Untitled California Attorney General Opinion

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
ROB BONTA
Attorney General
_________________________
:
OPINION : No. 18-902
:
of : March 24, 2022
:
ROB BONTA :
Attorney General :
:
MANUEL M. MEDEIROS :
Deputy Attorney General :
THE HONORABLE LISA A. TRAVIS, SACRAMENTO COUNTY COUNSEL,
has requested an opinion on a question related to the Subdivision Map Act.
QUESTION PRESENTED AND CONCLUSION
If a subdivider owns one parcel and subdivides that parcel pursuant to a parcel
map (that is, into four or fewer parcels), then sells all of the resulting subdivided parcels,
and subsequently acquires a contiguous parcel and seeks to divide that parcel pursuant to
a parcel map, should the local agency count the previously subdivided parcels as part of
the second application?
Yes. In this situation, the local agency should count the parcels created by the first
subdivision as part of the second application.
BACKGROUND
The subdivision of land is a key component of land development. As one
commentator has observed, “[t]he subdivision of land—designating lots and laying out
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streets—is the aspect of development which most permanently and significantly sets the
pattern for the development of a community.” 1
California began regulating the mapping of subdivisions in 1893, and first enacted
a comprehensive “Subdivision Map Act” in 1937. 2 The Act prohibited the sale of
subdivided land without prior government approval of the subdivision, and authorized
local governments to regulate the “design and improvement of subdivided property.” 3
Reflecting the potential impact of development, the Act’s purposes are manifold:
[A] primary goal of the Map Act and local subdivision ordinances is to
encourage orderly community development by providing for the regulation
and control of the design and improvement of a subdivision, with proper
consideration of its relation to adjoining areas. . . . The Map Act facilitates
coordination of subdivision planning (including, e.g., lot size and
configuration, street patterns, and utility easements) with the overall
community planning shown on the general and specific plans adopted by
the city or county. . . . A related purpose of the Act is to ensure consistency
of subdivision design and improvement with applicable local standards for
development type and density, public health, and other environmental
concerns.
1
Comment, Land Development and the Environment: The Subdivision Map Act (1974)
5 Pacific L.J. 55-56, citations omitted.
2
See Stats. 1893, ch. 80; Stats. 1937, ch. 670, § 31, p. 1874; see now Gov. Code, §§
66410-66499.38.
3
Stats. 1937, ch. 670, §§ 1, 4, pp. 1863, 1865.
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By regulating and controlling the development of subdivisions, the Map
Act also serves to protect the public and individual transferees from fraud
and exploitation. 4
Generally, a subdivision may only be created by first obtaining local government
approval of a subdivision map. When a proposed subdivision will create four or fewer
parcels, only a “parcel map” is required. 5 However, when a proposed subdivision will
create five or more parcels, a two-step mapping process is ordinarily required: the filing
of both a “tentative map” and a “final map.” 6 The difference in requirements reflects the
fact that larger subdivisions give rise to various considerations that may not be associated
with smaller subdivisions. These include the layout of lots, circulation, and access within
the subdivision; the nature and extent of dedications and improvements; and the
subdivision’s relationship to adjoining lands. 7 For larger subdivisions, “[t]he tentative-
map process gives the staff and the approving body (usually the planning commission)
flexibility in suggesting acceptable changes to the subdivision before it is finally
mapped.” 8
4
Curtin & Merritt, California Subdivision Map Act and the Developmental Process (CEB
2d ed. 2018), § 1.6, pp. 1-9 – 1-10 (hereafter, Curtin & Merrit), citing (in addition to
provisions of the Map Act) Pratt v. Adams (1964) 229 Cal.App.2d, 602, 606; van’t Rood
v. County of Santa Clara (2003) 113 Cal.App.4th 549; Bright v. Board of Supervisors
(1977) 66 Cal.App.3d 191, 194 (Bright); see also South Central Coast Regional Com. v.
