In a landmark ruling, the state Supreme Court has made clear that maps recorded prior to 1893 do not create legal, developable lots for today's purposes. And the court at least hinted that maps recorded between 1893 and 1929 might not be valid unless a city or county somehow exercised discretion in approving the map.

The decision was a major victory for planners and government regulators, who have contended for years that "paper lots" should not be recognized because they were recorded with few or no standards for development, or for the provision of roads and utilities. On the losing end of Gardner v. County of Sonoma were property owners and real estate speculators. During the last few decades, they have sought certificates of compliance based on old maps so that they could build in areas where current regulations tightly control or even prohibit development. (For details of the case, see Legal Digest.)

"It [the ruling] has answered the question resoundingly in favor of the counties and in favor of the orderly development of the state," said Alan Seltzer, Santa Barbara County assistant county counsel and an authority on antiquated subdivisions.

Pacific Legal Foundation attorney James Burling, who helped argue the property owner's case at the state Supreme Court, called the ruling a "clear loss" for people who own property with a map recorded prior to 1893, when the first precursor to the Subdivision Map Act was passed. According to the court's ruling, what landowners believed were separate parcels, are not, he said.

"It's going to make development of these properties more difficult," Burling predicted.


Widespread impact

Nobody knows for sure how many paper lots exist. The estimate most often cited was prepared during the early 1980s for the state Senate and the Coastal Conservancy. That study identified more than 1 million lots — including 70,000 in San Luis Obispo County alone. However, the survey included lots in subdivisions that had been only partially built and for subdivisions approved as recently as the 1950s if there were few or no provisions for infrastructure, recalled Madelyn Glickfeld, the study's author and now an assistant secretary of the state Resources Agency. Most of the parcels identified were created during the 20th century, she said.

Daniel Curtin Jr., author of Curtin's California Land Use and Planning Law, said, "There are hundreds of thousands of these lots out there, and more of them are being discovered in ‘areas that need to be developed.'"

Curtin, who helped argue the government's case at the state Supreme Court, said that planners often believe the issue is not a problem in their jurisdiction — until a landowner shows up at the counter one day with a crinkled map.

"These lots exist in almost every corner of the state," said Peter Detwiler, a consultant to the Senate Local Government Committee. "They are a nightmare to planners. But another way to look at it is that equity is locked up because common sense tells you that the lots are too small to ever use."

In fact, many of the paper lots are only 25-feet-square, or 25-feet-by-50-feet, and they are arranged in a grid without any place for roads. Speculators have used a "land use alchemy" that involves combining the paper lots and moving lot lines around to fashion parcels that are saleable today, Detwiler said. Two years ago, lawmakers approved SB 497 (Sher) to halt the practice of "serial lot line adjustments," which landowners used to create buildable lots or to move lots to more desirable locations within a larger holding.

Developers had argued that as long as the number of lots did not change, they could move the lines wherever they wanted. The high-profile example when SB 497 was being considered in 2001 was at the Hearst Ranch in San Luis Obispo County. The landowner had discovered a 19th century map with about 200 lots in the backcountry of the 80,000-acre ranch. Hearst indicated it would seek certificates of compliance for the parcels, and then use the lot line adjustment process to move the parcels to the coast.

Environmentalists contend this approach can harm rural and environmental integrity. Portions of Santa Barbara County's Gaviota Coast and Santa Ynez Valley are blanketed by old maps, said Linda Krop, executive director of the Environmental Defense Center, which advocates in San Luis Obispo, Santa Barbara and Ventura counties.

"In all three of our counties, landowners have been searching for old maps and surveys and whatever documents they can find that show parcels, even if the parcels don't comply with local zoning," said Krop, who was pleased with the Supreme Court's ruling.

During hearings on SB 497 in 2001, lawmakers heard that some counties, including Sonoma and San Luis Obispo, were seeing as many new lots created through certificates of compliance as through fresh land divisions under the Subdivision Map Act. Many of the maps in question were from the early 20th century. The state Supreme Court did not directly address the validity of those maps. Still, some municipal attorneys contended the court strongly hinted that maps from 1893 to 1929 might not create legal lots. Other attorneys said the court specifically avoided ruling on post-1893 maps.

Those dates are important because 1893 was the year the first precursor to the Subdivision Map Act was adopted. That brief statute, however, simply set cartography standards for the physical making of maps. Not until 1929 did local governments receive specific authority for the substantive review of a subdivision map's design and improvements, Seltzer explained. Thus, lots created prior to 1929 were likely not subject to any local government standards.

