Since 1907, the Subdivision Map Act has “grandfathered” older subdivisions and the parcels they created if they were properly recorded under any law (including a local ordinance), regulating the design and improvement of subdivisions in effect at the time the map was recorded. Over the years numerous cases have addressed these so-called “antiquated” subdivisions when landowners have sought affirmatively either to confirm the status of parcels or to obtain relief for land subdivided under older maps that predate the current version of the Map Act.
In Save Laurel Way v. City of Redwood City, __ Cal.App.5th __ (Aug. 29, 2017), the First District Court of Appeal addressed a challenge to the first phase of a two-phase development project on parcels created in a 1926 subdivision when the project area was in the jurisdiction of the County of San Mateo. In the first phase, the City approved a development permit to construct elements such as a cul-de-sac for a fire truck turnaround, a fire hydrant, new streetlights, pedestrian pathways, an open space land dedication, and other civic improvements. The second phase would involve additional permits and conditions for construction of residences on each lot.
The trial court set aside the development permit and determined the City abused its discretion in failing to evaluate the legal status of parcels. Focusing narrowly on one of the Map Act’s grandfathering provisions—Government Code section 66499.30(d)—the court reasoned that it was highly unlikely the map was in compliance with or exempt from any law regulating design and improvement of subdivisions because the County did not have any such laws in 1926.
The Court of Appeal agreed that the trial court’s reasoning was consistent with the prior cases addressing grandfathering, but it rejected the court’s conclusion as flawed. Instead, the Court reasoned that the Map Act’s prohibitions—set forth in other provisions of section 66499.30—do not prohibit construction of the types of improvements allowed in the development permit. In particular, sections 66499.30(a) and (b) state that “[n]o person shall sell, lease, or finance any parcel or parcels of real property or commence construction of any building for sale, lease or financing thereon” without compliance with, or exemption from, the Map Act.
Thus, because the development permit did not allow construction of any buildings on any of the subject parcels—which will require issuance of permits during the second phase of the project, which at that time may implicate the Map Act—the Court held that the Map Act did not apply to the development permit. As a result, litigation challenging the permit’s issuance based on alleged Map Act violations was not ripe.
While the holding in Save Laurel Way is a narrow case of first impression grounded firmly on the ripeness doctrine, it highlights a fundamental point Curtin and Merritt identified many years ago in their treatise California Subdivision Map Act and the Development Process: the Map Act’s prohibitions apply only to a relatively limited range of activities, including selling, leasing, or financing any parcel and commencing construction of any building on any parcel for which a final map or parcel map is required. A project that does not involve such activities is not covered by the Map Act.