Untitled California Attorney General Opinion ( 1992 )

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 91-811
of :
: JUNE 4, 1992
DANIEL E. LUNGREN :
Attorney General :
:
GREGORY L. GONOT :
Deputy Attorney General :
:
______________________________________________________________________________
THE HONORABLE DWIGHT L. HERR, COUNTY COUNSEL, COUNTY OF
SANTA CRUZ, has requested an opinion on the following question:
Is the University of California bound by the provisions of the Subdivision Map Act
when it constructs for-sale on-campus homes as part of a program to provide faculty housing?
CONCLUSION
The University of California is not bound by the provisions of the Subdivision Map
Act when it constructs for-sale on-campus homes as part of a program to provide faculty housing.
ANALYSIS
We are informed that the University of California (hereinafter "University") has
established a program whereby property lying wholly within a University campus may be utilized
for the construction of faculty housing. The land is leased on a long-term basis to the faculty
member through a non-profit University affiliate. The University retains the right to repurchase the
home on the leased property if the owner's employment is terminated. Various other restrictions
ensure that the University may maintain the property as part of its faculty housing stock. Being
situated on campus and sold as close to cost as possible, the homes serve as a significant inducement
in the recruitment and retention of faculty members for the University.
We are asked whether the University, in the process of creating the lots upon which
the faculty homes are built, must comply with the provisions of the Subdivision Map Act (Gov.
Code, §§ 66410-66599.37; hereinafter "Act").1 We conclude that under these circumstances, the Act
is inapplicable to the University's management of its property.
The Act generally requires that before property may be subdivided, a subdivision map
must be prepared by the subdivider and be approved by the governing body of the city or county in
which the land is located. (See 7 Miller & Starr, Current Law of Cal. Real Estate (2nd ed. 1990) §
20:77, pp. 189-191; 2 Ogden's Revised Cal. Real Property Law (1975) § 25.2, p. 1205.) With
certain exceptions, the specific requirements of the Act are to design the subdivision in conformity
with the local general plan, construct public purpose improvements such as streets and sewers, and
donate land or money for public uses such as parks and schools. (§§ 66439, 66473.1, 66473.5,
66474, 66474.01, 66474.2, 66474.5-66474.10, 66475-66478; 3 Witkin, Summary of Law (9th ed.
1987) Real Property, §§ 49-50, pp. 265-268.) The purposes of the legislation are to (1) promote
orderly community development, (2) insure proper improvement of the areas within the subdivision
that are dedicated for public purposes by the subdivider, and (3) prevent fraud and exploitation by
the subdivider. (Bright v. Board of Supervisors (1977) 66 Cal.App.3d 191, 195-196; Pratt v. Adams
(1964) 229 Cal.App.2d 602, 606; 56 Ops.Cal.Atty.Gen. 496, 497 (1973).)
In Morris v. Reclamation District No. 108 (1941) 17 Cal.2d 43, the Supreme Court
ruled that the Act was inapplicable to public agencies creating subdivisions authorized by law. The
court stated:
" . . . It is first urged that the map that was filed in connection with the
proceeding leading up to the reapportionment did not comply with the Subdivision
Map Act . . . in many respects. It is pointed out that the map that was filed was not
signed by the county treasurer, as owner; that the state was a part owner of the tract;
and that the state controller had no power to join in making the subdivision; that the
certificate of the state controller dedicating certain roadways was not acknowledged.
The complete answer to these contentions is . . . that the . . . Map Act, supra, does
not apply to subdivisions of land by a reclamation district, or in fact to subdivisions
by any public agency or public officer, where such subdivisions are authorized by
law." (Id. at p. 53.)