The court noted that a "‘final map' or a ‘parcel map' … are statutorily defined to include only those maps that have been reviewed and approved for recordation by a local agency under the provisions of the Map Act or a local ordinance adopted thereunder." Seltzer contends that local agency review and approval could not have occurred prior to adoption of the revised Subdivision Map Act in 1929.

"The way the court wrote its opinion, it is the design and improvement of subdivisions that is critical," Seltzer said. "If old maps were recognized, the whole state could be subdivided into these grids that no one knew existed." In essence, all land use planning and infrastructure planning would go out the window, he said.

The court ruling, written by Justice Marvin Baxter, almost reads like a county's brief: "[I]f we were to adopt plaintiff's position and hold that local agencies must issue a certificate of compliance for any parcel depicted on an accurate, antiquated subdivision map, we would, in effect, be permitting the sale, lease and financing of parcels: (1) without regard to regulations that would otherwise require consistency with applicable general and specific plans and require consideration of potential environmental and public health consequences; (2) without consideration of dedications and impact mitigation fees that would otherwise be authorized by the Act; and (3) without affording notice and an opportunity to be heard to interested persons and landowners likely to suffer substantial deprivation of their property rights."

Jonathan Wittwer, counsel for the Granada Sanitary District in San Mateo County and a longtime municipal law attorney, said the Supreme Court's analysis supports making 1929 — and not 1893 — the cutoff date.

"As I read the case, if the local government did not have the authority to deny or conditionally approve a subdivision map, then why should they have to recognize the map today?" Wittwer said. "It wasn't until 1929 that local governments got this authority."

However, the PLF's Burling said the government attorneys are reading too much into the opinion — although all attorneys agreed the subject is likely to be litigated soon. Burling contended that the other side's interpretation is unfair to landowners who, at the time they recorded maps, did everything according to the law in place at the time. Plus, the grandfather clause in the 1929 version of the Map Act "clearly did not abrogate" previously recorded maps, he said.

These landowners obviously thought they were creating subdivisions, Burling said. "Were they going out and hiring surveyors and recording these maps just for the hell of it?" he asked rhetorically.


Local solutions

Stanislaus County probably has addressed antiquated subdivisions as a planning issue more directly than any other jurisdiction in the state. Two years ago, the county adopted an ordinance requiring a use permit for the development of any lot created prior to 1972, when the Subdivision Map Act was last overhauled. What county planners had learned, after an exhaustive search of assessor's records, was that about 3,000 old lots existed in "inappropriate areas," county Planning Director Ron Freitas said.

"The real issue we have is with a concentration of dwellings in any agricultural area," Freitas said. One map, for example, created 100 one-acre parcels in an agricultural zone without sewers, public water service or paved roads.

The county does not dispute the legality of the parcels, Freitas said. Instead, the process allows the county to decide what can be built on the parcels. When reviewing applications to build houses on these lots, the county considers the availability of infrastructure and the impact of development on surrounding uses. So far, the process has worked well, he said.

In coastal San Mateo County, maps from the early part of the 20th century have been relied upon for years for development, Planning Administrator Terry Burnes said. The county generally has treated the lots as legal and has allowed construction so long as it meets modern development standards, he said. That might mean a landowner must combine several 25-by-25 parcels. San Mateo County's local coastal plan draws a line around territory where these maps exist and generally prohibits development outside that line, he said.

"I think the term ‘antiquated subdivision' may get used too broadly," Burnes said. "I make a distinction between an old subdivision that has been the framework for development, and a subdivision map that sits out in the middle of nowhere and hardly anyone knows about and has never been relied upon for any reason."

Wittwer's client, the Granada Sanitary District, provides sewer service to these areas covered by the old San Mateo County maps. The agency requires a variance before it will extend service to a nonconforming lot, he said.


Peter Detwiler, Senate Local Government Committee: (916) 445-9748.
Daniel Curtin, Jr., McCutchen, Doyle, Brown & Enersen, (925) 937-8000.
Alan Seltzer, Santa Barbara County Counsel's office, (805) 568-2950.
Jonathan Wittwer, Granada Sanitary District, (831) 429-4055.
James Burling, Pacific Legal Foundation, (916) 362-2833.
Terry Burnes, San Mateo County Planning and Building Division, (650) 363-1861.
Ron Freitas, Stanislaus County Planning Department, (209) 525-6330.
Linda Krop, Environmental Defense Center, (805) 963-1622.