References to Subdivision Map Act
This Board Order refers to various sections of the Subdivision Map Act (“Map Act”; Government Code, §§ 66410-66499.58). References herein to a “Section” are references to a particular section of the Map Act unless otherwise noted. Sections discussed herein are attached for reference.
Certificates of Compliance
A certificate of compliance is a recorded document which states that the parcel of land described therein was created in compliance with the Map Act and local subdivision ordinance. Issuance of certificates of compliance is governed by Section 66499.35. A property owner may request that the County make a determination as to whether a property within its jurisdiction complies with the Map Act and local subdivision ordinances. If the County determines that the property is compliant, then a certificate of compliance must be issued pursuant to Section 66499.35(a). If the property is found to be noncompliant, then a conditional certificate of compliance must be issued pursuant to Section 66499.35(b). However, if a certificate of compliance is requested for a unit of property which was not previously created, then no certificate should be issued because such action would create a parcel in violation of the Map Act. The significance of a certificate of compliance is that once one is issued for a unit of real property, then said property is known to exist as compliant or “conditionally compliant” with the Map Act and may be sold, leased or financed.
Site/Area Description
The subject property, formerly owned by the Dutra family and commonly known as Dutra Ranch, is an approximately 585.64-acre unit of real property located within the agricultural area of Brentwood and Byron, at the intersection of Walnut Boulevard and Vasco Road, approximately 1,900 feet south of Marsh Creek Road. The property is north of the G3 (formerly Unimin) Quarry located on Camino Diablo, with a Contra Costa Water District (CCWD) transfer facility directly abutting the property in the southwest. The property is bisected in a northwest-southeast direction by Vasco Road and east-west by property containing a CCWD transfer pipeline. CCWD acquired these strips of land through a 1997 condemnation related to the Los Vaqueros Reservoir project. Because these strips crisscross, the subject property is split into four large pieces of unequal size.
The subject property is developed with a farm house, barn, and sheds. The property is zoned Agricultural Preserve District (A-4). The surrounding land is zoned Exclusive Agricultural District (A-40) to the north and east, Heavy Agricultural District (A-3) to the south and east, and A-4 to the west and east. The General Plan land use designations within the area include Agricultural Core, Agricultural Lands, Parks and Recreation, and Public and Semi-Public.
The four parcels as described by the applicant are shown on the attached map submitted by the applicant on May 17, 2011, and identified as Parcel A - 357.17 acres [Assessor’s Parcel Numbers (APN) 007-150-017, 003-010-017 (portion), 007-140-006], Parcel B - 74.16 acres [APN 003-010-017 (portion)], Parcel C - 45.82 acres [APN 003-010-016 (portion)], and Parcel D - 108.49 acres, [APN 007-010-016 (portion), 007-150-018].
Issues That Are Before the Board
The question at hand is whether or not the subject property comprises four legal lots, each of which is entitled to a certificate of compliance. As illustrated on attached maps, the subject property is broken into four pieces by the crisscrossing strips of land condemned by CCWD. The applicant contends that four legal lots exist. The County Zoning Administrator determined that one lot exists. On appeal of the Zoning Administrator’s decision, the County Planning Commission (“Commission”) determined that four legal lots exist. The attached letters from Mr. Michael Patrick Durkee, Esq. (representing the applicant), and Ms. Winter King, Esq. (representing the appellant), provide arguments for and against the four-lot determination, respectively.
While the number of legal parcels that exist is the main issue here, the Board's decision may have precedent-setting implications. There is no practical way to know how many properties throughout the County have been split by a government condemnation similar to the one that occurred in this case, though six certificate of compliance applications concerning this issue were recently pending with the Department of Conservation and Development. If the Board determines that four lots exist, then this could lead to an undeterminable number of new lots materializing without the benefit the subdivision process, which includes public participation and environmental review, and provides the County with the ability to address pubic concerns and require installation of necessary infrastructure through imposition of conditions of approval.
Project Timeline
• May 17, 2011, an application for a certificate of compliance (County File #ZC11-798) was filed for the four pieces of land. Staff informed the applicant that the appropriate filing procedure was to file a separate certificate of compliance application for each unit of property for which they were requesting a certificate of compliance. On June 13, 2011, three additional applications were filed (County File #ZC11-799, ZC11-800, and ZC11-801).
• July 28, 2011, after review of the applications, staff determined that four certificates of compliance could not be issued because the documentation submitted did not demonstrate that the lots were separately created in compliance with the Map Act through separate conveyances or the filing of a subdivision map.