Charles A. Pratt Construction Co. (1982) 128 Cal.App.3d 830, 844-845 (Act’s 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”); Benny v. City of Alameda (1980) 105 Cal.App.3d 1006, 1010 (Act
establishes general “statewide criteria for land development planning, and delegates
authority to cities and counties to regulate the details of subdivisions”).
5
Gov. Code, § 66428.
6
Gov. Code, § 66426, subd. (a). A tentative map is “made for the purpose of showing
the design and improvement of a proposed subdivision and the existing conditions in and
around it and need not be based upon an accurate or detailed final survey of the
property.” (Gov. Code, § 66424.5, subd. (a).) By ordinance, a local agency may require
a tentative parcel map even when a parcel is divided into four or fewer parcels. (Gov.
Code, § 66428, subd. (a).)
7
See Curtin & Merritt, supra, § 3.1, p. 3-2.
8
Curtin & Merrit, supra, § 3.1, p. 3-2.
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The two-step mapping process that applies to larger subdivisions can be more
costly and time-consuming than the “parcel map” process that applies to smaller
subdivisions. 9 Accordingly, subdividers may use various approaches to avoid the more
extensive mapping requirements. 10 One such approach, referred to as “quartering,”
involves successive divisions of land into four or fewer parcels as a way of avoiding
tentative- and final-map requirements. 11
The opinion request describes a situation where a subdivider owns one parcel,
subdivides it into four parcels using a parcel map, and sells all of the resulting subdivided
parcels. The subdivider subsequently acquires a contiguous parcel and seeks to divide
that parcel into another four parcels. The request asks whether the local government
should consider the successive subdivisions of the parcels, never simultaneously owned
by the subdivider, as one subdivision for purposes of applying the provisions of the Map
Act – meaning it would treat the subdivision as creating a total of eight parcels, triggering
the Map Act’s two-step mapping process.
ANALYSIS
As a general rule, the Map Act requires a tentative and final map “for all
subdivisions creating five or more parcels.” 12 The critical question here is whether the
“subdivision[] creating five or more parcels” must happen in a single act or can occur
9
Compare Gov. Code, §§ 66433–66443 (final maps) with §§ 66444–66450 (parcel
maps); see Bright, supra, 66 Cal.App.3d at p. 195 (higher standards placed on mapping
for larger subdivisions in comparison to divisions of four or fewer parcels);
61 Ops.Cal.Atty.Gen. 299, 300 (1978) (“Essentially, the [division of land into five or
more parcels] involves stricter requirements and more extensive procedures for approval
than [a division into four or fewer parcels]”).
10
See, e.g., Fishback v. County of Ventura (2005) 133 Cal.App.4th 896, 899-901; Pratt v.
Adams, supra, 229 Cal.App.2d 602, 603-604; 55 Ops.Cal.Atty.Gen. 414, 417-420 (1972)
(abuse of former “annual quartering” rule); 54 Ops.Cal.Atty.Gen. 213, 215-216 (1971)
(abuse of “latest adopted county tax roll” description); see also 77 Ops.Cal.Atty.Gen.
185, 185 (1994) (subdivider may not designate as an exempt “remainder” a portion of
land to be subdivided in later phase of development).
11
See 54 Ops.Cal.Atty.Gen., supra, at pp. 215-216; Curtin & Merritt, supra, § 3.3, p. 3-4.
12
Gov. Code, § 66426.
