California Surveyors Forums

my client has a parcel which is a portion of a Lot from an old subdivision map. The original Lot comes from a Tract Map recorded in 1934 in the unincorporated territory of the county and the deed which essentially chops the lot in half was recorded in 1937. In 1958 the parcel and surrounding area were annexed by the city.

So I researched the city's current municipal code and it has no definition of a what a legal parcel is. I researched the county ordinances again no definition of what a legal parcel is.

Per the map act, a parcel is presumed to be legally created by deed if said deed was recorded before March 4, 1972 so long as the city or county didn't have an ordinance or law at the time or creation that required something else to legally subdivide the lot.

To be clear I have done work in this county for years and never have been challenged beyond providing a pre 1972 deed to validate the legality of a parcel. When I provided that to the city planning department, they initially told my client that their parcel is not legal. When we asked why their initial response was they remembered something being wrong with the legal description. When I verified that wasn't true, they said their cioty attorney looked at this extensively as said that the parcel wasn't created legally. I asked on what grounds they were saying that and they back off saying that they didn't know and that no one had been able to prove that it was legally created. I provided the map act section, copies of a full chain of title and sited their lack of definition in the municipal code they came back and said we need to provide proof that the county didn't have an ordinance governing this at the time. keep in mind the person at the city is not a surveyor and their attorney is not a land use attorney.

frankly I am at a loss as to how to move forward to prove this is a legal lot. Is there a resource out there that has old copies of the municipal code for counties?

I might be able to help you.
send me an email with a distillation of your issue.
Regards,

Yes. Petition the city for a Certificate of Compliance. Force the issue.

The county clerk should be able to help you determine the date their Parcel Map ordinance was enacted. 1937 is awfully old though.

So I haven't quite got the answer I was hoping but ill share some things I learned and opinion I gained upon reading up on the map act sections for Certificates of Compliance.

First it seems completely unfair to me to require a certificate of compliance to be applied for unless you cannot prove the parcel was lawfully created. The way its written you could have a lot from a tract and if the guy at the counter refuses to acknowledge it was lawfully created, he could force you to petition for a certificate of compliance, then they are forced to issue it cus it complies, but in the mean time they collect their standard fees and delay the development.

Second in my clients situation they have a copy of an adjacent development review from the city that included their parcel. The city states in their report that the parcel is not a legal parcel. they give no justification as to why. Furthermore they didn't send a Notice of Intent to record a Notice of Violation per Section 66499.36 of the map act, which was supposed to include a description of why the parcel is not considered lawful. Sadly that provision provides no ramifications for the city not doing that but its interesting that they are required to.

And the city could choose to provide a Conditional Certificate of Compliance, which still leaves your at their mercy in the future. CoC could run thousands of dollars and delay the project three, six months or longer.

Requiring a CoC for every old parcel created by deed is unreasonable, hence the provision stating they are presumed to have been lawfully created unless it can be shown that (... city fills in this next part ...)

I think the biggest issue we have today is that govt agencies can make erroneous decisions or not do their job and there are no avenues of recourse. Agencies cannot be sued and their employees are not reprimanded and this has been going on for decades.

20+ years ago I did some work for a company that went after shoddy builders, construction defect lawsuits. Some of the defects were things that the local agency inspector(s) should have caught such as; no fire blocks, no insulation between units, etc.
In my curiosity I was informed that even though the local agency inspectors signed off on the building inspection forms the local agency and its employees were immune to being named in the lawsuits.

Over the years I have seen where govt agencies obey the laws they want to obey and ignore the laws they don't want to obey such as; monument preservation, a fellow surveyor told me of a County in NoCal that keeps it's record maps in a cardboard box in no particular order, another County had their micro fisch films in the public area and didn't care if some were missing or misfiled. I have witnessed agencies making requirements for approval that they can't require but know that if the applicant fights it the delay is more of an inconvenience than agreeing to the illegal requirement.

Here is a prime example in Indiana, people unknowingly living in houses that had been meth labs. http://www.wthr.com/article/indiana-fam ... -breakdown. One case I read about a family bought their first home in 2014 and as a result of this investigation came home to find their house Red Tagged. Lucky for them it was only a short time in a motel and a $1000.00 inspection declared their house safe for living in. If not the cost of cleanup can be tens or hundreds of thousands of dollars. Do you think any govt agencies will be held financially responsible or any govt employees reprimanded for not doing their job that quite possibly could have life long health issues for the persons living in these homes?

