Certificate of Compliance Rejected

[ekparian]

I have a client who owns (as the legal description reads) Lots 36 & 37 of the Grey Tract... There is only one APN Number. There is a house on each old Lot, not a single house crossing the Lot Line. There is no record of a Lot Merger. The map was recorded in 1906. Each Lot on the block is 50' wide. The city requires that in order for a submittal, the improvements, hardscape, house etc. are to be located and tied to the Boundary to show setbacks. I solved the block turned in the submittal package and waited over 6 months for the City Determination. When i solved the block, i had to prorate making each Lot 49.96' wide and not 50' as created. The site plan, plat and legal that i prepared for the certificate of compliance are stamped preliminary as they are only in review.

The City denied the Certificate because they found a court case that was tied to the property in which a previous owner passed away in 1986 and the estate was dived up. The property in question was awarded to a single person. The city stated that because a "Judge determined that Lots 36 & 37 were a Property that was transferred to the heirs. The judgement means that Lots 36 & 37 were conveyed together as one legal parcel and not viewed as separate and legal".
I couldn't find anywhere in the judgement that the Judge stated this is a single Lot.

The City now states that the Lots are not 50' wide (per my preliminary survey) and they will not allow a lot split by Subdivision because it does not meet the Zoning Requirement of 50' wide per the City Ordinance. They state that a subdivision would need to meet the Cities Zoning and Subdivision Ordinance as well as the subdivision Map Act.

I believe the City is incorrect and started to state my case, but you cant argue with a planner. what is the best avenue for recourse?

How should I appeal this decision?

Any help would be appreciated.

[Steve Martin]

Follow the chain of title to see if the lots have ever been sold separately.

[ekparian]

I have traced the chain of title to 1951 where the Father and Mother of the family purchased 4 lots (Lots 36, 37, 38 & 39). At some point, they sold off Lots 38 & 39 (unclear if they sold separately) and those are shown as legal lots with their own APN Number.

The Document "Judgement of Final Distribution" conveyed the property to the Mother (Hilda "Last Name", Trustee of the John Doe Testamentary Trust). The next deed conveyed to the wife again (jane "Doe Trustee under that Declaration of Trust dated August 24, 1992, AKA Jane Doe" 1992 Inter Vivos Trust. The property/ies have remained together in the family and changed hands several times.

should i try to chase chain of title farther to see if they were sold separately? Would lot legality not occur for 2 lots if they were not ever sold separately? The legal description does not describe as meets and bounds.

If it is determined they are one lot, how can I get the city to honor the lots to be 50' wide in which my client could divide back into 2 lots?

[LA Stevens]

Having one AP does not merge the legally created underlying parcels.

Another way to Obtain a COC is to check the agency records to determine if they ever issued a permit for each of the addresses separately. If so, that would prove they have been recognized by the agencies as separate parcels. See SMA 66499.34 and .35 (c).

I don't think you need to given what you explained, but if it was deed described parcels you would need to chain back to determine if the parcels ever had separate owners. Ideally you go back to when it was created and it meant the requirements for a lot split at the time, they have to issue or if not a conditional COC of what you would need to do to comply..

The parcel is 50 feet wide. Your measurement difference is de minimis. The County Surveyor should be able to help you with that. I have never understood why they allow planners to opine on COC's.

Good Luck,
Larry Stevens

[mpallamary]

First question: WHO at the city is telling you this? Are they licensed as a land surveyor?

[mpallamary]

Also, if the lots are described as per a recorded subdivision map, why would you not use those descriptions? Forgive me if I missed something. A legal lot is a legal lot. There is no reason to alter such a description.

Also they cannot deny you a COC. it is ministerial and not discretionary. They can condition it but not refuse to issue it.

The court case you cited cannot merge the parcels. Merger is governed by the SMA.

[ekparian]

Having one AP does not merge the legally created underlying parcels.

Another way to Obtain a COC is to check the agency records to determine if they ever issued a permit for each of the addresses separately. If so, that would prove they have been recognized by the agencies as separate parcels. See SMA 66499.34 and .35 (c).

Good Luck,
Larry Stevens

Larry,
on the cover sheet of the grant deed, it says " the following real property in the City of ..., commonly known as 296, 298 and 300 street name, more particularly described as" The GIS Site currently lists this as one address.

First question: WHO at the city is telling you this? Are they licensed as a land surveyor?

i have only had communication with planners. the rejection letter was written and signed by an Acting Planning Manager and says if i have any questions, to discuss with the planner assigned to our project. There is email correspondence indicating that the City Attorney has had the letter for over a month in their possession for review prior to sending to me.

Also, if the lots are described as per a recorded subdivision map, why would you not use those descriptions? Forgive me if I missed something. A legal lot is a legal lot. There is no reason to alter such a description.

Also they cannot deny you a COC. it is ministerial and not discretionary. They can condition it but not refuse to issue it.

The court case you cited cannot merge the parcels. Merger is governed by the SMA.

I did describe as one Lot. My legal description i submitted said "All of Lot 36 as shown on that certain map entitled... and i did give a meets and bounds following... and the same for Lot 37.

They did flat out deny the Certificate. There is no mention of conditioning.

I can present the items you just posted, but should i ask to speak with the person who reviewed the file and find out if they are licensed?
Again, i found it pointless arguing with a planner and decided discuss here and gather a plan of attack before further arguing.

