property into four parts through the map process, the only issue before us is whether they are entitled to a regular or conditional certificate of compliance for each of the four parts of their property. We conclude that they are not because there has been no division of their property within the meaning of the Act.
The Nunns' main argument is that the District's condemnation effected a de facto division of the property into four "parcels." Although we fully appreciate that the eminent domain proceeding resulted in the physical separation of the four parts of the Nunns' property, we disagree that this constituted a division within the meaning of the Act.
There is no question that the Nunns' property consists of four parts separated from each other by the strips of land owned by the District. The Nunns cannot pass from one part of their property to another without crossing someone else's property. And, as the Nunns correctly point out, the District's fee-simple ownership of its intersecting strips grants the District the ownership of all rights above and below the strips' surface.
But this practical reality does not mean that there was a division of the property within the meaning of the Act entitling the Nunns to a certificate of compliance for each of its four parts. The Nunns argue that the four parts qualify as separate parcels under the Act because they are separated. But neither the characterization nor the separation of the parts is determinative. Characterizing the parts of their property as parcels is of no legal consequence because no provision of the Act entitles real property to a certificate
Further, a division within the meaning of the Act is not established just because parts of a property do not touch. Section 66424, for example, defines subdivision to mean "the division, by any subdivider, of any unit or units of improved or unimproved land, or any portion thereof, shown on the latest equalized county assessment roll as a unit or as contiguous units, for the purpose of sale, lease, or financing, whether immediate or future." And it goes on to state "[p]roperty shall be considered as contiguous units, even if it is separated by roads, streets, utility easement, or railroad rights-of-way." (Ibid.) This language was applied by the Attorney General in 61 Opinions California Attorney General 299 (1978), in considering the impact of an irrigation canal owned in fee simple by the federal government that divided land under common ownership.
The Nunns also argue that it would be unfair to require them to proceed through the parcel map process because they did not separate the property into its four parts. But under the Act, what matters is not who caused property to be separated but whether a division occurred within the meaning of the Act. We note that the Nunns knowingly purchased the property in its present configuration, the $964,000 paid to the former owner compensated the owner for any loss of value caused by the property's separation, and the Nunns presumably paid a reduced price for the property because of the effects of the condemnation. (See People v. Thompson (1954) 43 Cal.2d 13, 18 [271 P.2d 507] [landowner whose property is divided by highway entitled to receive value of land condemned plus reduction in value of remainder due to severance of portion condemned].) We find nothing unfair in requiring the Nunns to comply with the same procedures for subdivision as other landowners.
The Nunns alternatively claim that they are entitled to certificates of compliance under the Act's exemption for property conveyed through condemnation proceedings. (§ 66428, subd. (a)(2).) This provision exempts from map requirements "[l]and conveyed to or from a governmental agency [or] public entity ... for rights-of-way, unless a showing is made in individual cases, upon substantial evidence, that public policy necessitates a parcel map." The Nunns argue that the four parts of their property fall within this exemption because the condemnation proceeding from which they arose involved the conveyance of land to a governmental agency.
This argument is refuted, however, by the plain language of the statute. Section 66428, subdivision (a)(2) states that "[a] parcel map shall not be required for [¶] ... [¶] ... [l]and conveyed to or from a governmental agency [or] public entity ... for rights-of-way...." (Italics added.) The four parts of the Nunns' property were neither conveyed to nor from a public entity. Rather, they were not conveyed at all and remained in private
Our conclusion that each of the four parts of the Nunns' tract is not entitled to a certificate of compliance under the Act's condemnation exemption is supported not only by the Act's plain language, but also by sound policy. The Act is designed to promote local control over real estate development, and the subdivision of property is a primary means for such development. There is no reason to believe that property reshaped by condemnation proceedings necessarily satisfies state and local land use laws. Property is condemned for all kinds of reasons, many of which are entirely unrelated to the interests protected by the Act. The four parts of the Nunns' property were shaped by the routes chosen for relocating Vasco Road and for laying the pipelines. Although these routes likely made good sense for purposes of the road and pipeline, that does not mean the resulting four parts of the property automatically satisfy the objectives and purposes of the Act.
The Nunns also argue that the condemnation exemption should apply to property reshaped by a condemnation proceeding because the government's cost in those proceedings will be higher when those proceedings result in "illegal" parcels. We accept neither the premise nor conclusion of this argument. First, although property reshaped by condemnation proceedings may have a new boundary, the reshaped property is not illegal. Owners can sell their entire property with its new boundaries, or they can convey any part of it so long as they comply with the Act. (§ 66424.) Second, the government's condemnation costs are unaffected because the government is already required to compensate landowners when it acquires property and leaves a remainder with a diminished value. (See People v. Thompson, supra, 43 Cal.2d at p. 18.)