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through serial acts of subdivision with an intervening sale of subdivided parcels, such that
there is no contemporaneous ownership of the parcels to be subdivided. 13
In construing the Map Act, our fundamental task is “to determine the Legislature's
intent so as to effectuate the law’s purpose.” 14 In doing so, we are guided by standard
principles of statutory construction. “The primary and controlling consideration in the
construction of a statute is the determination of, and the giving effect to, the legislative
intent behind the statute. Where the language of the statute is clear, it is not difficult to
ascertain the legislative intent and to follow the plain meaning of the words used. The
ordinary and usual import of the language is to be adopted and harmonized with other
statutes relating to the same subject matter.” 15 However, when the statutory language is
unclear, “it is appropriate to consider the consequences that will flow from a particular
interpretation.” 16 Then, “our task is to select the construction that comports most closely
with the Legislature's apparent intent, with a view to promoting rather than defeating the
statutes’ general purpose, and to avoid a construction that would lead to unreasonable,
impractical, or arbitrary results.” 17
We begin our analysis with the text of the Map Act and note that it defines
“subdivision” as a verb: “the division, by any subdivider, of any unit or units of improved
or unimproved land, or any portion thereof, shown on the latest equalized county
assessment roll as a unit or as contiguous units, for the purpose of sale, lease, or
financing, whether immediate or future.” 18 Consistent with this syntax, the Act mandates
that “[a] tentative and final map shall be required for all subdivisions creating five or
13
This opinion is limited to evaluating the relationship between the two successive
subdivision applications for purposes of determining applicability of the Map Act; it does
not evaluate other legal requirements.
14
Ailanto Properties, Inc. v. City of Half Moon Bay (2006) 142 Cal.App.4th 572, 582,
quoting Coalition of Concerned Communities, Inc. v. City of Los Angeles (2004) 34
Cal.4th 733, 737; 77 Ops.Cal.Atty.Gen., supra, at p. 188.
15
61 Ops.Cal.Atty.Gen. supra, at p. 301, citations omitted; see also Tower Lane
Properties v. City of Los Angeles (2014) 224 Cal.App.4th 262, 268 (construction of Map
Act).
16
Witt Home Ranch, Inc. v. County of Sonoma (2008) 165 Cal.App.4th 543, 555,
citations and internal quotation marks omitted.
17
Id. at pp. 555-556.
18
Gov. Code, § 66424.
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more parcels.” 19 This statutory language makes clear that the focus of the Act is on the
actions of a subdivider, not the ownership of the subdivided parcels.
Thus, when evaluating successive subdivisions of contiguous parcels under
different ownership, the critical inquiry is whether they are the work of the same
subdivider, whether directly or indirectly. In Bright v. Board of Supervisors, the question
before the Court of Appeal was whether the subdivider, Bright, had created a
“subdivision” comprising five or more parcels by a series of lot divisions occurring over
time. 20 Bright acquired parcel “A” as his separate property in 1966. Two years later, he
and his wife acquired a contiguous parcel “B,” which they held in joint tenancy. Three
years thereafter, Bright conveyed his interest in a portion of parcel “B” to his wife as her
separate property, thereby creating parcel “C.” Two years thereafter still, Bright
proposed to divide parcel “A” into four additional parcels by a parcel map. 21 County
officials rejected the proposed quartering of parcel “A” on the ground that the four
parcels must be aggregated with Bright’s earlier creation of Parcel “B”-“C”, resulting in
five or more parcels. The trial court rejected the county’s determination on the ground
that “there was no substantial evidence as to whether or not contiguous Parcels ‘A’ and
‘B’-‘C’ were being developed together or whether or not they have common streets or
other common planning.” 22 The Court of Appeal tersely overruled: “[T]here is . . . no
requirement there must be a common plan of development.” 23 This makes sense: The
Act’s concern is unregulated land development, whether the development occurs in a
subdivider’s single act of subdivision or from the subdivider’s serial acts of subdivision. 24
Unlike the scenario in Bright, the opinion request assumes that the subdivider will
subdivide and sell the first set of parcels before acquiring ownership of the second
contiguous parcel it seeks to subdivide. But it is not relevant, in our view, that by the
second subdivision application the owners of the contiguous lots are different, or that the
19
Gov. Code, § 66426, emphasis added.
20
Bright, supra, 66 Cal.App.3d at p. 193.
21
Ibid.
22
Id. at p. 194, fn. 1.
23
Id. at p. 194.
