Section 66439 Subdivision Map Act

[pezdork]

I got another head scratcher!

I have a city engineer who asked that we revise a dedication statement from something like:

The real property described below is dedicated as an easement for public purposes: an easement for access purposes shown hereon in favor of public agencies .

to

They do hereby offer to dedicate to public agencies an access easement shown hereon.

In my opinion, these statements say the same thing and are not confusing at all...but the map act to me is very clear saying we shall use the language: "The real property described below is dedicated as an easement for public purposes: (insert a description of the easement that is adequate to convey the dedication property"

when I pointed this out, I was met with some opposition that amounted to...we would prefer to leave the language as is. I pushed the point again stating that if it was a just a preference we should follow the map act. Then the city engineer consulted with a county surveyor who apparently said "the map act is just a guideline and the intent of that section is only to make sure we specifiy that its an easement or fee."

I gotta be honest...it doesn't seem worth arguing over other than i feel like the map act is very clear on this section and for the life of me i cant see how this section could be interpreted differently.

thoughts?

[T. S. Higgins]

I agree, under 66439 (d) (3), "the subdivider shall include the following language:" seems clear. Though it's not a major issue on the face of it, this is how the Map Act starts getting watered down in many agencies. Since you've noted that a City engineer (pre-82?) is providing comment, I'd be extra careful.

[dedkad]

There are some sections of the map act that may provide room for interpretation or sections that say that the wording shall substantially conform to the following, but I agree that this particular section is very clear and it should be followed verbatim.

[William Magee]

The language of 66439(d)(3) was written to try and address both dedications on the face of a map or as a dedication via a separate instrument. However, the language the authors of the statute amendment provided is more conducive to the form and flow of a dedication via separate instrument.
For dedications on the face of a map, I have to agree with the agency reviewers in that their language is more in line with the intent of identifying and conveying the dedication shown graphically on the map. The language of 66439(d)(3) is more well fitted to when a written description of location is a necessary element of the conveyance.
I believe the agency reviewers have made a correct assessment as to appropriate language that is more in line with the intent of the statute than a blind reading of the statute language might otherwise be interpreted.

[pezdork]

I'm glad to see most people agree with me...the point of this is less to do with the actual issue (which I personally feel is not really worth fighting over) but more to do with the problems we are facing with plan checkers, City Officials and even County Surveyors, that cant read and interpret the law correctly. its becoming a big and bigger problem. As a surveyor I should not have to be in a position where I have to say "well its not worth fighting over". If the law is clear then that should be the end of the story. What I cant accept is when something is clear and says do it this way...and someone says ...eh id rather see it this way. Then I get stuck looking like the asshole for bringing it up and holding up the project, when in reality it shouldn't have even been an issue... Am I really to the point where I need to report every minor squabble like this to the board to get clarification on every section of the law...that's just dumb.

lets break down the section:

(d)(1) if the subdivider needs to dedicate real property by map or separate instrument for public purposes, the agency must specify whether its in fee or an easement.
(d)(2) if its fee use the following language... (I don't know how it could be more clear)
(d)(3) if its an easement use the following language... (I don't know how it could be more clear)


by their interpretation the requirement for public hearings is that really the intent. I mean really the intent is to let the public know and comment on whats gonna happen so why not just do a mailer with a comment sheet or skywriting... or why even have the owners sign and notarize the map, I mean if we know them and trust them that should be good enough...if they end up not owning it, it doesn't do anything anyway right?

sorry this just really irks me.

[dmi]

I agree with William Magee. it seems to me the misunderstanding is on your part and that you are conflating various sections improperly. The local agency happens to be correct on this point. The local agency's "preference" seems incorrect to you becasue you have misread the section.

[-Dave Ryan-]

The “exciting” issue of dedications can actually get pretty tricky. Agencies that have been around for a while developing dedication language often have lots of experience with a mix of good and bad outcomes, unintended consequences, or evolution of wording based on legal advice from their counsel. Seemingly small tweaks in wording can have an effect on whether the dedication also gives public utilities or other districts any rights, whether the dedication goes only to the City or County the map is in (on behalf of the public), or maybe just to the agency itself, being appurtenant to a City or County piece of fee property. They also sometimes need to reject the dedication, retaining the right to accept it at a later date. They’ve often been down that road and have come up with fairly reliable wording that meets intent and are reluctant to alter it, for good reason.

I recall when 66439 was revised a few years back and CEAC was given an opportunity to comment. CEAC supported the intent to clarify fee versus easement, but opposed micro-managing of the dedication language, preferring to leave agency discretion intact due to different needs and experiences. Their feedback fell on deaf ears and the legislation went forward, to the detriment of the process, in my view. Keep in mind, once easements and/or dedications are in place on a filed subdivision map, it’s no easy feat to get them changed. In fact it’s an extremely difficult process, sometimes downright impossible. I support agencies in rationally managing the dedication wording, as the risk in not doing so is greater than following the code “to a tee”.

