Trial Court Upholds Napa County's Allowance of Multiple (Sequential) Lot Line Adjustments and Allows Them to be Treated as "Ministerial" Under CEQA
On November 12, the Napa County Superior Court ruled in favor of
CLSA's position in a highly publicized Subdivision Map Act case that will have statewide ramifications. The court ruled that California counties and cities are authorized to allow multiple (sequential) lot line adjustment applications concerning the same property over time, as long as each particular approval involves no more than four (4) adjoining parcels. The court also ruled that cities and counties can characterize lot line adjustment approvals as "ministerial" under CEQA.
The authors of this article submitted an amicus curiae ("friend of the court") brief in the case on behalf of CLSA and in support of Napa County and the landowners who received the multiple Lot Line Adjustments under a "ministerial" CEQA exemption. The Courts allow amicus curiae briefs when they are submitted by experts in the subject matter of the lawsuit who can help the court better understanding the legal issues. This article sets forth a condensed version of the arguments the authors and CLSA presented to the court in the amicus curiae brief. We hope that a good understanding of these important issues will help surveyors in their work with Lot Line Adjustments and the Subdivision Map Act generally.
I. Napa County Was Authorized To Allow Sequential Lot Line Adjustments
A. Napa County's Authority To Make Land Use Decisions Derives from Its Police Power, Not from Statute
A county's power to control its own land use decisions derives from its inherent police power and not from the delegation of authority by the state. The legal authority for a county ("county" references include cities unless otherwise indicated) to make and enforce land use regulations within its jurisdiction (its police power) derives from Article 11, § 7 of the California Constitution: "A county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws [statute]." (Emphasis added.) As stated by the California Supreme Court:
We have recognized that a city's or county's power to control its own land use decisions derives from this inherent police power, not from the delegation of authority by the state.
In other words, a county need not find the express grant of authority in California's land use statutes, such as the Planning and Zoning Law or the Subdivision Map Act, to act locally. Instead such power inherently exists within the police power bestowed upon it by the California Constitution.
In the case of Napa County and Lot Line Adjustments, the County may, pursuant to its inherent police power, tailor its local Lot Line Adjustment regulations and decisions in the manner it decides best reflects the needs of its community, provided that exercise does not conflict with the Subdivision Map Act. As shown below, allowing sequential Lot Line Adjustments and determining such Adjustments to be ministerial acts do not conflict with the Subdivision Map Act.
B. The Planning and Zoning Law, not the Subdivision Map Act, Controls "Use."
The Planning and Zoning Law is distinct and different in its jurisdictional scope than the Subdivision Map Act, and that the Planning and Zoning Law, not the Map Act, controls "use." The petitioner argued that a parade of land use "horribles" such as "McMansions" and rampant development would result if the trial court allowed sequential Lot Line Adjustments. But the petitioner's argument failed to recognize and understand that neither the Subdivision Map Act (including its Lot Line Adjustment provisions) nor a local Lot Line Adjustment regulation or decision can legally allow or in any way affect what uses, densities and/or intensities of development (collectively, "uses") are allowed or disallowed on any particular piece of property in Napa County. Instead, use is a product of County's police power exercise, conducted within the framework of the Planning and Zoning Law, not the Subdivision Map Act.
The local general plan is "located at the top of 'the hierarchy of local government law regulating land use'" [citation omitted]; all land uses and other regulations and decisions must be consistent with the general plan. Therefore, by law, it was solely Napa County's police power exercises reflected in its General Plan, and not the Lot Line Adjustment approval at issue, that allowed or not "McMansioning," the protection and preservation of agriculture, or any other use or restriction. The petitioner's complaint regarding use and the potential for rampant development should be pursued at the policy level, through the Napa County General Plan, and not through a ministerial Lot Line Adjustment approval, which by law, also must be consistent with that General Plan.
C. Lot Line Adjustments Are Not Subdivisions
The petitioner argued that Napa County committed a prejudicial abuse of discretion by allowing "a reconfiguration of six parcels without complying with the [Map] Act's subdivision requirements." The petitioner failed to articulate what those "subdivision requirements" are, or to recognize that "subdivision" is a term of art under the Map Act, with a meaning and applicable requirements wholly different than those applicable to "Adjustment."
In a nutshell, under the Map Act, a "subdivision" is the division of land and the creation of new lots for the purposes of sale, lease or finance. The Map Act employs two different types of lot-creating maps to accomplish such subdivisions: (1) tentative and final maps, generally used for the creation of five or more lots; and (2) parcel maps, generally used for the creation of four or fewer lots. In contrast to the importance given by the Map Act to the creation of new lots by subdivision map (as reflected in Chapter 2), the Map Act provides express "exclusions" (provided in Chapter 1) to not only the subdivision mapping requirements of Chapter 2, but to the entirety of the Map Act itself. These Chapter 1 exclusions generally are contained in Government Code sections 66412-66412.2, 66412.5, and 66412.9, and include such activities as commercial and residential leases, oil and gas leases, wind-powered device easements and leases, land dedicated to cemetery purposes, leases for the purposes of agricultural labor housing, leases for telecommunication facilities, and Lot Line Adjustments.
