Government Agency and "Establishment Clause"

Sunburned_Surveyor · Post by **Sunburned_Surveyor** » Mon Apr 20, 2009 12:21 pm

A local government agency wants to acquire a portion of a parcel in fee. As part of the acquisition the parent parcel will be "subdivided" into two (2) separate fee parcels.

The government agency provides the land surveyor preparing the legal description for the parcel acquisition with a letter from its legal counsel indicating that the agency is exempt from the requirements of the Subdivision Map Act for this project.

I believe that the surveyor must still file a Record-of-Survey for the newly created parcel, because he is "establishing" a line according to Section 8762(b)(4) LS Act.

Do you agree, or am I incorrect in this case?

I know the meaning of "establish" in this section of the LS Act is often debated. I'd like to know what some other surveyors think of its applicability in this case.

The Sunburned Surveyor
PLS 8489

E_Page · Post by **E_Page** » Mon Apr 20, 2009 12:52 pm

Any field surveying involved?

Ric7308 · Post by **Ric7308** » Mon Apr 20, 2009 1:18 pm

Will the preparing Land Surveyor provide a sketch depicting the new line(s) that will accompany the legal description?

Gromatici · Post by **Gromatici** » Mon Apr 20, 2009 2:08 pm

It's likely that they are doing some improvements. The minute you stake out a line for a fence, it triggers the LS Act. I usually just include the RS in my price. It's in the interests of the public and the agency to have a RS anyway because of the potential for conflicts down the road if monumentation is obliterated.

Paul Goebel · Post by **Paul Goebel** » Mon Apr 20, 2009 4:07 pm

If you show the lines on plats or on the ground, I think it would trigger an ROS. I like Eric's idea of including the ROS in the price.

dmi · Post by **dmi** » Mon Apr 20, 2009 9:07 pm

There are times when the deed could be written from record and there would be no surveying involved. If there is no surveying of the line, just writing a deed does not trigger the filing of a ROS. I seem to recall language to the effect..".after performing a survey in accordance with...." If just writing the desciption and preparing a plat for a public agency requires the filing of a record of survey, that would basically defeat the SMA exception...

Ian Wilson · Post by **Ian Wilson** » Tue Apr 21, 2009 5:13 am

Actually, Dane, it's "...after performing a FIELD survey..."

;^)

.

dmi · Post by **dmi** » Tue Apr 21, 2009 8:06 am

Note "I seem to recall...." This is code for my memory fails me at the moment and I just can't be bothered to walk to the bookshelf or search for the reference on line...........

E_Page · Post by **E_Page** » Tue Apr 21, 2009 8:26 am

Landon, a RS has nothing to do with creating a new parcel, and is not required because a new parcel is created. As ian pointed out, a RS is required (under certain circumsatances) after performing a field survey.

If you are preparing a description for the property to be conveyed to the agency from record info, and are not doing any field surveying in connection with the property, then no RS is required.

As soon as you, or anyone else performs a survey to establish that boundary, then a RS will be required.

Peter Ehlert · Post by **Peter Ehlert** » Tue Apr 21, 2009 8:44 am

As clearly stated by Evan a Record of Survey is not required unless one of the provisions of 8762(b) has been triggered. Period.

===
In common practice a Land Surveyor would perform a field survey of the parent parcel and make no findings that would trigger the RoS. Then, that Land Surveyor would prepare a legal description and sketch for the Local Agency to use in the conveyance of that property under the SMA exception.
As an alternate scenario the Land Surveyor would prepare a legal description and sketch without the benefit of a field survey.

The triggers that require a RoS are clear... don't try to read something into them that is not there!

PLS7393 · Post by **PLS7393** » Tue Apr 21, 2009 8:53 am

How is this different from performing a field survey to locate features, then write the new descriptions for a boundary from the survey.

This is exactly what happens on Lot Line Adjustments, and no record of survey is required until the surveyor goes back after the document gets recorded, and he establishes the record boundary.

Peter Ehlert · Post by **Peter Ehlert** » Tue Apr 21, 2009 12:32 pm

no RoS need for a topo... or for orientation like a recon survey for an LLA...
no boundary determination is the key

"...a survey to establish that boundary... " is how Evan put it

PLS7393 · Post by **PLS7393** » Tue Apr 21, 2009 2:43 pm

Thats how I interpret it Peter, and I agree with you and Evan.