24
Cf. 77 Ops.Cal.Atty.Gen., supra, at p. 185 (Gov. Code, § 66424.6 does not permit
exclusion of parcels as a “remainder,” for purposes of determining mapping
requirements, when developer subdivides portions of more than one parcel for the first
phase of a housing development, with intent later to subdivide the undeveloped parcels in
subsequent phases of the development).
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lots were never contemporaneously owned. The Act requires only that the lots
comprising the subdivision be shown “as contiguous units” on the latest equalized county
assessment roll. 25 On its face, the Act is concerned with regulating subdivision
development, by “any subdivider . . . for the purpose of sale, lease or financing, whether
immediate or future,” not with who owns the parcels at the time of subdivision. Notably,
since its original enactment, the Subdivision Map Act has never defined “subdivision” in
terms of the owner of the parcel being divided, but rather in terms of a “subdivider” of
parcels. 26 And the Legislature has always recognized that a subdivider may act on his or
her behalf, “for himself or for others.” 27 If contiguous units are subdivided, the statute
includes no requirement that the parcels, at the time of subdivision, are or have been
under common ownership. 28 We will not read such a requirement into the statute,
especially since doing so could undermine the evident purposes of the Act. 29
25
Gov. Code, § 66424.
26
See Stats. 1937, ch. 670, § 2(g), p. 1864; 55 Ops.Cal.Atty.Gen., supra, at p. 419
(phrase “by any subdivider” in definition of “subdivision” means definition “is framed in
terms of action by one subdivider”). When it was added to the Government Code in
1974, section 66424 omitted the phrase “by any subdivider” from the definition of
“subdivision.” (See Stats. 1974, ch. 1536, § 4, p. 3467.) We noted the omission in an
opinion (59 Ops.Cal.Atty.Gen. 493, 494-495 (1976)), and the phrase was quickly restored
the following year as an urgency measure (Stats. 1977, ch. 234, § 3, p. 1034.) Even in
the 1974 version, the Act defined a subdivider as one who divides real property into a
subdivision. (See Stats. 1974, ch. 1536, § 4, p. 3466 (Gov. Code, § 66423).)
27
Stats. 1937, ch. 670, § 2(h), p. 1865; see now Gov. Code, § 66423 (defining
“subdivider”).
28
In Bright, the subdivider proposed to quarter parcel “A,” which he owned separately;
parcel “B,” resulting from the “B”-“C” division, was owned by Bright and his wife in
joint tenancy, whereas parcel “C” from that division had been conveyed to Bright’s wife
as her separate property. (See Bright, supra, 66 Cal.App.3d at p. 193.)
29
See Hellum v. Breyer (2011) 194 Cal.App.4th 1300, 1311, quoting Realmuto v.
Gagnard (2003) 110 Cal.App.4th 193, 203 (“A court may not read into a statute
qualifications or modifications that will materially affect its operation so as to conform to
a supposed intention not expressed by the Legislature”); see also Taylor v. McKay (1975)
53 Cal.App.3d 644, 651 (same); 66 Ops.Cal.Atty.Gen. 40, 46 (1983);
63 Ops.Cal.Atty.Gen. 1, 4 (1980).
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Our conclusion here is consistent with our opinion issued over 40 years ago. 30
There, we were presented with the circumstance of a subdivider who, owning several
contiguous parcels previously created by a third party, proposed to subdivide one of those
contiguous parcels. We were asked whether the other parcels, having been validly
created by the third party, could be excluded for purposes of determining the mapping
requirements. We concluded that they could be so excluded because they had, in fact,
been subdivided by someone else, acting independently. 31 We were also asked, however,
if our hypothetical subdivider should seek to successively subdivide several of the
contiguous parcels, whether all of the parcels should be viewed collectively for purposes
of the Map Act. We concluded that all the parcels would have to be aggregated, even if
they had been sold and were under separate ownerships at the time of the subsequent
subdivision application. 32 Key to our distinction was the fact that all of the excluded
parcels in the first division had been created by a different subdivider, whereas all of the
subsequent divisions would have been accomplished by the same subdivider as
accomplished the first division. 33 We explained:
