Court Establishes New Test for ‘Paper Subdivisions': Title Must Have Transferred; Map Alone Not Enough to Create Parcel
Parcels delineated in pre-1893 subdivisions do not exist as separate lots unless there has been a transfer of title at some point, the Second District Court of Appeal has ruled.
In addressing the status of antiquated subdivisions, the court ruled squarely in favor of local governments that have fought to prevent legal recognition of "paper subdivisions" created prior to laws regulating the subdivision of land. In answering an unresolved issue of state subdivision law, the court said that the title must have transferred for lots in these paper subdivisions to be recognized today. A map alone is not enough.
"The concept that a subdivision parcel can be created without an actual transfer is entirely a creature of modern land use regulation," Presiding Justice Arthur Gilbert wrote for the unanimous three-judge panel of the Second District, Division Six. "We can only conclude that prior to statutes regulating subdivisions, there was no subdivision prior to the time an actual transfer took place."
Landowners all over the state have continued to file lawsuits regarding lot line adjustments and certificates of compliance related to old maps, said Santa Barbara Chief Deputy County Counsel Alan Seltzer, the winning attorney in this case.
Seltzer said that a contrary would have been devastating because there are at least 10 antiquated maps, including an "official map" of the entire county. "It would have immediately subdivided the rural, agricultural lands into thousands of 40-, 80- and 100-acre lots. It would have subdivided the whole county," Seltzer said.
But John Dorwin, the landowner's attorney, said the appellate court misread the facts and the law.
"It [the ruling] raises more questions that it disposes of. It purports to raise this transfer test that is nowhere in the Government Code or the Subdivision Map Act," Dorwin said. The court has clouded title to lots in all but the most recent subdivisions, he said.
Circle K Ranch Corp. owns property in Santa Barbara County's Santa Ynez Valley. The property is within Rancho Canada de Los Pinos, for which a privately prepared map was recorded in 1888. "The portion of Circle K's property for which it seeks a certificate of compliance is delineated by laying the metes and bounds descriptions from Circle K's deed over the government survey drawn on the 1888 map," the court described. "Circle K seeks to use a township line designated on the map as a boundary to separate a portion of its parcel lying north of the line from the larger portion of its parcel lying south of the line. … The result is a 36-acre parcel roughly shaped like a triangle." There also were "official maps" adopted by the county in 1889 and 1909 "for the use of the Assessor's office."
Circle K sought a certificate of compliance for the 36-acre parcel, which the Board of Supervisors denied. The board said that the survey line defining the proposed parcel's southern boundary was never a boundary of any parcel, and that the proposed lot had never been conveyed separately.
Circle K sued but lost at the trial court. On appeal, Circle K argued that the case gave the court the opportunity to answer an unresolved question — namely, what is the status of subdivisions created on paper prior to the 1893 predecessor to the Subdivision Map Act, but never sold or leased as separate lots? The state Supreme Court skirted that question when it decided Morehart v. County of Santa Barbara, (1994) 7 Ca.4th 725. In that case, the court said the county could not force a landowner — who wanted to build a house on a small lot created in 1888 — to merge a collection of 1888 lots to create a 100-acre parcel that would meet current zoning.
In answering Morehart's unresolved question, the court said that a transfer must have taken place for these 19th century lots to be valid today. The court further held that the Subdivision Map Act's grandfathering provisions "have no bearing on maps filed prior to the Act." And the court ruled that an "official map" adopted by the county for assessment purposes is inadequate for a certificate of compliance.
In Circle K's case, the landowner sought to use a U.S. survey line as a boundary, "but United States government survey lines do not by themselves subdivide property. (John Taft Corp. v. Advisory Agency (1984) 161 Cal.App.3d 749, 757.) Circle K is simply seeking to create a parcel where none had existed before," Gilbert wrote.
Circle K attorney Dorwin said the court got the facts wrong. He said the landowner did not rely on a government survey line, but instead pointed to a subdivision map signed by a private land surveyor and recorded at the county in 1888. Dorwin also said the 1909 map drawn up for assessment purposes was recorded the following year. Plus, a 1964 deed describes portions of the subdivision, he said.
Furthermore, the court did not explain why curative statutes passed at various times by the Legislature since 1915 do not apply.
"These maps are all good. We don't think there's a county that has a recorded official map that can defend against certificates of compliance," Dorwin said.
But Seltzer said the maps in question here say that they are for taxes and revenue purposes only. The court made clear that what was called an "official map" in 1909 was not a map for subdivision purposes.
Local governments do not want to recognize antiquated subdivisions because the lots would be created without regard to environmental review, zoning ordinances, general plans or fees. Seltzer said. The California State Association of Counties, the League of California Cities and the California Coastal Commission filed amicus briefs on Santa Barbara County's side. An estimated 100,000 to 400,000 lots, some as small at 2,000 square feet and miles from a road, exist in antiquated subdivisions across California.
Dorwin said he would ask the state Supreme Court to review the case. He also said he might file suit in federal court. The Second District raised a federal question when it discussed a nonexistent U.S. land survey. There are also equal protection issues, and the landowner is a Delaware corporation he said.
Circle K Ranch Corp. v. Board of Supervisors of the County of Santa Barbara, No. B124996, 00 C.D.O.S. 2276, 2000 Daily Journal D.A.R. 3063, filed March 21, 2000.
For Circle K: John Dorwin, (805) 688-8377.
For Santa Barbara County: Alan Seltzer, chief deputy county counsel, (805) 568-2950.