• August 9, 2011, a letter was received from the property owners’ attorney, Mr. Sanford Skaggs, responding to staff’s July 28, 2011, letter. The letter from Mr. Skaggs disagreed with staff’s determination, and requested a reconsideration of the determination based on Mr. Skaggs’s interpretation and references to the Map Act.
• November 30, 2011, a memo was received from the owners’ attorney, Mr. Durkee, with additional responses to staff’s determination of July 28, 2011, and additional legal analysis and discussion.
• April 19, 2012, a letter of determination from the County Zoning Administrator was mailed to the applicant. For various reasons enumerated in the letter, the Zoning Administrator determined that only one certificate of compliance could be issued. The Zoning Administrator’s letter is attached.
• April 25, 2012, the owners’ representative, Ms. Lisa Borba, filed an appeal of the April 19, 2012, decision of the Zoning Administrator.
• July 24, 2012, the Commission heard the appeal of the Zoning Administrator’s decision to issue one certificate of compliance for all of the subject property. The Commission’s meeting and action is discussed in more detail below.
• August 1, 2012, Save Mount Diablo (SMD) filed an appeal of the Commission’s decision.
• November 28, 2012, supplement to original appeal letter was submitted by Ms. King.
• December 11, 2012, supplemental letter was submitted by Mr. Durkee.
County Planning Commission Hearing and Action
On July 24, 2012, the Commission conducted a hearing on the four applications. Staff’s report to the Commission, which is attached, contains all of the points made by staff during their presentation. Public testimony was received from Mr. Durkee, Mr. Ron Nunn (the property owner), and Mr. Bob Nunn, who all spoke in support of granting four certificates of compliance, and Mr. Seth Adams of SMD who objected to issuance of four certificates. Mr. Durkee was the primary speaker on behalf of the applicants. Mr. Durkee’s presentation consisted reiterating and explaining points made in his November 30, 2011, memo and rebuttal of staff’s report and presentation to the Commission.
The Commission asked numerous questions of Mr. Durkee regarding the applicability of various statutes, court decisions, and Attorney General Opinions. Commissioner Clark stated that Section 66428(a)(2), the statute upon which the applicant’s position substantially relies, does not actually say that conveyance of a strip of land to a governmental agency, which physically splits a parcel into two or more parcels, constitutes a division as defined in the Map Act. The Commission asked Mr. Durkee for supporting authority. Mr. Durkee indicated that through reasonable thinking and by deduction, Section 66428(a)(2) and previously cited Attorney General Opinions support the applicant’s position, but conceded that no published case exists which supports the argument. After deliberation, the Commission determined that it would be appropriate to issue four certificates of compliance. The Commission approved the applicant’s request by a vote of 5-0 with 1 abstention.
Appeal of the County Planning Commission’s Decision
Many of the appeal points stated in the letters received subsequent to the Commission’s decision are discussed in staff’s report to the Commission, and therefore are not repeated here. Instead, new points of appeal and new rebuttal points are addressed in this Board Order.
The following is a summary of the points of appeal from the letter submitted August 1, 2012, by SMD, and the supplemental letter received on November 28, 2012:
Appeal Point 1: The Commission ignored points made by staff in its report. SMD believes that staff’s recommendation is based on thorough review of the facts, legal analysis, Attorney General Opinions, case law, and statutes.
Staff Response 1: In addition to considering staff’s report, the Commission considered testimony received during the public hearing. After discussion and consideration of all information received, written and verbal, the Commission agreed with the applicant’s position.
Appeal Point 2: The applicant is attempting to bypass the Map Act and the California Environmental Quality Act (CEQA). The automatic division of land circumvents the opportunity for individuals, public agencies, or non-profit organizations to request that an agency analyze potential environmental impacts of the project as required by CEQA.
Staff Response 2: It would be inappropriate for staff to comment on the applicant’s intentions. Subdivisions are subject to CEQA review whereas certificates of compliance are not, so the appellant is correct in stating that division of land without the normal subdivision process would deprive the public and agencies of their regular opportunity to participate in the environmental review.
Appeal Point 3: The Commission’s decision would set a precedent in the County for Public Works and infrastructure projects which would result in significant additional costs and burdens to public agencies by requiring them to go through the tentative and final map process, and subject public infrastructure projects to CEQA which would be burdensome. Public agencies are not “Subdividers.”
Appeal Point 4: The intent of the law needs to be considered when evaluating this application. Public agencies are exempt from the rules established for subdividers because the intent is that these public agencies are not subdividers.
Staff Responses 3 and 4: The Map Act and CEQA are state laws. The Commission's decision will not alter public agency obligations under these statutes.
Appeal Point 5: The Commission’s decision to issue unconditional certificates of compliance for the four parcels violated the terms of the County’s Williamson Act Contract (“Contract”) for the property, and will quadruple the amount of development permitted on the property by right.