[T]he successive division of contiguous parcels by the same subdivider
must be considered together in determining the applicable standards to be
applied under the Map Act. The fact that the contiguous parcels were
created by a third party in compliance with the Map Act or other law
applicable at that time or that a part of an earlier division had been
transferred by sale or otherwise should not detract from the application of
the Map Act standards to the division of land where the purpose of the Map
Act is to secure the orderly development of land . . . , and in a significant
respect is based upon the number of parcels created. Whether the parcels
are created all at the same time or over a period of time does not detract
from the application of the Map Act . . . , and the fact that some of the
earlier parcels have been sold should not detract from the determination that
a particular number of parcels have been created overall. 34
30
61 Ops.Cal.Atty.Gen. 114 (1978).
31
Id. at p. 116; cf. 55 Ops.Cal.Atty.Gen., supra, at pp. 417-418 (successive divisions of
property by successive owners to evade mapping requirements).
32
61 Ops.Cal.Atty.Gen., supra, at p. 114 (questions 2 and 3).
33
See 61 Ops.Cal.Atty.Gen., supra, at p. 116.
34
61 Ops.Cal.Atty.Gen., supra, at p. 117, citations omitted.
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The reasoning of our prior opinion applies to the question presented here. The
purposes of the Map Act in securing orderly community development 35 would be
seriously undermined if a subdivider could avoid tentative and final mapping obligations
by the successive acquisition, quartering, and sale of contiguous parcels. The effect
would be to allow the creation of subdivisions, through phased quartering and
disposition, without adequate consideration of subdivision standards and broader
concerns for community development. That the subdivider sells off his quartered parcels
before acquiring another for further division should not avoid the Legislature’s concern
for greater scrutiny of larger developments. We have previously expressed our view,
supported by the courts, that the provisions of the Act are to be “liberally construed to
require the highest possible standards for orderly community development” 36 in order “to
prevent circumvention of its several goals and purposes.” 37
We conclude, then, that if a subdivider owns one parcel and subdivides that parcel
pursuant to a parcel map, then, after selling off all of the resulting subdivided parcels,
acquires a contiguous parcel and seeks to divide that parcel pursuant to a parcel map, the
local agency should count the previously subdivided contiguous parcels as part of the
second application for subdivision.
35
Kalway v. City of Berkeley (2007) 151 Cal.App.4th 827, 833.
36
61 Ops.Cal.Atty.Gen., supra, at p. 301, citing Bright, supra, 66 Cal.App.3d at pp. 195-
196 and Pratt v. Adams, supra, 229 Cal.App.2d at p. 606; see also Kalway v. City of
Berkeley, supra, 151 Cal.App.4th at p. 833 (“ownership” as used in Map Act entitled to
broad construction in light of “purpose and history of the act”); John Taft Corp. v.
Advisory Agency (1984) 161 Cal.App.3d 749, 755 (liberal construction); van't Rood v.
County of Santa Clara, supra, 113 Cal.App.4th at p. 564 (“‘the Subdivision Map Act
constitutes the major land use permit control vehicle for urban planning and
environmental protection,’” citation omitted); 64 Ops.Cal.Atty.Gen. 762, 766 (1981)
(provisions of Act to be broadly construed).
37
64 Ops.Cal.Atty.Gen., supra, at p. 766 (construing section 66424 to include court-
ordered partitions), quoting Freedland v. Greco (1955) 45 Cal.2d 462, 468 (“That
construction of a statute should be avoided which affords an opportunity to evade the act,
and that construction is favored which would defeat subterfuges, expediencies, or
evasions employed to continue the mischief sought to be remedied by the statute, or to
defeat compliance with its terms, or any attempt to accomplish by indirection what the
statute forbids”); 52 Ops.Cal.Atty.Gen. 79, 81 (1969) (evasion of the Act “cannot be
accomplished by subterfuge”).
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