Finally, the Nunns argue that the condemnation exemption should apply to their parcels because a condemnation transfer is recognized as a "sale" of property, and a subdivision is defined under section 66424 as a division of land for the purposes of sale. (See, e.g., People ex rel. Dept. Pub. Wks. v. County of Santa Clara (1969) 275 Cal.App.2d 372, 376 [79 Cal.Rptr. 787] [recognizing condemnation as sale].) But even if we were to assume that
The Nunns argue that the four parts of their property should be recognized as having been created by conveyance under the Act. Although we recognize that a division of property within the meaning of the Act can occur by conveyance, we disagree that this principle bears on the four parts of the Nunns' property.
As we previously mentioned (fn. 8, ante), while a division of property can occur through a conveyance of a piece of property for which no map has been recorded and to which no statutory exemption applies, such a conveyance is illegal. (§ 66499.30, subds. (a) & (b).) The grantee of such a property has the right to void the conveyance within one year of its discovery (§ 66499.32, subd. (a)), but the local agency has no similar power. (Clemons v. City of Los Angeles, supra, 36 Cal.2d at p. 105; Kalway v. City of Berkeley, supra, 151 Cal.App.4th at p. 836 ["That a transfer is not authorized by the Act, or that it violates the Act, does not in and of itself allow an agency to seek and obtain cancellation of the deed through court action."]; City of Tiburon v. Northwestern Pac. R.R. Co. (1970) 4 Cal.App.3d 160, 180-181 [84 Cal.Rptr. 469].) Rather, the local agency is limited to recording a notice of violation against the illegally conveyed property (§ 66499.36) and preventing further development if it "finds that development of such real property is contrary to the public health or the public safety." (§ 66499.34.) Even though such a conveyance is illegal, it effectively transfers title, and the transfer is binding on the grantee's successors in interest. (§ 66499.32, subd. (a).) Accordingly, as both a practical and legal matter, a conveyance of a part of a property in violation of the Act results in a division under the Act if not voided by the transferee.
None of this helps the Nunns, however, because the four parts of their property were not conveyed illegally. The only parcels conveyed at all as a result of the condemnation proceeding were those taken by the District. The remainder of the property was untouched. It stayed under common ownership
The Nunns acknowledge that no California decision has ever held that parts of a property are entitled to certificates of compliance simply because the parts resulted from a condemnation proceeding, but they argue that opinions issued by attorneys general have recognized the principle. Our review of the opinions reveals that none is on point, and those that provide guidance support the conclusion that there has been no division within the meaning of the Act simply because an eminent domain proceeding has separated parts of the non-condemned property.
In 58 Opinions California Attorney General 593 (1975), the Attorney General considered whether contiguous parcels held by the same landowner could be sold individually without recording a new parcel map after a portion of each parcel had been lost to condemnation. The opinion concluded that they could not. It reasoned that under section 66499.30, it is unlawful to sell any parcel of real property until a parcel or final map has been recorded. According to the opinion, the parcels no longer satisfied section 66499.30 because the remaining parcels were no longer the same as those depicted in the map on file. (58 Ops.Cal.Atty.Gen., supra, at p. 594.) The opinion remarked that a new parcel map was required because "condemnation of a part of a parcel results in a `division' of land." (Ibid.)
But only so much can be read into that comment. First, as we have discussed, a condemnation does result in a division of the part of the property conveyed to the government entity. The Act exempts that division from the map requirement. Second, whether a division within the meaning of the Act occurred with the non-condemned portions of the property was never an issue because the two parcels affected by the condemnation were already recorded as separate, contiguous parcels. Presumably, they had already been subdivided in compliance with the Act's map requirements, and the comment was simply a recognition that an updated parcel map was needed because the condemnation changed the property's boundaries. This, of course, indicates that the Nunns likewise need to obtain a parcel map.
In reaching its conclusion, the opinion expressly rejected an application of section 66424, which defines subdivision, because "no `subdivision' is being proposed by the owner. [Citation.] The `division' in question took place in 1965 when the owner's two new parcels of land were physically created by court order and the recording of a deed." (86 Ops.Cal.Atty.Gen., supra, at p. 73.) In a relevant footnote, the opinion observed that, under the exemption of section 66428, subdivision (a)(2), current law does not require a parcel map for the conveyance of land for purposes of a right-of-way. (86 Ops.Cal.Atty.Gen. at p. 73, fn. 5.) "Of course," the opinion stated, "new parcels that are created [by condemnation] but not conveyed to a governmental agency must comply with any applicable requirements of the Act," citing the 1975 opinion discussed above. (Ibid., italics added.)
The Nunns quote the portion of the opinion declining to apply section 66424 because "no [new] `subdivision' is being proposed by the owner" (86
Finally, the Nunns argue that each of the four parts of their property is entitled, at a minimum, to a conditional certificate of compliance because section 66499.35, subdivision (b) states that the local agency "shall" issue such a certificate whenever a regular certificate of compliance is denied. In doing so, they misconstrue the applicability of this section.