I just wanted to point out this similarity to a Lot Line Adjustment process.

Sunburned_Surveyor · Post by **Sunburned_Surveyor** » Tue Apr 21, 2009 4:08 pm

I think I am more confused now than when I started. Let me give you guys some more details:

- I will be performing field surveys to locate physical evidence of the parent parcel boundary.

- I will be performing a topo survey of topographic features on the site that will control the location of the new parcel.

- I will be preparing an 8 1/2 X 11 inch plat of the parcel to be recorded with my legal description.

- I will not (at this time) be marking the new parcel boundary with monuments, paint marks, stakes, or anything else.

Clearly, if I did mark the new parcel on the ground, and RS would be required.

If I show topographic features on my plat, is that "establishing"? What if I show found monuments on the plat, or reference them in my legal description?

It seems to me that the meaning of "establish" could be a little more clear in the law.

Thanks for the input.

The Sunburned Surveyor
PLS 8489

Sunburned_Surveyor · Post by **Sunburned_Surveyor** » Tue Apr 21, 2009 4:23 pm

I wanted to post part of a memo I received that dealt with the establishment question. I believe the memo resulted from a BORPELS Land Surveyors Technical Advisory Committee Meeting.

Here is an excerpt from the memo:

"This item was on the agenda at the request of Pat Tami, specifically to discuss the meaning of the word "establish" as it relates to Section 8762 of the PLS Act. According to Pat, the Board came out with an interpretive guideline more than 10 years ago regarding this issue, and staff claims to have consistently applied the guideline when reviewing cases over that period. According to staff, many surveyors believe that if no monument is set, a Record of Survey is not required. However, the guideline hinges not just on monuments, but on performance of a field survey that establishes points or lines that reveal material discrepancies. The discussion quickly turned to the definition of "establish" and it turned out there are differences of opinoin between the LSTAC members, as well as between the other surveyors in attendance. (The differences are not enormous, but enough to highlight the delimma.) Defining what constitutes "establishment" in turn sets up criteria for the need for a Record of Survey.

Issues include:

- This is another complaint driven enforcement issu for the board. Inconsistent standards of care by region, and even within locality, are the result of individual opinions by surveyors. Professional Practice Committees, or other forms of self-policing, may help to eliminate disparities in standards of practice.

- Many ALTA surveys do not have an accompanying RS Map on file, although ALTA boundary surveys clearly meet the criteria for RS maps based on 8762 of the PLS Act.

- Does a topographic map with a record boundary constitute establishment? Does it depend on how the compiled boundary was oriented to the topo? Does a tentative map showing a compiled boundary and proposed improvements constitute establishment? Some LSTAC members said yes if the topo or TM give a tie from existing or proposed improvements to the boundary. An RS Map would then be required unless a Final or Parcel Map is recorded.

- A note on a map disclaiming the accuracy of a compiled boundary or stating that the boundary is not the result of a field survey does not necessarily excuse the surveyor for not following the standards of practice or for not complying with state law.

- One attendee commented that virtually no survey should be performed without filing some kind of document.

Next Steps:

- Possibly ask Attorney General for opinion.
- Possibly direct staff counsel to research case law, board cases, past Board policies, and changes in the law and compile materials to help LSTAC decide how to advise Board on this issue. One attendee commented that he had researched case law going back to 1907 and that the law is consistent and clear.
- Approach CLSA, CELSOC, and CEAC after research is completed and LSTAC has created a basic â€œplatformâ€ to discuss the issue and possible solutions.

The letter was dated November 30, 2007. I'd be interested to know if anyone followed up on this.

The Sunburned Surveyor
PLS 8989

Jim Frame · Post by **Jim Frame** » Tue Apr 21, 2009 7:01 pm

"Clearly, if I did mark the new parcel on the ground, an RS would be required."

