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Subdivision by Condemnation?

Does a condemnation proceeding resulting in the physical separation of property into separate parts accomplish a “division” of property within the meaning of California’s Subdivision Map Act?

A recent decision by the Court of Appeal (First District in San Francisco) — Save Mount Diablo v. Contra Costa County — addresses the issue.

In short, the answer is “no.”

The property

A married couple (the Nunns) bought a large, rectangular tract of agricultural property in Contra Costa County, California.  The tract was recorded as a single parcel, but it actually consisted of four separate physical parts as a result of an eminent domain proceeding years earlier.

In that eminent domain proceeding, the Contra Costa County Water District acquired various properties in conjunction with a dam construction project, including two narrow strips of land crossing the property at issue and intersecting each other.  (A road was built on one strip, and a pipeline was buried under the other strip.)  The prior owners of the property were awarded $964,000 in compensation for the taking.

When the Nunns purchased the property, the deed described it as a single parcel, defined by metes and bounds, with the District-owned strips of land excluded.  Due to the exclusions, the property consisted of four parts, separated from each other by the narrow strips owned by the District.  The Nunns still had ready access between the parts.

At the time of the court proceedings, the property was partially planted with wine grapes and was subject to a Williamson Act contract restricting the property to agricultural use.

The request for a Subdivision Map Act certificate of compliance

Shortly after buying the property, the Nunns applied for a parcel map subdividing the property under the Subdivision Map Act into four lots and one remainder parcel.  However, after a nonprofit group (Save Mount Diablo) raised a number of objections to the application based on environmental concerns over new development, the Nunns abandoned their application.

Instead, they asked the County to issue a certificate of compliance for each of the property’s four parts under section 66499.35, a separate part of the Subdivision Map Act.  They argued they were entitled to a certificate for each part because the District’s condemnation had the effect of subdividing the property.

County planning staff denied the Nunns’ request for the four certificates of compliance, concluding that the property’s separation as a result of the condemnation did not constitute a “subdivision” under the Subdivision Map Act.  The Nunns appealed, and the County planning commission reversed the staff’s decision.  Save Mount Diablo appealed to the County board of supervisors, which rejected the appeal and issued the four certificates.

The trial court proceedings

Save Mount Diablo filed a petition for writ of mandate against the County and board of supervisors, seeking an order requiring the County to set aside the certificates.

The trial court granted the petition, concluding that no authority supported the theory that the condemnation could effect a subdivision of property within the meaning of the Subdivision Map Act.

The Nunns appealed.

The Court of Appeal’s opinion

The Court of Appeal affirmed the trial court’s decision.

The Court explained that the Subdivision Map Act legitimizes property divisions under processes that are both forward looking (by final map or parcel map) or backward looking (by certificate of compliance).  A certificate of compliance is properly issued when no map has been recorded but a statutory exemption from the map requirements applies.

The Act also provides for a conditional certificate of compliance, which applies when no map has been recorded and no statutory exemption applies, such as where a part of a larger parcel was conveyed illegally.  Under a conditional certificate, the local agency can impose conditions that would have been applicable to the division of the property at the time the applicant acquired its interests in the property, and those conditions must be met before development can proceed.

The Court of Appeal rejected the Nunns’ various arguments that they were entitled to a certificate of compliance or a conditional certificate of compliance.

First, the Court concluded that the “de facto division” of the property as a result of the prior condemnation was not a “division” under the Subdivision Map Act.  Just because parts of a property do not touch — e.g., because of roads, railroad tracks, or natural boundaries — does not mean that there has been a “division” recognized by the Subdivision Map Act.

Second, the Court held that the “condemnation exemption” to the Subdivision Map Act was inapplicable.  That exemption applies only to land conveyed to or from a public agency for rights-of-way.  Here, only the two strips of land were conveyed, not the remaining land owned by the Nunns.  The Court observed: “Condemnation proceedings frequently reshape the boundaries of the remaining property, but nothing in the Act suggests that the Legislature intended to exempt all such property from the map requirements. … There is no reason to believe that property reshaped by condemnation proceedings necessarily satisfies state and local land use laws.”

Third, the Court rejected the Nunns’ argument that there had been a “division by conveyance” under the Subdivision Map Act.  The Act recognizes that sometimes property is conveyed illegally — i.e., without a recorded map or applicable exemption — and in those cases a conditional certificate of compliance is warranted.  But here, the four parts of the Nunns’ property were not conveyed illegally.  “The only parcels conveyed at all as a result of the condemnation proceedings were those taken by the District.  The remainder of the property was untouched.”

Finally, the Court concluded that the County was not required to issue conditional certificates of compliance to the four parts of the Nunns’ property.  Issuance of such certificates would be required under the Subdivision Map Act only if there had been a “division” of the property, whether legal or illegal.  Here, the Court concluded that the condemnation did not effect a “division” under the Act at all.

Lesson

A condemnation effectuating the physical separation of property does not accomplish a “division” of property under the Subdivision Map Act.  And without a “division” of property, no certificates of compliance can issue.

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