In 62 Ops.Cal.Atty.Gen. 140 (1979), we distinguished Morris in considering whether
the Act applied to the sale of 75 contiguous parcels by the Department of Transportation. We
explained:
"We are aware that in Morris v. Reclamation District No. 108 (1941) 17
Cal.2d 43, 53, the Supreme Court appears to indicate that the provisions of the Act
are inapplicable to all public agencies ``where such subdivisions are authorized by
law.' Morris . . . concerned a statute that gave the public agency in question the
authority to subdivide property in the furtherance of its governmental
responsibilities. Such activities thus came within the general principle of sovereign
immunity and the exception to the rule was inapplicable. . . . Accordingly, a broad
reading of Morris to the effect that the general provisions of the Act are inapplicable
even when sovereign powers are not impaired would be inappropriate and
inconsistent with the more recent pronouncements by the Supreme Court in such
cases as Regents of University of California v. Superior Court, supra, 17 Cal.3d 533,
1
All section references hereinafter are to the Government Code unless otherwise specified.
2. 91-811
536, and City of Los Angeles v. City of San Fernando, supra, 14 Cal.3d 199, 276-
277." (Id. at pp. 142-143.)2
Our 1979 opinion referred to "the general principle of sovereign immunity and the
exception to the rule." In Regents of University of California v. Superior Court (1976) 17 Cal.3d
533, 536, the Supreme Court expressed these canons of statutory construction with respect to the
activities of the University:
". . . ``[I]n the absence of express words to the contrary, neither the state nor
its subdivisions are included within the general words of a statute. [Citations.] But
this rule excludes governmental agencies from the operation of general statutory
provisions only if their inclusion would result in an infringement upon sovereign
governmental powers. "Where . . . no impairment of sovereign powers would result,
the reason underlying this rule of construction ceases to exist and the Legislature
may properly be held to have intended that the statute apply to governmental bodies
even though it used general statutory language only." (Hoyt v. Board of Civil
Service Commrs. (1942) 21 Cal.2d 399, 402 . . . .)' (City of Los Angeles v. City of
San Fernando (1975) 14 Cal.3d 199, 276-277.)"
Applying these governing principles of statutory interpretation, we find that the Act
uses only general language in describing the persons and entities that are subject to its provisions.
A "subdivider" is defined as "a person, firm, corporation, partnership or association . . . ." (§
66423.) Public agencies such as the University are not specifically included within the definition
of a "subdivider" for purposes of the Act.
As for the "sovereign powers" of the University, we note that a public corporation
known as the Regents of the University of California (hereinafter "Regents") administers the
University and constitutes a "``statewide administrative body'" and "``a branch of the state itself.'"
(Regents of University of California v. City of Santa Monica (1978) 77 Cal.App.3d 130, 135.)
Subdivision (a) of section 9 of article IX of the Constitution provides in part:
"The University of California shall constitute a public trust to be administered
by the existing corporation known as ``The Regents of the University of California,'
with full powers of organization and government, subject only to such legislative
control as may be necessary to insure the security of its funds and compliance with
the terms of the endowments of the University and such competitive bidding
procedures as may be applicable to the University by statute for the letting of
construction contracts, sales of real property, and purchasing of materials, goods, and
services. . . ."
With reference to the control of University property, subdivision (f) of the same constitutional
provision states:
"The Regents of the University of California shall be vested with the legal
title and the management and disposition of the property of the university and of
property held for its benefit and shall have the power to take and hold, either by
purchase or by donation, or gift, testamentary or otherwise, or in any other manner,
2
We provided a similar analysis and conclusion in 62 Ops.Cal.Atty.Gen. 136 (1979)
involving the sale of property by the 51st District Agricultural Association.
3. 91-811
without restriction, all real and personal property for the benefit of the university or
incidentally to its conduct; provided, however, that sales of university real property
shall be subject to such competitive bidding procedures as may be provided by
statute. Said corporation shall also have all the powers necessary or convenient for
the effective administration of its trust, including the power to sue and to be sued, to
use a seal, and to delegate to its committees or to the faculty of the university, or
other others, such authority or functions as it may deem wise. . . ."