A Record of Survey would not necessarily be required if the monuments are set prior to transfer of title. If the corners of the proposed parcel do not establish any lines or corners of the parent parcel, not only is there no requirement to file a ROS before transfer of title, but you wouldn't be able to file one unless you chose to show the monuments as reference points to the corners of the parent parcel. The proposed parcel gets created not by being drawn on an map, but rather by transfer of title, and until that occurs its corners are not "points" as the word is used in Â§8762(b)(4) unless they happen to establish lines or corners of the parent parcel. Thus in many cases you could set monuments at the proposed corners and not be required to file a ROS.

That said, I believe it is highly desirable to file a ROS after title is transferred in order to maintain up-to-date land records. The clients in these situations are usually public agencies, and it's generally easy to convince them that a ROS should be included in the scope of work.

.

Ian Wilson · Post by **Ian Wilson** » Wed Apr 22, 2009 5:26 am

Jim:

§8762 (A) allows the licensed surveyor to file Record of Survey after ANY field survey.

As you write, though, you 'd have to show the monuments as references an indicate that the ROS did not constitute a subdivision.

-

dmi · Post by **dmi** » Wed Apr 22, 2009 8:24 am

I suppose if you are going to file a record of survey, then it is probably most desirable for the deed to reference the record of survey and the character of the corners set.

Jim Frame · Post by **Jim Frame** » Wed Apr 22, 2009 8:51 am

There's a chicken/egg problem with filing the ROS before the transfer of title. You can't file a ROS that creates a parcel, so you have to wait until the parcel is created by the deed before you can file a ROS showing corners set for that parcel. Setting the monuments before the transfer and calling them reference marks to parent parcel corners on a ROS -- which can be done -- won't establish a nexus between those monuments and the corners of the parcel to be created by deed. In my opinion, the ROS has to follow the deed in order to achieve the desired effect.

.

PLS7393 · Post by **PLS7393** » Thu Apr 23, 2009 6:51 am

Some planning departments require a record of survey to be filed concurrently with a lot line adjustment, which I do not agree with, since conditions can not be attached to a lot line adjustment. It is up to the land surveyor to know section 66412 SMA. In the case the planning department gets the upper hand, the lot line adjustment needs to be recorded first, and the record of survey references the recorded document.

Similar to what Jim said. The document/deed needs to be recorded first to create the boundary which will be monumented.

Jim Frame · Post by **Jim Frame** » Thu Apr 23, 2009 7:20 am

"Some planning departments require a record of survey to be filed concurrently with a lot line adjustment"

Some planning departments may *try* to require it, but the wording in Â§66412 is pretty clear:

"No record of survey shall be required for a lot line adjustment unless required by Section 8762 of the Business and Professions Code."

.

Ric7308 · Post by **Ric7308** » Thu Apr 23, 2009 12:09 pm

For those of you that deal with agencies that attempt to require a Record of Survey as a condition of approval for a LLA, you may want to review AG Opinion 94-518 which directly addresses the issue.

Ric

LA Stevens · Post by **LA Stevens** » Thu Apr 23, 2009 12:41 pm

Is the agency allowed to request mapping of existing improvements in the area of the Lot Line Adjustment to be in compliance with Building and Zoning Ordinaces? If so isn't that a field survey? If you have mapped existing features and you placed the adjusted Line 10.00 feet from the proposed Lot Line or relative to some other feature on the ground, it seems to me that it would require a Record of Survey.

Jim Frame · Post by **Jim Frame** » Thu Apr 23, 2009 3:18 pm

Not necessarily. The simplest scenario that doesn't require a ROS is one in which the lot is monumented in agreement with the record. You can do a field survey and relate the boundary to site features without tripping the requirements for a ROS.

Another scenario assumes for purposes of discussion that the zoning requires a 10-foot setback. If you can overlay the record parcel dimensions on a high-resolution aerial photo showing that the proposed line clears the existing building by 50 feet, then a ROS probably isn't necessary.

.

LA Stevens · Post by **LA Stevens** » Thu Apr 23, 2009 3:41 pm

"Not necessarily. The simplest scenario that doesn't require a ROS is one in which the lot is monumented in agreement with the record. You can do a field survey and relate the boundary to site features without tripping the requirements for a ROS."

Are you referring to a Proposed Boundary Line which eventually becomes the adjusted line?

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Government Agency and "Establishment Clause"

Government Agency and "Establishment Clause"

Establish

thanks Ian

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LSTAC Memo

"Not necessarily. The