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  The American Surveyor     

The Tepusquet Boundary Survey—­Part 1 Print E-mail
Written by Justin Height, PS   
Saturday, 17 November 2012

A 1.475Mb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE

The JET Investment Trust is the owner of 900 acres of rugged, undeveloped land in the Tepusquet Canyon area, approximately 10 miles east of Santa Maria, California. Surrounding parcels in the area vary from ten acres to several hundred acres, some of which are developed with single family homes, and the JET property is bounded on the east side by the Los Padres National Forest. The JET property, and many others without close proximity to the county maintained Tepusquet Road, are undeveloped because of the prohibitive cost of installing utilities and roads to modern standards.

The JET family trust takes its name from the father's initials, a man who practiced dentistry in Santa Maria for many years, and is now living out his retirement in Idaho. The property was acquired piecemeal by JET's siblings during the 1980's, transferred to JET by means of dubious "lot line adjustment" deeds, and was then put in trust for his children. None of his eight children are willing or able to act as the trustee, and so the trust has been managed by Glen Nelson, a Santa Maria resident, who befriend JET and helped him deal with some of the many issues surrounding this property.

JET had lived on the property for a while in the 1990's, and during that time had allowed "squatters" to set up primitive living quarters, such as old trailers, plywood huts, and the like. Before long, some of the squatters were engaged in illegal activities such as marijuana cultivation and methamphetamine production, and the squatter's village morphed into an outlaw hideout. The sheriff was called in several times to investigate illegal drug activity, stolen property, and eventually even a murder that took place on site. Relief came finally when the "ring leader" was arrested and ended up in prison. The village dissipated, but accumulated junk stayed behind.

Glen Nelson became active in helping JET in the early 2000's, after taking in an apparently homeless man who turned out to be a property owner and retired dentist. It was during this time frame that JET began the process of selling portions of the property, unaware of state laws regulating real estate sales, and entered into an agreement to sell a portion using an assessor parcel number as the legal description. The buyer defaulted on payment several times, but has encumbered the property to the present day with legal claims. Again, in 2005, JET entered into an agreement to sell the entire property to an investment partnership. The two partners had widely differing intentions for the property: one immediately moved on site to live in a tent and cultivate marijuana, the other began plans to "flip" the property after their purchase was complete. In the ensuing five years, the partnership entered into an agreement to sell a portion of the property to an adjoining owner (with the sale to the partnership still pending), resulting in a land fraud legal case that is still pending because the adjoining owner was arrested on charges of illegal marijuana cultivation. Before his arrest, however, he managed to grade about two miles of road across JET property without proper permits, destroying hundreds of mature oak trees, and embroiling JET in a land use violation case with the Santa Barbara County planning agency. In addition, the arrested adjoining owner has asserted that he has an access easement over JET property, with no recorded document or historical use pattern to back up the claim. Since the arrest of the adjoining owner, Glen has managed to evict the last of the remaining squatters and remove their piles of trash and debris, as well as eliminate the last of the marijuana groves on the JET property. With the property vacated and cleaned, Glen is now focused on clearing title issues, resolving land use violations, and selling the property so the JET Trust can discharge its debts and close the book on the Tepusquet site.

In April 2008, Penfield & Smith (P&S) was approached by a representative of an investment partnership that was in the process of purchasing the JET property. One of the escrow items was to have a survey done to determine the boundary location on the ground since title companies were not willing to insure the property because of a history of indefinite boundaries. Although P&S was originally contracted by the partnership, Glen Nelson assumed the obligation on behalf of JET when a settlement was reached with the partnership in 2009. Glen wanted to complete the survey and in August 2012, the Record of Survey (RS) map was submitted to the Santa Barbara County Surveyor's office after a four year long survey effort to determine the boundary location.

For many years there had been uncertainty about the location of section lines and correlated property lines in the Tepusquet area. In the late 1970's, the County of Santa Barbara (acting on behalf of landowners in the Tepusquet Canyon area) agreed to request the Bureau of Land Management (BLM) to perform several dependent resurveys in the area, including Township 10 North, Range 32 West (which encompasses this survey) as well as several adjoining townships and land grant ranchos. The County also agreed to pay the BLM using money from their monument preservation fund. Looking back, two problems arose immediately by the time the resurvey started in 1980: the amount of money was completely inadequate to cover the level of effort truly required to perform a proper resurvey and the BLM failed to follow the Code of Federal Regulation (CFR) procedure which requires permission from a majority of the land owners in each Township to perform a dependent resurvey. Due to this fact and other procedural problems, the 1980-1982 dependent resurvey of T10N triggered two landowner protests.

