Revisiting History Part II: When is a Recorded 1909 Map Not a Subdivision Map?

By William W. Abbott

Adjudicating old subdivision maps is becoming more and more like driving the last nail into a coffin: the patient is dead and we are simply down to the final details.  Blog readers may remember Revisiting History: When is a Recorded 1915 Map Not a Subdivision Map?, which reviewed the holding in Witt Home Ranch, Inc. v. County of Sonoma (2008) 165 Cal.App.4th 543, a case in which the First Appellate District concluded, relying on Gardner v. County of Sonoma (2003) 29 Cal.App.4th 990, that a 1915 subdivision map did not meet the grandfather test for prior subdivisions found in Government Code section 66499.30.

The new decision in Abernathy Valley, Inc. v. County of Solano, also a First Appellate District decision, addresses a similar question involving a map recorded in 1909. In 2002, the plaintiff acquired property (parcels 9-16 and 19-24), shown on a subdivision map recorded in 1909 (a portion of two parcels (20 and 21) had been previously conveyed.) All the parcels were contiguous. The plaintiff sought a certificate of compliance on Lot 12. Staff denied the request and the Planning Commission reversed. On appeal, the Board reversed, denying the certificate.

The trial court ruled that the subdivision map fell within the grandfather provisions of the Subdivision Map Act (“SMA”), and thus the applicant was entitled to a certificate of compliance.  The trial court ruling came before the appellate court decision in Witt Home Ranch, Inc.

On appeal, the appellate court reached a very similar conclusion to that in Witt Home Ranch, that being, in 1907 (map approval) and 1909 (map recording), the SMA did not invest local decision makers with the ability to regulate “design and improvement.” As a consequence, the grandfather provisions of Government Code section 66499.30, added in 1943, did not validate the map, and the units of land shown on the recorded map, were not, on the basis of the map alone, separate legal parcels.[1]

The appellate court then turned to the question of whether or not the County was legally obligated to issue a certificate of compliance or conditional certificate of compliance (Gov. Code, § 66499.35). The appellate court ruled, that in circumstances in which the certificate of compliance would, by itself, serve as the subdividing action (as compared to a certificate following a conveyance of a parcel), the local agency may withhold the certificate, notwithstanding the apparent mandatory nature of the statutory language. As a result, an owner is precluded from using a certificate of compliance to get something (a subdivision or subdivided parcel) which they legally don’t possess. Hand me that nail will you?

William W. Abbott is a partner at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.



[1]   The decision includes a succinct history of the evolution of the Subdivision Map Act.

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