SMA Section 66412 (d) - Conditioning Lot Line Adjustments

[LS_8750]

Dear Esteemed Professionals,

SMA Section 66412 (d) states in pertinent part:

"[a]n advisory agency or local agency shall not impose conditions or exactions on its approval of a lot line adjustment except to .... facilitate the relocation of existing utilities, infrastructure, or easements."

What kind of reach are we talking about here? Can conditions be imposed in areas where the lines are not being adjusted, where relocating existing utilities, infrastructure, or easements is not necessary to the execution of the LLA?

Please advise.

Cheers,
Clark

[Ian Wilson]

No.

The idea behind the Lot Line Adjustment is that it is exempt from the SMA process.

With the LLA, there is no real subdivision of lands going on. There will not be more parcels after the LLA than there were before the LLA. The Subdivision deals with the creation of parcels.

§66412(d) is very specific. ”… shall not impose conditions or exactions on its approval of a lot line adjustment except to conform to the local general plan, any applicable specific plan, any applicable coastal plan, and zoning and building ordinances, to require the prepayment of real property taxes prior to the approval of the lot line adjustment, or to facilitate the relocation of existing utilities, infrastructure, or easements…”

The only conditions that can be imposed are conditions that are relative to the general plan, any specific plan, any costal plan or any building or zoning ordinances. Keep in mind that these items are the things that qualify the project from denial by the local jurisdiction.

In other words, if the local agency comes back with “Plant three trees and we’ll allow your LLA.”, that would not be kosher. If the local agency comes back with, “The resulting parcels will not be compliant with minimum parcel size for the areas zoning.”, that’s grounds for denial of the LLA.

Now, certain jurisdictions (and you know who you are) have looked me in the eye when I tried to explain §66412(d) and said to me, “So, sue us.” And my clients did not have deep enough pockets to do so. Winning by intimidation. Kind of like playing poker.

[Ric7308]

Now, certain jurisdictions (and you know who you are) have looked me in the eye when I tried to explain §66412(d) and said to me, “So, sue us.” And my clients did not have deep enough pockets to do so. Winning by intimidation. Kind of like playing poker.

Unless you are a licensee at the agency in saying this and its not in compliance with the practice laws...

[LS_8750]

Ok, how about this scenario.....

"We will grant your LLA if you give us access to our water system from this direction..." When such case, for example, the easement may come from another, more difficult, direction, or may not be specific as to which direction. Remember, the adjusted lines are nowhere near these easements...

Is this an allowable condition to impose?

[Warren Smith]

Clark,

If a specific plan addresses the utilities' ultimate route, then yes, it's an appropriate application of orderly development - which would be a condition of approval for a construction permit in any event.

[Ian Wilson]

Warren,

I disagree.

The exaction is not appropriate at the LLA level. It is appropriate at the building prompt level.

This is where I have a problem with some jurisdictions. They see the parcel creation/building process as one single event in multiple parts.

It is not. A bare land lot is just as significant an end product as a finished home.

The SMA is designed to protect future owners of the property from not being able to fully enjoy living in a home on the property and to protect the surrounding owners and community from others overtaxing local resources and diminishing value.

Exactions and conditions placed at the time of permits accomplish this fat better than at The LLA phase.

Had the legislators wanted to craft the section to allow the exactions that Clarke is taking about, they could easily have done so. After all, they've had the initial legislation and the complete overhaul and various tweaks to get it to the current configuration over the past 40+ years.

[William Magee]

Clark asked:

"Ok, how about this scenario.....

"We will grant your LLA if you give us access to our water system from this direction..." When such case, for example, the easement may come from another, more difficult, direction, or may not be specific as to which direction. Remember, the adjusted lines are nowhere near these easements...

Is this an allowable condition to impose?"

Likely no. Even if the utility's route was part of a specific plan, the agency would have to show a legal nexus based on the impact of the LLA (see U.S. Supreme Court case "Dolan v Tigard, Or"). Adjusting a boundary generally does not cause increased burden on infrastructure.
In addition, the statute on LLA's discusses the limitation on agency conditioning except to meet "conformance" with general, specific and coastal plans along with builidng and zoning ordinances. "Conforming" to those plans and ordinances is not one and the same as agency imposing conditions or dedications based on any nexus findings by the agency. I believe this to be the spirit of the law (66412 d) where it clearly limits agencies from conditioning LLAs except where necessary for "conformance", i.e. meeting setbacks, minimum lot sizes and other minimum standards of development.

Without having seen the proposed LLA and background behind the agency request, I offer that it is very likely the agency is trying to buffalo the client into an uncompensated and unlawful taking.

[mpallamary]

Please see the attached if anyone is interested.

As an aside, I managed CLSA's involvement as Amicus and I wrote the opinion adopted by the appellate court. The attorneys we hired embraced my language and arguments. It was a lot of fun.

[LS_8750]

So what does this mean?

Portion SMA Section 66412 (d):

"[a]n advisory agency or local agency shall not impose conditions or exactions on its approval of a lot line adjustment except to .... facilitate the relocation of existing utilities, infrastructure, or easements."

What does it mean to "facilitate the relocation of existing utilities, infrastructure, or easements?" Why is that statement included in 66412 (d)?

[Mr. Smith]

I always took this as a reminder to look at existing easements and or utilities
of record that exist and make sure the adjustment does not frustrate (make impossible)
those proposed or existing easements / utilities.

As for letting a local controlling authority mandate conditions of approval other than possibly access NO!

Brian

[Ian Wilson]

If the lot line moves so that the water meter serving the property is no longer on the property, the local agency may require the water meter to be moved before the LLA is approved. That's one simple example.

[LS_8750]

Thanks all!
Repeat scenarios where City engineer says "give me an easement here", or "give me an easement there." Thinking its under authority of local ordinance and/or SMA to condition an LLA in this manner.

Yeah, right pal. Pack sand.