Again, the petitioner argued that Napa County committed a prejudicial abuse of discretion by allowing "a reconfiguration of six parcels without complying with the [Map] Act's subdivision requirements." But the petitioner failed to recognize that Lot Line Adjustments are not subdivisions (i.e., are not "lot creators") and therefore are not addressed in the Map Act's Chapter 2 discussion of subdivision maps. There simply is no provision in Chapter 2 nor anywhere else in the Map Act that creates a "necessity for tentative, final and parcel maps" (Gov. Code § 66425) when a property owner seeks a series of Lot Line Adjustments over time. The petitioner's argument that the Lot Line Adjustment exclusion is exhausted after one use, and that a "subdivision" (read: map) consequence applies to any Adjustments thereafter is simply not recognized or provided for in the Map Act; Petitioner's argument did not follow the actual structure or text of the Map Act.
The petitioner also argued that allowing sequential Lot Line Adjustment approvals would defeat the purpose of the four-lot exception added to the Map Act by the Legislature in 2001. The petitioner asked, "What would be the point of the amended statute if multiple applications for overlapping parcels could somehow evade the four-lot exception?" The answer to the petitioner's question was two-fold.
First, under controlling law the "intent" of the 2001 amendment to the Lot Line Adjustment law is not relevant when, as is the case here, the statute is clear on its face. Second, if one were to conjecture a reason for why the Lot Line Adjustment exclusion is now fashioned to four or fewer lots per application, our argument above is instructive. As we have shown, Lot Line Adjustments exclusions are significantly different, and by design, significantly less cumbersome and complicated than are subdivision map creators. The intent underlying this exclusion therefore may have included providing both property owners and local government a simplified process when making changes to the configuration of a small number of pre-existing lots.
II. Napa County Is Authorized To Characterize Lot Line Adjustments As Ministerial
Napa County is authorized to characterize Lot Line Adjustments as ministerial for two different reasons. First, as discussed above, because Napa County's inherent police power derives from Article 11, § 7 of the California Constitution, and not from the delegation of authority by the state or statute. Therefore, the question whether a city or county can characterize a Lot Line Adjustments as ministerial is reduced to the presence or not of conflict; the statute does not have to grant "permission" to counties (or cities) for the local act to survive challenge. There is an absence of an express or implied Map Act directive that Lot Line Adjustments must be treated locally as discretionary acts (i.e., a conflict), and therefore Napa County could characterize them as ministerial.
Second, Section 66412 sets forth a number of different exclusions, including the Lot Line Adjustment exclusion (§ 66412(d)), with differing express indications as to whether the activity seeking the Map Act exclusion must be subject to "discretionary action" in order to qualify for the exclusion.
For example, the Map Act exclusion for wind-powered electrical generation devices expressly provides that the activity seeking the exclusion must be subject to a discretionary action somewhere in the process in order to qualify for the exclusion. Likewise, the Section 66412(j) exclusion regarding cellular radio transmission facilities, the Section 66412(l) exclusion regarding solar electrical generation devices, and the Section 66412(m) exclusion regarding biogas facilities all expressly provide that the activity seeking the exclusion must be subject to a discretionary action somewhere in the process in order to qualify for the Map Act exclusion.
In striking contrast to these Map Act exclusions (that expressly require a discretionary action somewhere in the process to qualify for the exemption) the Lot Line Adjustment exclusion does not require a discretionary action.
The rule of construction regarding statutory interpretation under these circumstances is clear:
'Where a statute, with reference to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject is significant to show that a different intention existed.' [citation omitted]
In the present case, the absence of the express requirement for discretionary action in the
Lot Line Adjustment subsection of the Map Act's exclusion section (§ 66412) – when that section clearly and expressly requires other activities to undergo a discretionary process – must be interpreted to conclude that the omission was intentional and that the Map Act does not require a discretionary process for Lot Line Adjustments.
It is important to understand that trial court decisions are not binding precedent for the rest of the cities and counties of the State to follow; therefore, Napa County superior court's (trial court) decision in this case is not legally binding in other counties, and applies only to the actual parties in this case. Moreover, this trial court decision might be appealed, and there may be similar cases pending in other courts that have not been decided yet. We will keep you posted as these issues develop further.
Nevertheless, these issues concerning Lot Line Adjustments are very important to the use of land in California. Cities and counties should have the authority to tailor Lot Line Adjustments to address the particular needs of their local communities, as long as doing so does not conflict with state law.