Staff Response 5: This appeal point is partially correct. The Commission’s action did not violate the terms of the existing Contract. However, a condition of the Contract states that if the land under the Contract is divided, the property owner will be required to file a new Contract identical to the original on each unit of land created by the division. As a residence is a use allowed by right under the Contract, filing the same Contract on each of the four lots will increase the potential residential development.
Appeal Point 6: The County has not issued development permits for any of the four units of real property for which the applicants seek certificates of compliance, and the applicant’s suggestion that the County has issued a development permit for “Parcel A” is unfounded.
Staff Response 6: Staff agrees with this appeal point, though the issue is irrelevant. The applicant contends that the County Environmental Health Division’s issuance of two separate well permits for Assessor’s Parcel Numbers (APNs) 007-150-017 and 007-140-006 legalized these parcels. Both permits were issued for wells to support the existing agricultural use of the property. A copy of one permit is included in the appellant’s November 28, 2012, letter as Exhibit 11. The applicant did not submit copies of these permits for review, and issuance of these permits was first mentioned by the applicant’s attorney at the County Planning Commission hearing.
APNs are issued for purpose of assessing property taxes and by themselves have no significance insofar as indicating the legality of a lot or parcel. One legal parcel may have multiple APNs and one APN may contain multiple parcels. The two APNs cited are located on Parcel A, as described by the applicant. Issuance of two well permits on Parcel A does not split Parcel A into two pieces simply because it has multiple APNs. Furthermore, the County maintains that the subject property, described by the applicant as Parcels A, B, C, and D, is one legal lot. The owners are entitled to issuance of well permits on a legal, agricultural parcel.
The following is a summary of additional rebuttal points made by Mr. Durkee in a letter received December 11, 2012.
Rebuttal Point 1: The recognition of lots does not lead to development. Instead, General Plan designations and zoning districts lead to development.
Staff Response 1: Issuance of certificates of compliance does not imply that development is approved for the parcels that are the subjects of the certificates. As previously stated, a certificate of compliance is a recorded document which recognizes a parcel of land as compliant or "conditionally compliant" with the Map Act and local subdivision ordinance. The subject property would remain subject to the regulations set forth by the County General Plan and the applicable zoning district. In this circumstance, development is also subject to the terms of the Williamson Act Contract for the property.
Rebuttal Point 2: Save Mount Diablo's appeal must be denied on the grounds that under Subdivision Map Act Sections 66452.5 and 66452.5(c), and County Code Sections 26-2.2402, Section 26-2.2406, and Section 26-2.2412, the appeal was not heard within the prescribed statutory time frame. The County Planning Commission’s decision is now final.
Staff Response 2: County Code Section 26-2.2402 is a general statement regarding appeals. The appeal by Save Mount Diablo was filed in writing within 10 calendar days as prescribed by County Code Section 26-2.2406. County Code Section 26-2.2412 pertains to tentative maps, and thus in not applicable here.
The applicant specifically cites Map Act Section 66452.5(c) for the proposition that the Board cannot hear the appeal because the time period prescribed by statute to hear the appeal has lapsed. This assertion is incorrect. There is no law barring the Board from hearing this appeal and no law deeming the Commission's decision to be the last word on this matter. First, the statute in question applies to appeals with respect to tentative maps, not certificates of compliance. Second, while the statute does say that decisions that are appealed to an appeal board are "deemed affirmed" if the appeal board fails to act within the prescribed period of time, it also makes clear that those decisions can then be appealed to the legislative body - i.e., the Board. Although there are time limits for the Board to hear such appeals, the failure of the Board to comply with those time limits would mean that the tentative map that is the subject of the appeal would be deemed approved. No tentative map is proposed here and there is no such provision applicable to requests for certificates of compliance.
Rebuttal Point 3: The issuance of a certificate of compliance is mandatory under the Subdivision Map Act, as set forth in Government Code § 66499.35.
Staff Response 3: This assertion is incorrect. The appellate court decision in Abernathy Valley, Inc. v. County of Solano addressed the question of whether or not Solano County was legally obligated to issue a certificate of compliance or conditional certificate of compliance. The appellate court ruling was that in circumstances where the certificate of compliance would, by itself, serve as the subdividing action (as compared to a certificate following the subdivision or conveyance of a parcel), the local agency may withhold the certificate, notwithstanding the apparent mandatory nature of the statutory language.