Subdivision (b) of section 66499.35 states that, "[i]f 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." (Italics added.) In that event, the 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." (Ibid., italics added.) The conditional certificate of compliance thereby serves as notice "that the fulfillment and implementation of these conditions shall be required prior to subsequent issuance of a permit or other grant of approval for development of the property." (Ibid.)
This subdivision works in tandem with subdivision (a). As we have explained, subdivision (a) allows an owner to obtain a certificate of compliance for a piece of property that has already been divided, but for which no final or parcel map has been recorded, by establishing that the property complies with the Act by, for example, falling within an exemption to the map requirement. Subdivision (b), in turn, allows an owner to obtain a conditional certificate of compliance for a piece of property that has already been divided, but for which no map has been recorded and that does not comply with the Act. But these sections apply only where there has been a division of the property. As we have discussed, no such division occurred as a result of the eminent domain proceeding affecting the Nunns' property,
Giving meaning to section 66499.35's use of the word "division" is consistent with the section's legislative history. The section's statutory predecessor was enacted in response to Keizer v. Adams (1970) 2 Cal.3d 976 [88 Cal.Rptr. 183, 471 P.2d 983], in which the Supreme Court considered the consequences of a conveyance of property in violation of the Act's map requirement. (See Nishiyama v. Safeco Title Ins. Co. (1978) 85 Cal.App.3d. Supp. 1, 6 [149 Cal.Rptr. 355].) The Keizer court required the local agency to consider the plaintiffs' application for a building permit "`without regard' to the Subdivision Map Act" because, according to the court, the Act "does not require the innocent purchaser to suffer for a violation by his grantor, of which he has neither knowledge nor means of discovery." (Keizer, at pp. 981, 980.) The court did, however, permit the enforcement of other local ordinances, as would apply to any lawfully created parcel. (Keizer, at pp. 980-981.) Two years later, the Legislature enacted Business and Professions Code former sections 11538.1, 11538.2, and 11538.3, the statutory predecessors to Government Code sections 66499.34, 66499.35, and 66499.36. (1972 Stats, ch. 706, §§ 2-4, pp. 1289-1290.) Former section 11583.3 allowed an owner of real property to request the issuance of a certificate of compliance certifying that the property complied with the Act. If the local agency concluded that the property did not comply, the agency was permitted to attach conditions to the certificate that would have been applicable at the time the owner acquired the property. (Bus. & Prof. Code, former §§ 11538.1, 11538.3.) The present statute continues to embody Keizer's pragmatic concern about legitimizing parcels, including those conveyed illegally but held by good-faith purchasers. A piece of property created through a means consistent with the Act is issued an ordinary certificate of compliance, while one that was created illegally is issued a conditional certificate. (§ 66499.35, subd. (f)(1)(E).) A purchaser of property subject to a conditional certificate of compliance is alerted to any legal constraints on the use of the property.
Division Five of this court has already considered and rejected the argument that a conditional certificate of compliance must be issued for a piece of property simply because a regular certificate of compliance was requested and denied. (Abernathy Valley, supra, 173 Cal.App.4th 42.) In Abernathy Valley, a local agency denied the plaintiff's request for a certificate of compliance under a grandfather clause for a lot shown on a 1909 subdivision map. (Id. at pp. 45-46.) After the court found that the grandfather
The court rejected the argument. It held that the Act does not require an agency to grant either a regular or conditional certificate of compliance when a property owner seeks "a determination of whether real property may be subdivided as proposed" but does not seek "a determination of whether a particular subdivision lot (which the applicant does not propose to subdivide further) complies with the Act." (Abernathy Valley, supra, 173 Cal.App.4th at p. 57.) We agree. Stated in our parlance, a certificate of compliance — whether regular or conditional — is only proper to legitimize a division of property that has already occurred within the meaning of the Act.
The Abernathy Valley court reasoned that if a conditional certificate of compliance were required whenever property owners were denied their desire to subdivide property, the result would be to "effectively permit the subdivision of property without compliance" with the Act's map requirements. (Abernathy Valley, supra, 173 Cal.App.4th at p. 58; see § 66499.35, subds. (b), (f)(1)(E).) The court accordingly concluded that "a local agency may deny an application for a certificate of compliance that seeks a determination that a particular subdivision lot on the applicant's property complies with the Act, where the effect of issuing a certificate would be to effectively subdivide the property without complying with the Act." (Abernathy Valley, at p. 58.) We agree with Abernathy Valley's reasoning and conclusion.
We thus conclude that regular and conditional certificates of compliance are limited to legitimizing divisions of property that have already occurred, such as divisions covered by the Act's grandfather clauses or divisions resulting from a property's illegal conveyance.
The trial court's order granting the petition is affirmed. The trial court is directed, on remand, to enter an appropriate judgment, if no such judgment has yet been entered. SMD may recover its costs on appeal. (Cal. Rules of Court, rule 8.278, (a)(1), (2).)
Dondero, J., and Banke, J., concurred.
