Untitled California Attorney General Opinion ( 1995 )

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 94-809
of :
: May 18, 1995
DANIEL E. LUNGREN :
Attorney General :
:
MAXINE P. CUTLER :
Deputy Attorney General :
:
______________________________________________________________________________
THE HONORABLE SAL CANNELLA, MEMBER OF THE CALIFORNIA STATE
ASSEMBLY, has requested an opinion of the following questions:
1. When a local agency requires the filing of a tentative map in addition to a parcel map
with respect to the subdivision of property, may the agency impose, as a condition of tentative map
approval, the installation of irrigation facilities prior to approval of the parcel map?
2. When a local agency requires the filing of a tentative map in addition to a parcel
map with respect to the subdivision of property, may the agency impose, as a condition of map
approval, that an agreement be reached between the subdivider and an irrigation district regarding the
timing of the installation of irrigation facilities?
CONCLUSIONS
1. When a local agency requires the filing of a tentative map in addition to a parcel
map with respect to the subdivision of property, the agency may not impose, as a condition of tentative
map approval, the installation of irrigation facilities prior to approval of the parcel map.
2. When a local agency requires the filing of a tentative map in addition to a parcel
map with respect to the subdivision of property, the agency may not impose, as a condition of tentative
map approval, that an agreement be reached between the subdivider and an irrigation district regarding
the timing of the installation of irrigation facilities.
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ANALYSIS
The Subdivision Map Act (Gov. Code, '' 66410-66499.37; "Act") 1 regulates the
manner in which an owner of a contiguous block of land may subdivide or convey portions of the
property. (John Taft Corp. v. Advisory Agency (1984) 161 Cal. App. 3d 749, 755.) The Act establishes
general "statewide criteria for land development planning, and delegates authority to cities and counties
to regulate the details of subdivisions." (Benny v. City of Alameda (1980) 105 Cal. App. 3d 1006,
1010.) Its purposes are to "facilitate orderly community development by regulating and controlling the
design and improvement of subdivisions and to protect the buying public from exploitation" (South
Central Coast Regional Com. v. Charles A. Pratt Construction Co. (1982) 128 Cal. App. 3d 830, 845),
as well as to "assure proper improvements are made so the area does not become an undue burden on
the taxpayer" (Bright v. Board of Supervisors (1977) 66 Cal. App. 3d 191, 194).
Generally a subdivision may be created only by first obtaining local (city or county)
approval of a "final map" (' 66426 [five or more parcels]) or a "parcel map" (' 66428 [four or fewer
parcels]) filed with the county recorder ('' 66411.1, 66468). While the filing of a "tentative map" ('
66424.5) is normally only required prior to the filing of a final map ('' 66456-66457), the local agency
has the discretion to require preparation of a tentative map prior to the recordation of a parcel map for
divisions of four or fewer parcels. "Local ordinances may require a tentative map where a parcel map
is required by this chapter." (' 66428.) To obtain approval of the requisite map, the subdivider may
be required to fulfill certain conditions imposed by the local agency.
The two questions presented for resolution concern the provisions of section 66411.1,
which states:
"(a) Notwithstanding Section 66428, whenever a local ordinance requires
improvements for a division of land which is not a subdivision of five or more lots, the
regulations shall be limited to the dedication of rights-of-way, easements, and the
construction of reasonable offsite and onsite improvements for the parcels being
created. Requirements for the construction of offsite and onsite improvements shall be
noticed by a statement on the parcel map, on the instrument evidencing the waiver of
the parcel map, or by a separate instrument and shall be recorded on, concurrently with,
or prior to the parcel map or instrument of waiver of a parcel map being filed for
record.
"(b) Notwithstanding Section 66428, fulfillment of the construction
requirements shall not be required until the time a permit or other grant of approval for
development of the parcel is issued by the local agency or, where provided by local
ordinances, until the time the construction of the improvements is required pursuant to
an agreement between the subdivider and the local agency, except that in the absence of
1
All section references are to the Government Code unless otherwise indicated.
2. 94-809
an agreement, a local agency may require fulfillment of the construction requirements
within a reasonable time following approval of the parcel map and prior to the issuance
of a permit or other grant of approval for the development of a parcel upon a finding by
the local agency that fulfillment of the construction requirement is necessary for either
of the following reasons:
"(1) The public health and safety.