Local landowner "AUH" (represented by the late Neil Cummins, Jr., PLS, Esq.) protested the survey to the BLM, which resulted in a suspension of the T10N resurvey in 1987. His protest developed into three cases filed with the Internal Board of Land Appeals (IBLA), the adjudication body within the Department of the Interior. The issues brought up in the original protest, and carried through the cases, included the authority of the BLM to conduct the dependent resurvey, and specific instances of the BLM survey not conforming to the rules contained in the 1973 Manual of Surveying Instructions (1973MSI). No decision was rendered by IBLA on the cases, which were ultimately dismissed because AUH and the BLM reached a settlement without resolving some of the specific issues. The agreement provided that the BLM would amend their field notes to include a cautionary note, and that the BLM would re-mark nine monuments as "control points" rather than as section corners. The T10N resurvey was reinstated by an amended plat and notes in March 1989 as a result of the settlement agreement.

In July 1989, local landowner "FR" protested the BLM's decision to reinstate the suspended resurvey. The FR protest once more brought up the authority of the BLM to conduct the dependent resurvey, an issue that was not resolved in the AUH/BLM settlement. The BLM was forced to suspend the amended resurvey again in November 1989. In order to address the problem (many years after the fact), the BLM and the County attempted to obtain consent from a majority of landowners in the township. Although the required consent of landowners was never obtained, the suspension was lifted in March 1998 since the FR protest was not pursued any further.

P&S concluded that the BLM resurvey is not an adequate relocation of the township and section lines as originally surveyed and located by the General Land Office (GLO) in the late 19th century, and may be in conflict with the 1973 MSI and the CFR on both technical and procedural grounds. Most of the lands within the T10N are held in private ownership and are legally described by reference to sections and portions of sections. Therefore, the purpose of our survey was to relocate the township and section lines based on using a different approach than the approach used by the BLM. A compelling detail of the AUH/BLM settlement us that the cautionary note placed in the BLM field notes emphasizes that the resurvey should not be relied upon to determine lines of private ownership, and that the survey is only to establish lines of federal ownership.

During the years of the survey, P&S provided additional services related to the illegal grading and the access easement questions, such as topographic mapping, conceptual engineering, title research, and exhibit map preparation. The most significant simultaneous service was applying for Certificates of Compliance, documents which are required for the legal sale of land in the absence of an approved subdivision map. This effort is a story in itself due to county opposition, very complex legal concepts and questions, and the fact that JET felt compelled to sue the County of Santa Barbara over the onerous condition of approval that the six existing parcels had to be "voluntarily merged" into one parcel.

One of the unique aspects of this survey is the involvement of land owners with regard to knowledge, commitment to fairness, personal testimony, and research material. Fortunately, AUH and FR had the prudence to ask questions, collect evidence, protest, and eventually file cases with the IBLA. Landowner AUH was instrumental in the final outcome of the P&S survey. Both he and his wife provided sworn statements under oath about certain key events that took place during and after the BLM survey. In addition, they provided copies of their neighborhood awareness letters written at the time of the 1980-1982 resurvey, copies of Santa Barbara County memos, letters and resolutions, their BLM protest letters, and IBLA case material and attorney correspondence, all of which were key to understanding the sequence of events, and the technical and legal issues.

Even more fundamental and critical to the formation of the P&S opinion of the location of the township and section lines was the work of George Ryzner. In fact, the establishments made by this survey rely in good part on the work and written testimony of George, one of several children of Vaclav Ryzner to whom a portion of T10N was patented in 1924. George grew up in Tepusquet Canyon in the same area covered by this survey. In adulthood, he was employed by the California Department of Transportation as a surveyor. According to George's memoirs, he conducted a survey in 1954 for the purpose of defining the boundaries of the Ryzner patent. During the years of 1982 to 1988, he assisted AUH in conducting surveys and investigations in response to the BLM dependent resurveys. His notes and maps helped formulate the basis of the AUH protest and later IBLA Cases. In both the 1950's and 1980's surveys, George relied on certain existing monuments and lines of occupation as a guide on where to look for evidence of the original GLO surveys of the township. George lived on this land during his childhood, maintained ownership of his father's patent through his adult life and knew the land well, and he personally observed collateral and corroborating evidence, such as fence lines and bearing trees, that supports the methods he used and the conclusions he made. His efforts at locating the Ryzner patent easily qualify as a good faith effort and establish bona fide rights as defined in the 1973MSI, which specifically provides that bona fide rights must be recognized and accounted for in any resurvey.

Although a few local landowners were hostile, the vast majority helped by showing us existing local monuments, many of which were ignored by the BLM. It was quite common for our field surveyors to hear a flood of historical information once we explained what we were doing. Most locals knew of the BLM resurvey and the conflicts it set off, and desired to assist us in finding an amicable solution. It is not often that a surveyor receives so much additional information from interested and affected parties, and the information definitely affected the technical approach to the boundary resolution. In fact without the information provided, the survey would not have been technically or legally feasible.

Justin Height is a Principal Surveyor and Regional Survey Manager for Penfield & Smith Engineers in California, where he has been employed since 1986. He graduated from California State University Fresno with a degree in Surveying & Photogrammetry, and is licensed in California and Nevada.

A 1.475Mb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE

 
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