Daily Development for Monday, October 22, 2001

By: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

SUBDIVISIONS; LAND USE PLANNING. Antiquated subdivision maps, prepared at a time when no subdivision regulation was in existence, do not create legal parcels if they are not in compliance with state Subdivision Map Act or any of its precursors.

Gardner v. County of Sonoma, Cal.App.4th, Slip. Opin. No. A093139. First Dist., Div. One. Oct. 11, 2001.

In a case of first impression, the California Court of Appeals rules that a map recorded prior to the enactment of the Subdivision Map Act did not create legally recognizable lots. The history of the case begins "soon after Lee's surrender at the Appomattox Court House ended the Civil War." In 1865, a map depicting a vast subdivision of 90 rectangles, or lots, laid over more than a thousand acres of land was recorded with the Sonoma County Recorder.

In 1996, a landowner of approximately 158 acres, being two lots and portions of ten other lots, sought 12 certificates of compliance from the County to establish that 12 legal parcels existed, based on the 1865 map.

The landowner contended that antiquated subdivision maps recorded prior to 1893, when no law regulating subdivisions was in existence, can nevertheless create legal parcels if they are sufficiently accurate, detailed, and informative. The county and planning authorities disagreed and argued that "legal recognition of such maps would wreak havoc with modern land use planning."

The Court's analysis begins:"Like many explorers of a new world, we set forth with a sextant and a map that, while incomplete, contains many reference points to guide us." Focusing first on the legislative history and intent of the Subdivision Map Act, the Court states that its purposes "...are to encourage and facilitate orderly community development, coordinate planning with the community pattern established by local authorities, and assure proper improvements are made, so that the area does not become an undue burden on the taxpayer." citing, inter alia, Gomes v. County of Mendocino 37 Cal.App.4th 977, 985 (Cal. App. 1995) .

The Court reviewed and distinguished various California cases offered by the landowner to show exemption from the Map Act. The analysis of the cases involves whether a map recorded when there were no governing statutes could be "exempt," "in compliance with" or "not subject to" applicable law. Ultimately, the Court relied upon legislative intent and concludes that nothing in the Act exempts such "antiquated" subdivision maps and that had the Legislature intended to grandfather antiquated subdivision maps, it could have done so.

In so holding, the Court states "[g]iven the manifest purposes and language of the applicable statutes in the Map Act, we conclude that the Legislature did not intend that antiquated subdivision maps created legal parcels in the twenty-first century. Such maps recorded prior to the existence of the first Map Act in 1893 do not in themselves create parcels that are automatically subdividable."

Comment: The editor can hear the clarion call already - "taking??!!!"

Don't think so. There is still value even in the subject property. It just has to be divided in other ways. The property had not yet been sold as separate lots, and consequently the government had the authority to regulate the sale of portions of this property to the same extent that it regulated sale of portions of any other landowner's property.

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 1‑6, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Maria Tabor at the ABA. (312) 988 5590 or mtabor@staff.abanet.org

Items reported here and in the ABA publications are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. The same is true of all commentary provided by contributors to the DIRT list. Accuracy of data and opinions expressed are the sole responsibility of the DIRT editor and are in no sense the publication of the ABA.

Parties posting messages to DIRT are posting to a source that is readily accessible by members of the general public, and should take that fact into account in evaluating confidentiality issues.

ABOUT DIRT:

DIRT is an Internet discussion group for serious real estate professionals. Message volume varies, but commonly runs 5 ‑ 10 messages per workday.

Daily Developments are posted every workday.

To subscribe to Dirt, send an e-mail to:

To:	ListServ@listserv.umkc.edu
Subject:	[Does not matter]
Text in body of message	Subscribe Dirt [your name]

To cancel your subscription to Dirt, send an e-mail to:

To:	ListServ@listserv.umkc.edu
Subject:	[Does not matter]
Text in body of message	Signoff Dirt

For information on other commands, send the message Help to the listserv address.

DIRT has an alternate, more extensive coverage that includes not only commercial and general real estate matters but also focuses specifically upon residential real estate matters. Because real estate brokers generally find this service more valuable, it is named "Brokerdirt." But residential specialist attorneys, title insurers, lenders and others interested in the residential market will want to subscribe to this alternative list. If you subscribe to Brokerdirt, it is not necessary also to subscribe to DIRT, as Brokerdirt carries all DIRT traffic in addition to the residential discussions.

To subscribe to Brokerdirt, send an e-mail to:

To:	ListServ@listserv.umkc.edu
Subject:	[Does not matter]
Text in body of message	Subscribe Brokerdirt [your name]

To cancel your subscription to Brokerdirt, send an e-mail to:

To:	ListServ@listserv.umkc.edu
Subject:	[Does not matter]
Text in body of message	Signoff Brokerdirt

DIRT is a service of the American Bar Association Section on Real Property, Probate & Trust Law and the University of Missouri, Kansas City, School of Law. Daily Developments are copyrighted by Patrick A. Randolph, Jr., Professor of Law, UMKC School of Law, but Professor Randolph grants permission for copying or distribution of Daily Developments for educational purposes, including professional continuing education, provided that no charge is imposed for such distribution and that appropriate credit is given to Professor Randolph, DIRT, and its sponsors.

DIRT has a WebPage at: http://www.umkc.edu/dirt/