Save Mount Diablo v. Contra Costa County (October 7, 2015)

Why It Matters: This case is the latest in a series of cases addressing the scope and authority for the issuance of conditional certificates of compliance as a means of validating parcels of land that may have been created without complying with the Subdivision Map Act. It is seemingly the last word on the subject.

Facts: Ronald and Shirley Nunn bought a tract of land in Contra Costa County (County). The land was conveyed as a single parcel, but it was described as consisting of four separate parts of unequal size. The separate parts had been created long before the Nunns acquired the property when a local agency acquired by eminent domain two narrow strips of land crossing the property and intersecting each other.

The Nunns attempted to subdivide the property by parcel map, but abandoned this effort for unspecified reasons and instead sought to legitimize the separate parts as separate legal parcels through the issuance of certificates of compliance pursuant to the Subdivision Map Act (Government Code § 66499.35). The County agreed and issued the certificates of compliance, but petitioners Save Mount Diablo (SMD) challenged the County’s decision. The trial court agreed with SMD and granted SMD’s petition. The Court of Appeal affirmed the trial court decision.

The Decision: The Nunns argued that the issuance of certificates of compliance was proper because the condemnation of the two narrow strips effected a subdivision of the property as a matter of law, or, in the alternative, that the County was required to issue conditional certificates of compliance pursuant to the provisions of Government Code Section 66499.35(b) even if the condemnation did not effect a subdivision under the Subdivision Map Act.

The Court reviewed the history and purposes of the Subdivision Map Act, citing with approval previous case law that held that a primary purpose of the Subdivision Map Act was to “ensure that new real estate development conforms with their communities' general and specific plans and other regulations adopted to guide growth,” to “encourage and facilitate orderly community development” and to “assure proper improvements are made, so that an area does not become an undue burden on the taxpayer.”

Consistent with previous case law and the express language of the Subdivision Map Act, the Court summarily rejected the argument that the condemnation proceeding effected a legal division of land. Government Code Section 66424 specifically provides that land separated by roads, streets, utility easement, or railroad right-of-way is considered to be contiguous and not separate parcels for the purposes of the Subdivision Map Act. Moreover, while Section 66428 provides that a conveyance to or from a governmental agency is exempt from the provisions of the Subdivision Map Act, the plain language does not address the remainder parcels that were not conveyed to a government agency.

Finally, in addressing the obligation of a local agency to grant a conditional certificate of compliance, the Court held that while the language is in a mandatory form, it can only be applied to circumstances where there has been an actual transfer or division of the parcels in question. As evidenced by the County’s issuance of certificates of compliance in this case, this nuance is not universally recognized. The purposes of the Subdivision Map Act can in fact be accomplished by a conditional certificate of compliance because the local agency has the discretion to impose conditions of approval that it may have imposed at the time that the applicant acquired the property or, if the applicant was the owner at the time the initial violation occurred, the local agency could impose any conditions that would be applicable to a current division of the property. (Government Code § 66499.35(b).) This is a point not addressed by the Court.

This result in Save Mount Diablo follows the logic of an earlier decision by a different division of the same court in Abernathy Valley Inc. v. County of Solano (2009) 173 Cal.App.4th 42. The Abernathy decision, however, seems to have disregarded the plain language of the statute. Most commentators have recognized that this language could be construed as permitting a division of land without complying with the remaining provisions of the Subdivision Map Act. This result, which seemingly disregards the stated purposes of the Subdivision Map Act, however, is tempered by the fact that the local agency has the ability to impose any and all conditions of approval that may have been imposed on a subdivision map, the only difference being the scope of the conditions that could be applied depending on whether the applicant was the violator of the Subdivision Map Act or a successor in interest.

Practice Pointers: While the result in this case may limit the mandatory issuance of conditional certificates of compliance, it should be noted that the result could have been avoided by having simply transferred the parcels to third parties who in turn applied for the conditional certificates of compliance. The real fix should be in the form of a legislative amendment to Section 66499.35(b) clarifying the intent of the Legislature.