Dave Ryan,
Arcata, Ca.

[NickL]

...I recall when 66439 was revised a few years back and CEAC was given an opportunity to comment. CEAC supported the intent to clarify fee versus easement, but opposed micro-managing of the dedication language, preferring to leave agency discretion intact due to different needs and experiences. Their feedback fell on deaf ears and the legislation went forward, to the detriment of the process, in my view. Keep in mind, once easements and/or dedications are in place on a filed subdivision map, it’s no easy feat to get them changed. In fact it’s an extremely difficult process, sometimes downright impossible. I support agencies in rationally managing the dedication wording, as the risk in not doing so is greater than following the code “to a tee”....

Fantastic response, Dave, you've won me over. This idea of Agency's experience necessitating a flexible approach to required language on maps is an important one. In some cases, it feels like state law (revisions, etc.) attempts to fix a problem with an overly rigid construct; well intentioned, to be sure. The good thing for us humans is that we're able to reason out when it's appropriate to comply verbatim and when we can improve upon the law without devaluing its intent. And when you're unsure, this forum is a terrific sounding board.

Glad to see this question asked and differing opinions offered.

[dedkad]

If you are uncomfortable changing the language on the map, you could offer the dedication by separate document. Then you and the agency can have a free-for-all on the language.

[pezdork]

Dave Ryan:
great point. And while I disagree that in this case the flexibility makes a hill of beans difference, it is at least a rational answer beyond "we just prefer it that way" or "the law doesn't really mean what it says" and I can respect that. To again make my argument we are talking the difference between

1) real property described below is dedicated as an easement for public purposes: for access purposes shown hereon in favor of public agencies .
vs
2) They do hereby offer to dedicate to public agencies an access easement shown hereon.

its my opinion that these statements accomplish the exact same thing. I think they are both clear and unambiguous so why in that case would you not just follow exactly what the map act says? I can think of situations where modifying the language might make some logical sense, in this case I don't see it. In this situation see no harm to the city in fact I would say it protects them from errors because its uniform from map preparer to map preparer.

dmi: I am not misreading the section it is very clear. The intent is the reason I came here and hearing differing opinions (I prefer ones based in fact) . in my opinion the map act is very logically written if you follow the logic then there is usually only one conclusion. This makes the path of least resistance to follow the law. I don't think that's radical or misreading the intent at all.

let me relate an unrelated recent issue I had with another plan checker regarding Non Interference letters. We got a comment on a map on 3 plan checks which said "provide non-interference letters" first time we hadn't received one so we felt it was a legitimate comment. Second plan check we assumed they had lost them or that we had forgot to send them. Third check we called the checker and were informed that we hadn't provided NILs for the utilities in the existing public street under a franchise license agreement. The map act to me is very clear in this section the we need to get NILs for essentially easements or other record title interests...the franchise rights do not fall into that. Let me be clear in my 20 years of doing survey mapping ive never had to provide a NIL for franchise rights so it was shocking to me. So I asked for justification. they said initially it was in the map act then back tracked and said they had always done that, I provided them with a previous map that they checked and proof that wasn't the case. again they came back and said "just do it why are you complaining everyone just does it when we ask". I told the checker if its agency policy if there is a memo or an email from the city stating this is policy that's good enough for me. The city initially backed him up but then got the opinion of another surveyor that "NILs are required by the map act". So I called that surveyor ready to argue and as it turned out the question he was asked was "whether NILs are required for final maps" when I described what we were actually talking about...he backed me up. At that point the plan checker said this was a new county policy. So I called the county and the answer I got was interesting. What the county policy change was that when a public street on a map is being abandoned on the map, then the agency requests NILs from the utilities as they are entitled to easements for their existing facilities. That has legitimate merit but in our case we were not abandoning the street. in the end I pissed off the plan checker and a project manager at my company who thought I should have just went along with it. I also explained to the plan checker that had he stated in his comments "per city memo regarding NILs please provide NILS for the franchise rights" this would have alerted us to the issue sooner instead he made a half ass comment that he understood one way and we understood another.

The point of that story is this. Too often agencies and plan checkers and even surveyors make unilateral decisions based on incorrect interpretations of policy, law, or something they heard and too many of us just go along with them. Everything we do needs to have some justification for doing it. This is part of being a professional. If someone asks why and you don't know...you should go look it up, come here and get opinions, objectively think about it and then when you answer your answer has weight.

sorry for the rant .

[-Dave Ryan-]

8639, I agree 100% with your last paragraph. You have a lot of justified frustration. We're all obligated to get and stay educated, both map preparer, and map checker. Otherwise the process falls apart, and you get the mess you described. Rant excused.

6212