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Surveyors have a natural respect for historic maps and, of course, rely on them regularly. A Civil War-era map was center stage in a California Supreme Court case about legal recognition of subdivisions. The effectiveness of maps to divide land in the absence of government regulation was the issue in Gardner v. County of Sonoma, 29 Cal.4th 990 (2003). With its interpretation of subdivision law, Gardner exemplifies the ever-present land use debate: Where is the balance between the rights of landowners and the power of government to regulate for the public good?

The case received a good amount of press in California because at stake was a "grandfather" exemption from approval procedures for maps that predate the earliest subdivision laws. Many thousands of maps statewide fit this category, according to the San Francisco Chronicle, including some "saloon surveys" hastily drawn "over a bottle of whiskey." Adding to its noteworthiness, the case came on the heels of a high-profile land use dispute over development of coastal property that also involved a nineteenth century map. After a legislative response, and a new rule from Gardner, opportunities to make use of pre-existing lots in California clearly have narrowed.

Before examining Gardner, we will look at the governing law, as well as the context provided by the earlier coastal case.

The California Subdivision Map Act
Most would agree that government may properly establish procedures and minimum standards for subdividing parcels of land. California's original effort was an 1893 law that easily fit onto a single page and essentially required the preparation and recording of an accurate map. Today, the rules comprising the state Subdivision Map Act ("Map Act") are substantially more intricate, with a review process that includes public hearings and the opportunity to impose conditions on approvals. (See Cal. Gov't Code § 66410 et seq.) The court in Gardner explained that local government review of proposed subdivisions serves to "facilitate orderly community development."

Lot Line Adjustment
A strategic value of adjoining parcels that already exist is the potential to reconfigure their interior boundaries into more desirable layouts without the need for map approval. This "lot line adjustment" exemption from Map Act requirements recently came under fire. In 2001 California lawmakers responded to what they viewed as an abuse of this strategy when the owner of a famous property sought, by way of adjustments, to shift numerous inland lots to valuable coastal locations.

The owner of the vast property surrounding San Luis Obispo County's Hearst Castle established the existence of more than 200 lots shown on a map dating to 1852. The owner, Hearst Corporation, accomplished most of its requested adjustments because the process was then largely ministerial and did not provide much room for an agency denial.

The Legislature responded by amending the law to limit the number of parcels that can be adjusted to four. Further, while reconfigured lots always had to respect zoning and building codes, the law now demands conformance with applicable general plans and coastal plans. The result is more agency discretion in the granting of adjustments.

As for the Hearst Corporation's designs for its property, as of June 2004 it reportedly had reached an agreement with the state permitting limited development, while preserving most of the land through conservation easements and the state's purchase of coastal portions. The Hearst story was unaffected by Gardner, but it helps explain the suspicious eye that some public agencies have toward the power of old maps.

The Facts in Gardner
In Gardner, the plaintiff owned 158 acres of a much larger holding shown on an 1865 map titled, "The Redwood Estate of S.H. Greene." This map carved over 1,000 acres of land into some 90 rectangular lots, shown with lot numbers and dimensions. The County Recorder recorded the map, which appears not to have been prepared pursuant to any regulation of the time. Further signaling its recognition, the subdivision was identified on an official County atlas in 1877. The Greene Map was also used for reference in a later deed.

The acreage at issue in Gardner encompassed 12 full or partial lots of the Greene Map. In accordance with the Map Act the Landowner asked the County to certify the 12 lots as legal, which would allow their sale (and potential adjustment of lot lines) without subjecting them to new mapping requirements. The County determined that the Greene Map had not created legal lots, so it denied the request. After exhausting administrative remedies, the Landowner sued the County to compel it to issue the requested certificates. The lower courts ruled in favor of the County, finding that maps recorded prior to the state's 1893 map statute are "antiquated" and ineffective. The Landowner appealed to the state high court.

