By William W. Abbott and Janell M. Bogue
Practitioners need to immediately review public notification status on all pending Subdivision Map Act applications. AB 2867 (Chapter 363, Statutes of 2006), which was effective on January 1, 2007, amends the notice requirements of the Planning and Zoning law.
Government Code section 65091 now reads:
(a)(2) When the Subdivision Map Act (Div. 2 (commencing with Section 66410)) requires notice of a public hearing to be given pursuant to this section, notice shall also be given to any owner of a mineral right pertaining to the subject real property who has recorded a notice of intent to preserve the mineral right pursuant to Section 883.230 of the Civil Code.
The sponsor of the bill, the California Natural Gas Producers Association, proposed the change because there was previously no explicit notice requirement for holders of dormant mineral rights, including the rights to subsurface oil and gas.
Mineral rights are considered dormant if there has been no production within the past twenty years and no property taxes have been paid. For producing wells, the county assessor will assign an assessor’s parcel number (“APN”) and assign an assessed value to the mineral rights. But these dormant rights will not show up on a tax roll and are not easily found since there is no APN. However, the owner of a dormant right can record notice of intent pursuant to Civil Code section 883.230 to preserve that mineral right.
The sponsor of AB 2867 stated that the concerns and interests of these owners were not being heard during the public hearing process for local land use decisions, and thus the resulting maps often did not provide for the exercise of mineral rights. What will cities and counties do when the mineral rights holder stands up and objects to a subdivision map which effectively obliterates the ability to access the reserve? Will this be a basis for a “takings” claim? While this new statute does not trigger a shift in legal status amongst the various affected parties, it will likely trigger more controversy.
Bill Abbott is a partner and Janell Bogue is an associate with Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann 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.