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On February 22, 2001, Senator Byron Sher introduced Senate Bill 497 to amend sections of the Subdivision Map Act (Gov't Code §§ 66410-66499.37). As originally introduced, SB 497 only addressed energy conservation and bicycle path dedication issues. On September 4, 2001, following its third reading on the Assembly floor, SB 497 was substantially amended to include the provisions discussed below. The authors understand that these amendments were added in response to the perceived threat that the Hearst Corporation was using the Map Act to its advantage on the property below the Hearst Castle. The Bill then whisked through the Senate and on September 20, 2001, the newly-amended version SB 497 was enrolled and is now before Governor Davis for his signature.

Briefly, the Map Act is the primary regulatory control governing the division of property in California. The Map Act requires a subdivider to file a map for any division of improved or unimproved land for the purpose of present or future sale, lease, or financing. (Gov't Code § 66424.) One of the most important exemptions to the Map Act's requirements is set forth in Gov't Code § 66412(d), which makes the Map Act inapplicable to Lot Line Adjustments between "two or more existing adjacent parcels . . . where a greater number of parcels than originally existed is not thereby created, provided the lot line adjustment is approved by the local agency." This local agency review and approval is limited to a determination as to whether the adjusted lots conform to local zoning and building ordinances. (Id.)

The Map Act also requires a local agency to issue a Certificate of Compliance or Conditional Certificate of Compliance if it determines that real property does not comply with the Map Act or local ordinances enacted pursuant to the Map Act. (Gov't Code § 66499.35.)

The authors have no stake in the Hearst Corporation's fight with the public and private agencies concerning the Heart Castle property. As land use practitioners who regularly deal with the Map Act, however, we believe SB 497 is simply bad law. As discussed below, this Bill unnecessarily upsets the State's long-established regulatory scheme in reaction to a perceived but inaccurate belief that public agencies are powerless to regulate development if a Lot Line Adjustment or Certificate of Compliance is involved.

Whether open, undeveloped land is comprised of one big parcel or a thousand little parcels is both indiscernible to the eye and unimportant to the populous. The real issue is the potential development of those parcels once they have been adjusted to conform to local building and zoning requirements.

The sponsors of SB 497 exhibit this fear of development. According to the Legislative Analysis of SB 497, the purpose behind the above revisions to the Map Act is to prevent "speculators" from "exploiting [the Lot Line Adjustment] loophole in the Map Act to drive up the cost of property and avoid the planning and infrastructure requirements that all other developers must deal with." The Analysis further warns that as "a result of this end-run around local land use authority, local governments lost control of their most jealously guarded power - land use decisions - to real estate speculators."

The local governments and environmental groups that have expressed their support for SB 497 understandably want to protect the California coast from unregulated development. The authors agree that local agencies can and should control development within their jurisdictions. What the proponents of SB 497 fail to understand is that local agencies already possess the ability to prevent such development through their general plans and applicable zoning regulations. The redundant powers conferred to local agencies through SB 497 are therefore unnecessary, and have the negative effect of precluding landowners from making adjusting their lots for purposes that have nothing to do with development.

California law already requires that development entitlements, including building permits, must be consistent with the local general plan and any applicable specific plan. Through its constitutional powers (Cal. Const., Art XI, § 7), a local city council or board of supervisors (in their general plan, applicable specific plan, zoning, etc.) already controls/precludes the ability of any adjusted lot to develop (all development in California involves at the very least, the issuance of a building permit, and all building permits must be consistent with the local general plan).

In comparison, the Map Act simply provides a means to create and adjust lots -- it does not, and legally cannot, establish or dictate development policy. The proponents of SB 497 fundamentally misunderstand this distinction. While the Map Act provides a means to create, adjust and recognize lots, only the local General Plan, zoning and other local land use regulations determine use and development. The Map Act's current treatment of Lot Line Adjustments understands this dichotomy. It recognizes and protects the "lot-creation" decisions of our "grandfathers" while protecting a local government's interests by not guaranteeing the adjusted lots any right to develop. The existing law provides a simple mechanism to adjust parcels already in existence to allow for their sale, lease or financing, or their ability to be passed on from parent to child.

Thus, under current law, allowing a property owner to adjust lines between existing parcels does not permit the landowner to "avoid the planning and infrastructure requirements" of the local agency as claimed by Bill sponsors. According to recent newspaper articles, one of the purposes of SB 497 is to suppress property values by preventing Lot Line Adjustments or Certificates of Compliance, thereby making the purchase of that property by the government or conservation groups more attainable. However, such pre-purchase or pre-condemnation activity to lower the valuation of property is forbidden under California law. (Klopping v. City of Whitter (1972) 8 Cal.3d 39.)

The "scare-mongering" arguments raised by SB 497 supporters are eerily similar to those raised by the City in San Dieguito Partnership v. City of San Diego (1992) 7 Cal.App.4th 748, 760. In that case, the City argued that the Map Act's statutory exemptions for Lot Line Adjustments would result in unregulated and unwanted development. The court dismissed the City's argument and held:

Thus, the development of a lot will not go uncontrolled. It will always be subject to the local General Plan, zoning and other local land use and development regulations. The attempt through SB 497 to expand the bases for local government review and approval of Lot Line Adjustments will transform them from ministerial acts needed to allow the adjustment of already-approved lot lines, into discretionary acts, thereby complicating California's land use scheme unnecessarily. In short, what was once a simple procedure will become an expensive, time-consuming, and likely unsuccessful process.

Furthermore, there is no justification for restricting Lot Line Adjustments to four or fewer parcels. As discussed above, Lot Line Adjustments do not lead to unrestricted development. Yet, the effect of restricting Lot Line Adjustments to four or fewer parcels may have devastating effects upon a variety of California landowners and businesses that bear no relationship to the bogeyman "speculators." For example, an owner of a recently-approved and existing business park will be precluded from adjusting five or more existing lot lines to allow for a new employer/user who may need a lot size different that the owners existing inventory of lots, thereby restricting the owner's ability to adapt to market conditions or obtain financing, or to meet the needs of prospective business tenants. Similarly, the proposed amendments would prevent a winemaker from adjusting the lot lines of its vineyard to obtain financing to combat the latest threat to its harvest, or to sell that land to his neighbor. Likewise, the small residential developer or group of homeowners who are willing to reduce the size of already approved development lots to protect the environment or to reduce traffic impacts, etc. would find little incentive to do so if that concession involved the time consuming, expensive and potentially unsuccessful approach set forth in SB 497.

As to Certificates of Compliance, SB 497 removes local discretion. Under the current Map Act, a property owner may request the local agency to determine whether the real property complies with the Map Act and local ordinances. (Gov't Code § 66499.35(a).) If the local agency determines that it does, the agency records a Certificate of Compliance. If the local agency determines that the real property does not comply, it issues a Certificate of Compliance or conditional Certificate of Compliance. (Gov't Code § 66499.35(b).) SB 497 eliminates the provision for issuance of a Certificate of Compliance and requires the issuance of a conditional Certificate of Compliance if the local agency determines that the real property does not comply with the Map Act or local ordinance enacted pursuant to the Map Act. In other words, the revision prevents a local agency from granting an unconditional Certificate of Compliance for real property that is not in compliance with the Map Act.

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