Grandfather Provisions
First, the court held the Greene Map was not an "official map" in compliance with the Map Act because it had not been prepared or reviewed by a city engineer or county surveyor. Regarding the subdivision's inclusion in the County's 1877 atlas, the court said this "appears of no consequence" because the atlas had been adopted merely "for reference to township lines and other unspecified county purposes."

But the Map Act recognizes the validity of parcels that predate it, and the court evaluated the Greene Map subdivision in light of these provisions. For example, before subdivision maps were required, deeds commonly described new parcels in metes and bounds. If conveyed in this manner (sometimes referred to as "deed cuts"), the Map Act regards these as existing legal lots.

Unfortunately for the Landowner, the Greene Map lots at issue had never been separately deeded. The 158-acre parcel was sold as a unit, and its legal description cuts across Greene Map lot lines. Had they been conveyed, these lots could not now be questioned.

Other grandfather provisions supplied a better fit for the Greene Map. Among them, the Map Act expressly prohibits local governments from deeming as "merged" separate lots that were "created under . . . any prior law regulating the division of land, . . . or which were not subject to those provisions at the time of their creation . . . ." The mere fact that they are now under single ownership cannot result in their merger, or loss of separateness.

The Greene Map was not subject to any subdivision law when it was recorded in 1865. But the court held the "anti-merger provision" does not apply because it fails to "address the creation of parcels in the first instance." In other words, because no procedure existed to originally establish the Greene Map subdivision, the court reasoned there are no legal lots to fall within the Map Act's grandfather protections. The court said:

"[U]nlike a modern-day final map or parcel map, which upon recordation ordinarily converts what was formerly a single parcel into as many separate lots as appear on the map . . . , the recordation of a subdivision map in Sonoma County in 1865, without something more (such as a conveyance), could not and did not work a legal subdivision of the property shown thereon . . . ."

But beyond selling his lots, what more could the 1865 landowner have done to establish his subdivision? He probably incurred substantial expense engaging professionals to survey the property and prepare a detailed map. And he dutifully, and with foresight, submitted this map to the County Recorder's office, which accepted it for recordation.

Viewed from the twenty-first century, the system that was available to S.H. Greene arguably succeeded: The map accurately communicated the landowner's intent, and the recording system provided notice of the subdivision to later generations. The map may not have been filed pursuant to a statute, but it would take nearly thirty years for a state mapping law to arrive on the scene. The Greene Map reflects the only system that existed at the time.

Policy Concerns
The court in Gardner expressed concern that the law's "objectives and protections would be thwarted if pre-1893 recorded maps such as the Greene map were deemed sufficient by themselves to place parcels into compliance with the [Map] Act . . . ."

But the court also acknowledged that certifying the lots as legal would "not confer any right to develop the resulting parcels . . . ." Because of other applicable rules, the public remains protected from problematic development of substandard lots (e.g., those with inadequate area or accessibility) regardless of the holding of Gardner.

Rather than categorically reject old maps without regard for their accuracy or intended purpose, the public interest can be secured with a more tailored approach. Prior to Gardner, some jurisdictions still recognized old lots despite certain concerns (e.g., environmental effects, or the loss of agricultural land). At least one county dealt with its concerns by requiring a use permit to develop lots created before a specified year. (See Stanislaus County Code § 21.20.030.E.) The solution added a layer of discretionary approval, thus protecting the public, while respecting the effectiveness of historic maps.

Also before development, public agencies can now apply the policies of general plans and coastal plans when reviewing requests for lot line adjustments. This amendment to the Map Act adds yet another tool to control the use of old lots.

With ample safeguards either existing in the law, or available as strategies to local governments, it seems unnecessary for the court to have rejected as "antiquated" legitimate maps that adhered to the rules of their time. In any case, Gardner reminds us of the standing of maps in history, where even the most unlikely may become the subject of scrutiny centuries after its inception.

Lloyd Pilchen is a lawyer with Jeffer Mangels Butler & Marmaro LLP in Los Angeles, and a California and Illinois surveyor.

A 387Kb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE