Certificate of Compliance by Agency Mistake?

[mbstanton]

Here are the facts:

An original deed crosses over a future state highway (not yet constructed). This is a pre-1960 deed, pre-dating any requirement for parcel map or tract map.
In 1988, certificates of compliance were issued by the County based on the lots shown on a subdivision map from 1890. This is before the Morehart v. County of Santa Barbara decision that invalidated pre-1893 maps. The certificate was issued (my mistake) for only for the portion of the parcel that lies northerly of the highway, leaving out the portion south of the highway in the description. The Highway was deeded to the state in fee in 1962. The owner now wants to sell off the portion lying south of the Highway.

Question:

Does the county now have to acknowledge the portion of the property lying south of the highway, since this portion of the parcel was unintentionally omitted from the 1988 Certificate of Compliance?

In my opinion, they have two choices - issue a straight certificate for the remainder parcel, or issue a conditional cert.

The agency want to issue a conditional cert with a requirement to process a one-parcel Parcel Map.

I'm wondering if there is a precedent for this situation anywhere in the state?

Thanks
Mike Stanton, PLS 5702

[mpallamary]

Have any building permits been issued?

[mpallamary]

There is a Supreme Court case that might be on point here:

NATHAN KEIZER et al., Plaintiffs and Respondents, v. LEONARD ADAMS, as Supervising Building Inspector, etc., et al., Defendants and Appellants
S.F. No. 22716 - Supreme Court of California
2 Cal. 3d 976; 471 P.2d 983; 88 Cal. Rptr. 183; 1970 Cal. LEXIS 321
July 30, 1970

[The suggestion that the only remedies of plaintiff-purchasers are to either join with other purchasers of lots in the illegal subdivision and obtain approval by the county of a subdivision map, or else to exercise their statutory right to void their purchase ( § 11540, Bus. & Prof. Code) is untenable. No procedure is suggested, and we are aware of none, by which plaintiffs could compel the other purchasers to join in seeking to correct the illegal acts of their predecessors in interest. (See Munns v. Stenman, supra, 152 Cal.App.2d 543, 552.) With respect to the right to void the transaction, section 11540 specifies in pertinent part that a deed made contrary to the act is voidable at grantee's option "within one year after the date of execution of the deed," and, further, that the deed of conveyance "is binding upon any assignee or transferee of the grantee." Thus, if a purchaser of a lot from an illegal subdivider did not seek a building permit within one year after his purchase he might well not discover within that time that facts existed giving him the right to void the purchase, and, additionally, in case he resold the lot the second purchaser is by the ex-press terms of the statute denied any voiding rights what-ever.]

[Edward M Reading]

Have any building permits been issued?

No building permit on the PIQ

[mpallamary]

I think you have a legal parcel by default. One cannot be half pregnant. I believe that if the bounding lines are legal, the parcel has to be legal. You cannot have a parcel with all legal lines/bounds and not be legal. The lines are legal; the lot is legal.

[dedkad]

What is the purpose of requiring the one-parcel Parcel Map?

[Elias French]

I agree with Dedkad, what would one lot parcel map accomplish? The deed is done already.

This scenario raises a good question, one that Keizer v Adams answers directly. The question of: can a condition of a conditional COC be to record a PM or FM?

A COC addresses the legality of a parcel that has already been created. The conditions attached to a conditional COC are just those, conditions such as improvements, dedications, etc., that would have been required if the subdivision was done legally. A map is not a condition of a subdivision, it is the subdivision. It is not possible nor necessary nor appropriate to record a map today that purports to create a lot which has in fact already been created. The only question, which the COC process exists to answer, is: was a parcel created legally or not, and if not what must the owner do before a permit may be issued.

Keizer v Adams seems to address this squarely, and it stands the test of logic for this one anyhow, but the subject comes up again and again, particularly with Local Agencies... The urge to require a map be filed now, any map, because one wasn’t filed in the past, seems too hard to resist. That is my understanding, curious to hear from others.

[mpallamary]

It has been my experience that the primary reason to require a map is to fill the city/county coffers. Yes, that is a bit cynical but I deal with these cases across the state. At the end of the day, nothing changes and no conditions are placed on the COC. What does happen is the applicant gets whacked for $15,000. in fees that produce nothing but staff hours.

[David Kendall]

Could a local agency condition a record of survey?

[Ric7308]

Could a local agency condition a record of survey?

No

[mpallamary]

A Certificate of Compliance is a Ministerial approval - it is NOT discretionary.

[Paul Goebel]

I had the same situation occur in Encinitas. The circumstances sound strikingly similar. The City issued two Certificates of Compliance, one on each portion of the parcel, on each side of the highway correspondingly. Taking a strip of land for the highway did not subdivide the land, but a poorly executed sequence of grant deeds in the following years did. I think you have two parcels by default.

[Edward M Reading]

It has been my experience that the primary reason to require a map is to fill the city/county coffers. Yes, that is a bit cynical but I deal with these cases across the state. At the end of the day, nothing changes and no conditions are placed on the COC. What does happen is the applicant gets whacked for $15,000. in fees that produce nothing but staff hours.

Do you really believe that people that work for agencies do this? What would be the motivation? It's not like we actually get the money. It just creates more work for us. Cynical? Yes. Mistaken? Definitely.

[mpallamary]

Thanks Edward. I appreciate your comments. I am privy to more information related to this topic that discretion does not permit me to share.

Be well.

[mpallamary]

Edward, I should add that part of the problem deals with contract firms working for the city who spend 20 hours reviewing a COC that took 20 minutes to prepare. The other is city employee unions who build their time up for employment and retirement. In some municipalities, folks will "tap" a project to bill into the account, to bolster their time and "importance."

It's a problem.

[Edward M Reading]

While I agree that those things are problems, none of them have anything to do with requiring a map is "to fill the city/county coffers".

[mpallamary]

Thanks. I respectfully disagree based upon my experiences and discussions with staff in other cities. Needless to say, all cities are not bad. I stand by my statement.

[mpallamary]

Edward: Please see the attached as an example.

This is part of the problem.

[mpallamary]

From the development services report:

"c. Excessive Costs. Some applicants oppose the use of the open-ended deposit account
system, where the cost of processing depends on the amount of time charged to
the project by DSD staff.

They contend this system subjects the applicant to uncontrolled fees and creates an incentive for the department to drag out the review process
to increase revenue.

Concerns about processing cost are most significant for small businesses and homeowners. For most developers, review time is a much bigger issue."