"(2) The required construction is a necessary prerequisite to the orderly
development of the surrounding area."
We are informed that a property owner intends to subdivide 80 acres of rural land into four equal
parcels. The county requires a tentative map for such a subdivision. The 80 acres is served by an
irrigation canal on one side. If the new parcels are configured parallel to the canal, another canal
running perpendicular to the first will be necessary to reach the other three new parcels. Under the
terms of section 66411.1, when may the county require the construction of the perpendicular canal?
1. Requiring Installation of Improvements Prior to Parcel Map Approval
In 62 Ops.Cal.Atty.Gen. 175 (1979), we concluded that a local agency could not
require construction of offsite or onsite improvements to be completed prior to approval of a parcel
map. We stated:
"The first question concerns whether a local agency can require that
improvements in . . . smaller subdivisions [of four or fewer parcels] be completed prior
to the recordation of the appropriate map. Since sale of the parcels is generally
dependent upon recordation of the map (' 66499.30, subd. (b)), such a requirement
would insure that the improvements were made before sale. On the other hand, it may
be argued that the landowner should not be required to make the necessary
improvements until he is ready to develop the property. Based upon an examination of
the controlling statute, section 66411.1, we conclude that completion of the
improvements may not be required prior to the recordation of the parcel map.
"Section 66411.1 provides that in divisions of land into four or less parcels, the
improvements required by local ordinance must be limited to ``the dedication of
rights-of-way, easements, and the construction of reasonable offsite and onsite
improvements for the parcels being created.' Under the statute, notification of the
construction requirements must be ``by certificate on the parcel map, on the instrument
evidencing the waiver of such parcel map, or by separate instrument and shall be
recorded on, concurrently with, or prior to the parcel map or instrument of waiver of a
parcel map being filed for record.'
"Although the improvements can be specified and their description recorded
prior to the recordation of the appropriate parcel map, the Legislature has further
provided in the statute that:
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"``Fulfillment of such construction requirements shall not be required until such
time as a permit or other grant of approval for development of the parcel is issued by
the local agency or, where provided by local ordinances, until such time as the
construction of such improvements is required pursuant to an agreement between the
subdivider and the local agency, except . . . that in the absence of such an agreement, a
local agency may require fulfillment of such construction requirements within a
reasonable time following approval of the parcel map and prior to the issuance of a
permit or other grant of approval for the development of a parcel upon a finding by the
local agency that fulfillment of the construction requirements is necessary for reasons
of . . . public health and safety; or . . . orderly development of the surrounding area.'
(Emphasis added.)
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
". . . [W]e construe section 66411.1 as allowing a local agency to require the
completion of the necessary improvements within a reasonable time after the parcel
map has been approved if no agreement has been reached setting an earlier date of
completion pursuant to a duly adopted ordinance authorizing such agreements." (Id.,
at pp. 177-178; fn. omitted.)
The only significant difference between the present inquiry and our 1979 opinion is that here the local
agency has required the filing of a tentative map in addition to the filing of a parcel map. How does
this fact affect our prior conclusion?
We believe that whatever argument could once have been made regarding the authority
of a local agency to approve a tentative map, the recent amendment of section 66411.1 disposes of such
argument when dealing with subdivisions of four or fewer parcels. In 1994, section 66411.1 was
amended (Stats. 1994, ch. 655, ' 1) to add the phrase "Notwithstanding Section 66428" in both
subdivisions (a) and (b). Such language makes the limitation provisions of section 66411.1 controlling
over the terms of section 66428. (See People v. Superior Court (Hubbard) (1991) 230 Cal. App. 3d
287, 296; In re Marriage of Dover (1971) 15 Cal. App. 3d 675, 678, fn. 3; State of California v. Superior
Court (1965) 238 Cal. App. 2d 691, 695; 76 Ops.Cal.Atty.Gen. 4, 7 (1993).)