As previously indicated, the Act provides for extensive local government control of
the design and improvements of a subdivision. If the Act were applicable to the University in the
present circumstances, exercise of such control by a local authority might result in the University
having to dedicate campus property for general park or recreational purposes, conform to particular
lot size and configuration restrictions, provide for public thoroughfares, and comply with other
requirements representing significant constraints on the University's ability to design the appropriate
environment for campus faculty housing and to provide such housing at affordable prices.
The Constitution, however, vests the Regents with the management and disposition
of University lands, and when using those lands for educational purposes, the powers of the Regents
are virtually plenary. (See San Francisco Labor Council v. Regents of the University of California,
(1980) 26 Cal.3d 785, 788; Regents of the University of California v. City of Santa Monica, supra,
77 Cal.App.3d at 136.) Providing for on-campus faculty housing serves the educational purposes
of the University. As a means of attracting and retaining the highest qualified professors and
improving the learning environment, such a program helps fulfill the University's educational
mission and purpose.
We note that in a case involving a city's attempt to apply its building and zoning
ordinances to the University's conversion of a commercial building to educational uses, the Court
of Appeal held that "the University of California is not subject to local regulations with regard to
its use or management of the property held by the Regents in public trust." (Regents of the
University of California v. City of Santa Monica, supra, 77 Cal.App.3d at 136-137.)
On the other hand, in cases where locally exercised police powers have been
successfully applied to the University, educational purposes were not directly at stake. In City Street
Improvement Co. v. Regents (1908) 153 Cal. 776, the University was held subject to an assessment
for a street improvement because it enhanced the value of the University's property and did not
affect lands which were being used for school purposes. Similarly, in Regents v. Superior Court,
supra, 17 Cal.3d 533, the court held that the University was subject to application of the state usury
laws because "its investment decisions are not so closely related to its educational decisions to cloak
the former with immunity even if the latter are immune." (Id. at 537.) There, the University had
chosen to invest its endowment by extending loans to private borrowers, but in so doing it was
acting in a capacity no different from any other investor in the open market. Investing to provide
revenue for the operation of the University was not enough to establish an educational purpose.3
3
In Laurel Heights Improvement Ass'n. v. Regents of the University of California (1988) 47
Cal.3d 376, an environmental impact report filed by the University in connection with the proposed
relocation of biomedical research facilities to a newly acquired building in an off-campus residential
area was found inadequate as an informative document. Because the Legislature intended the
California Environmental Quality Act to be interpreted in such a manner as to afford the fullest
possible protection to the environment and it specifically referred to governmental entities as being
subject to its terms, there was no question that the University's project would have to comply with
this statewide environmental statute. It was also assumed by the court that disposal of hazardous
4. 91-811
Here, the University intends to design and improve its property in furtherance of its
educational purposes. It will retain full title to the University land on which the faculty homes are
built, and the homes themselves will eventually revert to the University for further use as faculty
housing. The University's use of its property in this program is such an integral part of its land
management prerogatives and so closely related to its educational decisions that the activities are
not subject to the Act's provisions under principles of sovereign immunity.
Under the circumstances presented, therefore, we conclude that the University is not
bound by the provisions of the Act when it constructs for-sale on-campus homes as part of a
program to provide faculty housing.4
****
wastes from the research facility would be subject to regulation by the California Department of
Health Services.
Similarly, in 72 Ops.Cal.Atty.Gen 119 (1989), we determined that a campus pharmacy
operated by the University was subject to the licensure, inspection, and disciplinary provisions of
the Pharmacy Law as administered by the California State Board of Pharmacy. The Pharmacy Law
was found to specifically apply to state governmental agencies and as a health regulation, "is
unquestionably at the core of the State's police power." (Kelly v. Johnson (1976) 425 U.S. 238,
247.)
4
Because of the conclusion reached, we need not consider whether the proposed project
qualifies as a "subdivision." The University's land is apparently not "shown on the latest equalized
county assessment roll" (§ 66424) due to its tax-exempt status. (See 59 Ops.Cal.Atty.Gen. 581, 583
(1976); 55 Ops.Cal.Atty.Gen. 414, 417 (1972).)
5. 91-811