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Abernathy Valley, Inc. v. County of Solano

April 17, 2009


(Solano County Super. Ct. No. FCS028581) Trial Judge Honorable Paul L. Beeman.

The opinion of the court was delivered by: Stevens, J.*fn10


Abernathy Valley, Inc. is the current owner of land that is shown on a subdivision map recorded in 1909 pursuant to a 1907 statewide subdivision map law. Abernathy asked the County of Solano to record a certificate of compliance with the Subdivision Map Act, Government Code section 66410 et seq., for one lot on the property. The county denied the application and Abernathy petitioned for a writ of mandate to compel the county to issue the certificate. The trial court granted the writ, ruling that the lot was grandfathered under Government Code section 66499.30, subdivision (d). We consider whether parcels depicted on the 1909 map are entitled to legal recognition under the Subdivision Map Act‟s grandfather clause. We reverse.


In 1909, the "Wm. Pierce Subdivision No. 1" map (Pierce Map) was filed with the Solano County Recorder. The map depicted a parcel of about 250 acres of land subdivided into 25 lots of about 10 acres each, with each lot identified by number. In a deed recorded in 2002, Abernathy Valley, Inc. (Abernathy) acquired lots 9 through 16 and lots 19 through 24 (which collectively comprised a single contiguous area of land), with the exception of parts of lots 20 and 21 that had previously been conveyed.

Abernathy applied for a certificate of compliance in accordance with Government Code section 66499.35for "Lot 12 as shown on the [Pierce Map]" (Lot 12) on August 27, 2003.*fn1 The Office of County Counsel, on behalf of the Solano County Department of Environmental Management (Department), informed Abernathy by letter that the application could not be granted. According to County Counsel, the Pierce Map did not fully comply with the laws in effect in 1909 so as to qualify for the grandfather provision of section 66499.30, subdivision (d),*fn2 and Abernathy had not produced evidence that Lot 12 had ever been separately conveyed. The Department referred the application to the Planning Commission since it could not determine that the lot was clearly in compliance with subdivision map regulations. In March 2006, the Planning Commission voted to issue a certificate of compliance. The Solano County Board of Supervisors (Board) reviewed the commission‟s decision de novo and voted to deny the certificate, instructing county staff "to only approve those maps filed after the 1929 Map Act."

Abernathy and Raymond Ferrari, a shareholder of Abernathy, (hereafter collectively, Abernathy) filed a petition for writ of mandate seeking the issuance of an unconditional certificate of compliance. (Code Civ. Proc., § 1094.5.) In granting the writ, the trial court concluded the Pierce Map was grandfathered under the Subdivision Map Act since it complied with the 1907 subdivision map law in effect at the time it was filed and recorded and the 1907 law "regulat[ed] the design and improvement of subdivisions" within the meaning of the grandfather provision (§ 66499.30, subd. (d)).


"[A] local agency‟s decision to deny certificates of compliance is reviewable by petition for writ of administrative mandate. [Citation.] The question for the trial court and for us on appeal is the same: whether the local agency‟s decision is supported by substantial evidence. [Citation.] The burden is on appellant to show there is no substantial evidence to support the decision. [Citation.]" (Fishback v. County of Ventura (2005) 133 Cal.App.4th 896, 901-902 (Fishback).) However, here as in Fishback, "there is little or no dispute about the evidence. Instead, the focus of the dispute is on the meaning of statutes. Statutory construction is a question of law which requires the exercise of our independent judgment." (Id. at p. 902.)

We first address the issue of whether the parcels depicted on the Pierce Map are protected by the grandfather provision of the Subdivision Map Act. Next, we will address Abernathy‟s argument that applying the current Act to those parcels would be an impermissible retrospective application of law. Then we will consider Abernathy‟s argument that the County did not have the power to deny its application for a certificate of compliance, but had to choose one of only two statutory options: granting an unconditional certificate of compliance or granting a conditional certificate of compliance.

I. Grandfather Provision

The regulation of real property subdivision and development in California has evolved significantly over the last 150 years. In the late 19th Century, the California Supreme Court affirmed the practice of relying on external documents, including subdivision maps, to provide property descriptions in deeds and other instruments of conveyance. (De Sepulveda v. Baugh (1887) 74 Cal. 468, 473-474.) In 1893, the state Legislature adopted the first statewide act designed to regulate subdivision map drafting to ensure the maps‟ accuracy and completeness. (Stats. 1893, ch. LXXX, pp. 96-97.) The act was amended in 1901 to somewhat tighten the drafting requirements and to give local governments the opportunity to accept or reject property that was shown on a subdivision map as dedicated to public use. (Stats. 1901, ch. CXXIV, § 1, pp. 288-289.) In 1907, the drafting standards for the maps were again strengthened. (Stats. 1907, ch. 231, pp. 290-292.) This was the state of the law when the Pierce Map was recorded.

Beginning in 1913 and continuing through 1943, the Legislature increasingly authorized local governments to exert substantive control over the division of property, rather than simply regulating the content and accuracy of subdivision maps. Legislation enacted in 1913 authorized local governments to withhold approval of maps unless public highways shown on the maps conformed as nearly as practicable to adjoining streets and highways. (Stats. 1913, ch. 306, § 4, p. 570.) Additional substantive review requirements were added in 1919 and 1921. (Stats. 1919, ch. 349, § 1, pp. 725-726 [requiring assessor and surveyor or engineer to assess residential or commercial value of lots and report to the governing body]; Stats. 1921, ch. 592, § 1, p. 1003 [if natural waterway crossed map, allowing governing body to condition approval on dedication of easement or conveyance of right of way for storm drainage purposes].) Meanwhile, in 1915, the Legislature enacted the first legislation authorizing city planning commissions (Stats. 1915, ch. 428, § 1, p. 709) and amended the subdivision map act to require subdivision maps to be referred to planning commissions before approval where the local jurisdiction had established a commission (Stats. 1915, ch. 756, § 2, p. 1513). In 1917, the Legislature authorized cities to adopt zoning ordinances. (Stats. 1917, ch. 734, p. 1419.) Ten years later, the Legislature adopted the first modern planning law, which expressly authorized planning commissions to regulate subdivisions. (Stats. 1927, ch. 874, § 15, p. 1905.) In 1929, the planning law was updated (Stats. 1929, ch. 838, p. 1805) and the Legislature adopted the first modern subdivision law (Stats. 1929, ch. 837, pp.1790-1791). The subdivision law was further updated in 1937, 1943 and thereafter. (See, e.g., Stats. 1937, ch. 670, p. 1863; Stats. 1943, ch. 128, p. 865.)

The current version of the law is the Subdivision Map Act, section 66410 et seq. (the Act). Under the Act, subdivisions ordinarily "may be lawfully accomplished only by obtaining local approval and recordation of a tentative and final map pursuant to section 66426, when five or more parcels are involved, or a parcel map pursuant to section 66428 when four or fewer parcels are involved. [Citation.] A local agency will approve a tentative and final map or a parcel map only after extensive review of the proposed subdivision and consideration of such matters as the property‟s suitability for development, the adequacy of roads, sewer, drainage, and other services, the preservation of agricultural lands and sensitive natural resources, and dedication issues. (See, e.g., §§ 66451-66451.7, 66452-66452.13, 66453-66472.1, 66473-66474.10, 66475-66478.)" (Gardner v. County of Sonoma (2003) 29 Cal.4th 990, 997 (Gardner).) The Act prohibits ...

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