Govt needs to be held accountable just like private industry, as long as they are not this indifference to public safety will continue and only get worse.

You should consider reading the certificate section again. There are many more options and routes to go. If it was me, I would not hesitate. The process is also subject to the permit streamlining act. I had one city sit on my application and we were ready to sue them when they rolled over, wisely I might add!

interesting turn: the city doesn't know what a certificate of compliance is and they don't have an application for it or anything. I told her send them a letter and request it and talk to a lawyer.

Is there a title company or two in your area that might be a "trusted resource" for the City? We here in Humboldt County often have one of the 2 local title companies provide a letter or other documentation regarding the creation of a parcel, and especially patent parcel status. This will usually satisfy the multiple departments. However, I have run into plenty of stubborn and stupid lawyers over the years who hide their lack of knowledge about land use behind their authority.

Has there ever been a building permit issued for the property?

If so, that would appear to rule out the conditional certificate of compliance. See 66499.35(c)

According to discussion last year with Mike Durkee, a Certificate of Compliance is not a permit and therefore exempt from the Permit Streamlining Act. I haven't independently verified that statement.

Was the parcel created before the City was incorporated? If so, then your parcel pre-dates any laws the City may have on the books.

You should get a chain of title and examine it for compliance or not. The burden of proof is on you.

That's interesting and I hope you are wrong because I threw the permit streamlining act in the citys face based on what people were saying in here. (ive grown accustom to the taste of my feet)

So to be clear ive done everything I can do (see original post) We did a full chain of title, I dug through the countys ordinance, This parcel was created before the city incorporated and the city still doesn't really have a subdivision ordinance that overrides the map act. They even list it as a buildable lot in their GIS system and one of the requirements for a buildable lot for them is that it be a legal parcel...but for some reason they are still refusing to recognize it. This is some Kafkaesque stuff here. Were my client is stuck in limbo.

Then they are entitled to a certificate of compliance per SMA. Force the issue.

See the attached link:

http://longtinslanduse.com/docs/ProceduresTimelines.pdf

Issuance of a COC is ministerial and the agency has to issue either a conditional or unconditional certificate.

See Page 4 at the bottom, where is says PSA does not apply to certificates of compliance.

Well then it sounds like its what I originally thought. The city is holding it up indefinitely under the guise of they don't know that it was lawfully created and are looking into it. Its literally been 5 months. This is a perfect example of where in practice the law can be ineffective. They must not refuse to act...but they can say they are looking into it and take 4 years to make a finding...(hyperbole)

I appreciate all the input.

First I suggest not throwing anything in anyone's face. Second Mike Pallamary stated issuing a Certificate of Compliance is a ministerial act. Where these type of governmental action is concerned a writ of mandate can be filed that requires the City to act. I suggest you write them a letter states all the facts that lead you to form the opinion that the parcel is a legal parcel.It certainly is a subdivision prior to March 1972 and if it meets the enumerated elements for determining whether on not it is a legal parcel, then the city ought too issue a Certificate of Compliance. Since the city did not exist at the time of the 1937 subdivision what were the county rules for legal parcels in 1937? What county office or department made the determination if a lot was legal or not in 1937.
The Subdivision Map Act gives control for development to the local agency and if this is line of argument then the City should issue a Conditional Certificate of Compliance and that COC will have conditions attached to it , like filing some kind of map.

Why does your client need a certificate of compliance?

So some closure, once my client applied for the Certificate of Compliance, the city agreed that her parcel was legally created and dropped the issue and she got her foot in the door.

DMI:
You need to read the rest of the thread I think its pretty clear what happened. in all honesty my part of this job was very minimal. the client wanted to do some development on her parcel and wanted to find out what she could do on her property (these are not surveying issues) when she tried to apply for design review they indicated her parcel was not legal. So she asked me to verify that. Again see above for the full account. The issue at hand was the city made a claim that the parcel was not lawfully created. I provided evidence that it was (they only thing I wasn't able to come up with definitively is whether the county had an ordinance governing subdivisions when the parcel was created...all that evidence was anecdotal and based on past experience and statements from the county surveyor) and they essentially drug their feet to delay her. The COC was merely a way to force the issue...I and most would contend it wasn't necessary.