Consistent with this interpretation is the legislative history of the 1994 amendment of
section 66411.1. In the report on the Assembly Committee on Local Government dated April 20,
1994, the proposed legislation is described in part as: "Provides that the restriction of parcel map
improvements . . . apply notwithstanding the authority for local governments to require a tentative map
when a parcel map is required . . . ." Similarly in the report of the Assembly Committee on Ways and
Means dated May 18, 1994, it is stated that the statutory amendment is to provide "that the restriction
on improvements shall apply notwithstanding the authority for local governments to require a tentative
map . . . ."2
2
"Statements in legislative committee reports concerning the statutory purposes which are in accordance with a
reasonable interpretation of the statute will be followed by the courts. It will be presumed that the Legislature adopted the
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Accordingly, even though a local agency may require the filing of a tentative map under
the terms of section 66428, the agency may not circumvent the limitations contained in section 66411.1
governing "a division of land which is not a subdivision of five or more lots." One such statutory
limitation 3 is: "fulfillment of the construction requirements shall not be required until the time a
permit or other grant of approval for the development of the parcel is issued by the local agency" unless
there is an agreement with the subdivider; a finding of necessity due to public health and safety or
orderly development of the surrounding area allows the local agency to require construction only
"within a reasonable time following approval of the parcel map."
We conclude in answer to the first question that when a local agency requires the filing
of a tentative map in addition to a parcel map with respect to the subdivision of property, the agency
may not impose, as a condition of tentative map approval, the installation of irrigation facilities prior to
approval of the parcel map.
2. Requiring Installation of Improvements By Agreement
As indicated in response to the first question, a subdivider may agree to construct onsite
and offsite improvements under the terms of section 66411.1. Such an agreement might specify that
the improvements are to be constructed at a particular time, including prior to the approval of the parcel
map. Does section 66411.1 allow the local agency to require such an agreement between the
subdivider and a water district for the construction of irrigation facilities? We conclude that it does
not.
We are to interpret statutes so as to "effectuate legislative intent." (Burden v. Snowden
(1992) 2 Cal. 4th 556, 562.) "In determining intent, we look first to the language of the statute, giving
effect to its ``plain meaning.'" (Kimmel v. Goland (1990) 51 Cal. 3d 202, 208.) "If a statute's language
is clear, then the Legislature is presumed to have meant what it said, and the plain meaning of the
language governs." (Kizer v. Hanna (1989) 48 Cal. 3d 1, 8.)
An "agreement" is commonly defined as "the act of agreeing or coming to a mutual
arrangement . . . harmonious understanding . . . ." (Webster's Third New Internat. Dict. (1971) p. 43.)
The term is not ordinarily understood to involve involuntary or forced consent.
We find nothing in the statute suggesting that a local agency may impose an agreement
upon a subdivider. Indeed, the language supports the contrary conclusion by indicating the course of
action a local agency may take if an agreement cannot be reached with the subdivider ("in the absence
of an agreement, a local agency may . . . .").
proposed legislation with the intent and meaning expressed in committee reports." (In re Marriage of Paddock (1971) 18
Cal. App. 3d 355, 359; accord, O'Brien v. Dudenhoeffer (1993) 16 Cal. App. 4th 327, 334.)
3
Other limitations contained in section 66411.1 are not within the scope of this opinion, such as the requirement that the
offsite and onsite improvements be "reasonable."
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The legislative history of section 66411.1's most recent amendment in 1994 supports
the determination that an agreement may not be forced upon the subdivider. The report of the Senate
Committee of Local Government dated July 6, 1994, indicates that "[c]onstruction of improvements are
not required until development of the property, unless the city or county determines they are necessary
because of health and safety reasons." No suggestion is contained in the committee reports that a local
agency may require construction of improvements by imposing an agreement upon the subdivider.
In 71 Ops.Cal.Atty.Gen. 344, 346-349 (1988), we concluded that a city and a county
were not required to reach an agreement regarding the transfer of property tax revenues in a city
annexation proceeding, since the statute in question only required them to "commence negotiations."
Here, under the terms of section 66411.1, the Legislature has not even required negotiations.
In answer to the second question, therefore, we conclude that when a local agency
requires the filing of a tentative map in addition to a parcel map with respect to the subdivision of
property, the agency may not impose, as a condition of tentative map approval, that an agreement be
reached between the subdivider and an irrigation district regarding the timing of the installation of
irrigation facilities.
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