The Zoning Administrator’s decision to withhold the issuance of four certificates of compliance is consistent with the appellate court decision because the Zoning Administrator determined that issuance of four certificates would be the subdividing action, as the lots were never established through subdivision or conveyance. The Zoning Administrator’s decision letter indicates that one certificate will be issued if so desired by the applicant. Thus, the Zoning Administrator has not withheld issuance of a certificate of compliance – the Zoning Administrator has denied issuance of the number of certificates the applicant wishes to obtain.
Effect of Upholding the County Planning Commission’s Decision
Should the Board of Supervisors uphold the Commission’s decision and grant the applicant’s request for four unconditional certificates of compliance, then the property owners will be able to sell, lease or finance each of the four pieces of land without completing the subdivision process and its associated environmental review. This would amount to a de facto subdivision that would allow for the development of four single-family residences and four residential second units, upon completion of the required modification to the existing Williamson Act Contract, where one residence and one second unit could currently be constructed. Furthermore, a vote to uphold the Commission’s decision could set precedent for owners of other properties involved in similar condemnation actions to apply for certificates of compliance and achieve de facto subdivisions.
Effect of Reversing the County Planning Commission’s Decision
Should the Board of Supervisors reverse the Commission’s decision and uphold the Zoning Administrator’s decision, then the applicant may request that the Zoning Administrator issue one certificate of compliance for the entire property as one parcel. The applicant could continue with processing their pending application for a minor subdivision to establish four parcels.
Reasoning for Staff’s Recommendation to Overturn the County Planning Commission’s Decision
Staff recommends that the Board uphold the appeal filed by Save Mount Diablo and overturn the County Planning Commission’s decision for the following reasons:
1. Pursuant to the Map Act, land in California may be divided either by recording a final or parcel map or through conveyance. No map has ever been recorded on the subject property. The applicant relies on a parcel map exception applicable to government agencies (Section 66428(a)(2). However, that section refers to conveyances to or from a governmental agency or public entity. The subject property has never been conveyed to or from a governmental agency or public entity. A portion of the original parcel was conveyed as a result of the CCWD condemnations, but the four remaining pieces have been under common private ownership since the condemnations occurred and have never been conveyed separately from each other – they have always been conveyed from one private owner to the next as one piece.
2. The applicant has not provided a statute, Attorney General Opinion, or example of case law which actually states that the remnant pieces of a condemnation action are separate, legal parcels created in compliance with the Map Act. Nothing in the Map Act states this. The statute relied on by the applicant, Section 66428(a)(2), is not applicable as explained above, and the Attorney General Opinions submitted by the applicant deal with instances that all are materially different in some way from the present matter. The applicant’s position relies on inferences and interpretations, not on the letter of the law.
3. Contra Costa Water District was not a “subdivider” as defined by the Map Act. For this reason, it was not subject to either mapping requirements or exemptions from those requirements, including Section 66428.
4. A certificate of compliance is issued for parcels legally created under the Map Act and local subdivision ordinance. The four pieces of property were never subdivided or conveyed separately, so they were not created legally as separate parcels under the Map Act. Therefore, they do not qualify for individual certificates of compliance.
5. The applicant reasons that if a condemnation is legal, then so is its consequence. Staff agrees in concept, but disagrees with how the applicant applies this concept to the present case. The applicant argues that the legal condemnation created six legal parcels: the pipeline parcel owned by CCWD, the Vasco Road right-of-way now owned by Contra Costa County, and four private parcels. In actuality, the legal condemnation created the legal pipeline parcel and the legal Vasco Road right-of-way, and left the legal remnants of the private parcel from which the condemned land was taken.
6. The four pieces of property are physically separated by rights-of-way owned in fee by governmental agencies, but they are still connected to one another via easements and access rights in favor of the property owners that were granted as part of the condemnation. Furthermore, the four pieces are all agricultural in nature. There is clearly a unity of use - the four pieces function as one parcel. In the absence of any other controlling legal authority as to the status of these remnants, these facts support the conclusion that they remain one parcel.
Speakers: Winter King of Shute, Mihaly & Weinberger LLP on behalf of Save Mount Diablo (appellant); Michael Durkee, Wactor & Wick LLP on behalf of Ron Nunn (owner).
DENIED the appeal filed by Save Mount Diablo;
UPHELD the decision of the County Planning Commission, as stated in its Resolution No. 10-2012, confirming the existence of four legal parcels created in compliance with the Subdivision Map Act and local subdivision ordinance;
DIRECTED the Department of Conservation and Development, Community Development Division to issue four certificates of compliance, one for each of the four pieces of real property described in the four applications for certificates of compliance;
REQUIRED the property owners to execute a Williamson Act Contract on each of the four pieces of real property;
DIRECTED that, as currently is in effect, the new Williamson Act Contracts allow for only one single-family residence on the whole of the subject property.