Posted by: Patricia Salkin | November 3, 2015

CA Appeals Court Finds Eminent Domain Proceeding Did Not Trigger a Division of Land Under the Subdivision Map Act

Ronald and Shirley Nunn bought a large tract of agricultural property, which despite being recorded as a single parcel, consisted of four separated parts of unequal size.  These separations occurred when a local agency acquired through eminent domain two narrow strips of land crossing the property and intersecting each other. A road was built on one strip, and a pipeline was buried under the other.  After the Nunns abandoned an effort to subdivide the property under the parcel map provisions of the Subdivision Map Act, they asked the county to issue certificates of compliance to confirm that each of the four parts nonetheless satisfied the requirements of the Act.  The County planning staff denied the Nunns’ request for four certificates of compliance, concluding that the property’s separation as a result of the condemnation did not constitute a “subdivision” for purposes of the Act. The Nunns appealed, and the County Planning Commission reversed the staff’s decision. Save Mount Diablo (SMD) then appealed to the County Board of Supervisors, which rejected the appeal and issued the four certificates. SMD then 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, which the trial court granted.

The Nunns’ main argument on appeal was that the District’s condemnation effected a de facto division of the property into four “parcels.”  However, regardless of whether a piece of property can be characterized as a parcel, the court found it is entitled to a certificate of compliance only if it was the result of a prior division recognized by the Act. Here, a division within the meaning of the Act is not established just because parts of a property do not touch. Section 66424 of the Act stated that property “shall be considered as contiguous units, even if it is separated by roads, streets, utility easement, or railroad rights-of-way.”

Next, Nunns alternatively argued that they were entitled to certificates of compliance under the Act’s exemption for property conveyed through condemnation proceedings. This provision exempts from map requirements “land conveyed to or from a governmental agency or public entity … for rights-of-way, unless a showing is made in individual cases, upon substantial evidence, that public policy necessitates a parcel map.” This exemption did not apply, however, because since the four parts of the Nunns’ property were neither conveyed to nor from a public entity. Finally, the Nunns argued that each of the four parts of their property was entitled, at a minimum, to a conditional certificate of compliance because section 66499.35, subdivision (b) states that the local agency “shall” issue such a certificate whenever a regular certificate of compliance is denied.  However, the court again noted that no such division occurred as a result of the eminent domain proceeding affecting the Nunns’ property, except for the parcels acquired by the District.  Therefore, Section 66499.35 did not apply to the four parts of the Nunns’ property.  Because there was not a division of the four parts of the Nunns’ property within the meaning of the Act, the Nunns were not entitled to either a regular or a conditional certificate of compliance for each of those parts. Accordingly, the trial court’s holding was affirmed.

Save Mt. Diablo v. Contra Costa County, 193 Cal. Rptr. 3d 611, 625 (Cal. App. 1st Dist. 2015)

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