[hellsangle]

As Mr. Steves pointed out . . . if there was ANY permit issued on one or the other lots, (address or otherwise?) - that constitutes a Certificate of Compliance.

When you have government that doesn't recognize state law (SMA) time for a good land use attorney.

I wonder if you offered one parcel for sale, what would the Preliminary Report (offering title insurance) say?

Is it unmarketable title?

Good luck. I think luck and a good attorney - is what you'll need.

Crazy Phil - Surveyor to Recorder (beatin' the dead horse again)

[mpallamary]

File a complaint with the state board over practicing land surveying without a license.

PLSA:

8726. Land surveying defined

A person, including any person employed by the state or by a city, county, or city and
county within the state, practices land surveying within the meaning of this chapter who, either
in a public or private capacity, does or offers to do any one or more of the following:
(a) Locates, relocates, establishes, reestablishes, or retraces the alignment or elevation
for any of the fixed works embraced within the practice of civil engineering, as described in
Section 6731.
(b) Determines the configuration or contour of the earth’s surface, or the position of
fixed objects above, on, or below the surface of the earth by applying the principles of
mathematics or photogrammetry.
(c) Locates, relocates, establishes, reestablishes, or retraces any property line or
boundary of any parcel of land, right-of-way, easement, or alignment of those lines or
boundaries.
(d) Makes any survey for the subdivision or resubdivision of any tract of land. For the
purposes of this subdivision, the term “subdivision” or “resubdivision” shall be defined to
include, but not limited to, the definition in the Subdivision Map Act (Division 2 (commencing
with Section 66410) of Title 7 of the Government Code) or the Subdivided Lands Law
(Chapter 1 (commencing with Section 11000) of Part 2 of Division 4 of this Code).
(e) By the use of the principles of land surveying determines the position for any
monument or reference point which marks a property line, boundary, or corner, or sets, resets, or
replaces any such monument or reference point.
(f) Geodetic or cadastral surveying. As used in this chapter, geodetic surveying means
performing surveys, in which account is taken of the figure and size of the earth to determine or
predetermine the horizontal or vertical positions of fixed objects thereon or related thereto,
geodetic control points, monuments, or stations for use in the practice of land surveying or for
stating the position of fixed objects, geodetic control points, monuments, or stations by
California Coordinate System coordinates.
(g) Determines the information shown or to be shown on any map or document prepared
or furnished in connection with any one or more of the functions described in subdivisions (a),
(b), (c), (d), (e), and (f).
(h) Indicates, in any capacity or in any manner, by the use of the title “land surveyor” or
by any other title or by any other representation that he or she practices or offers to practice land
surveying in any of its branches.
(i) Procures or offers to procure land surveying work for himself, herself, or others.
(j) Manages, or conducts as manager, proprietor, or agent, any place of business from
which land surveying work is solicited, performed or practiced.
(k) Coordinates the work of professional, technical, or special consultants in connection
with the activities authorized by this chapter.
(l) Determines the information shown or to be shown within the description of any deed,
trust deed, or other title document prepared for the purpose of describing the limit of real
property in connection with any one or more of the functions described in subdivisions (a) to (f),
inclusive.
(m) Creates, prepares, or modifies electronic or computerized data in the performance of
the activities described in subdivisions (a), (b), (c), (d), (e), (f), (k) and (l).
(n) Renders a statement regarding the accuracy of maps or measured survey data.
Any department or agency of the state or any city, county, or city and county that has an
unregistered person in responsible charge of land surveying work on January 1, 1986, shall be
exempt from the requirement that the person be licensed as a land surveyor until such time as the
person currently in responsible charge is replaced.

The review, approval, or examination by a governmental entity of documents prepared or
performed pursuant to this section shall be done by, or under the direct supervision of, a person
authorized to practice land surveying.

[mpallamary]

Who is in responsible charge of land surveying at the city. request, if needed under Public Record Act laws, a copy of the Notice of Department form from the city.

They have ten days to respond.

If they do not have anyone, file a complaint.

If they do have someone, file a complaint against that individual. That is why the law was rewritten! It was to hold individuals responsible so agencies could no longer hide behind the veil of a city agency or department.

[ekparian]

Who is in responsible charge of land surveying at the city. request, if needed under Public Record Act laws, a copy of the Notice of Department form from the city.

They have ten days to respond.

Who do I email and ask about responsible charge, or submit my request for a copy of the notice of department form?
Would I email the planner, the person i have been dealing with?

[mpallamary]

Do it under the PRA process. If they do not have a procedure, send it to the City Clerk.

[mpallamary]

I would not fool around with the planner unless you are working with crayons, dull scissors, and construction paper! (Yes, I was being sarcastic.)

[David Kendall]

Who do I email and ask about responsible charge, or submit my request for a copy of the notice of department form?

Ask the planner for the name of the city surveyor. Ask the board for the NODD form if you can’t get a city surveyor on the line. If they don’t have a NODD form on file then the guy at the board will send the city a letter someday and tell them that they really should file a NODD. Don’t hold your breath

[mpallamary]

See attached.

[ekparian]

I would not fool around with the planner unless you are working with crayons, dull scissors, and construction paper! (Yes, I was being sarcastic.)

Who would you contact?
I am building an arsenal for an email on monday?
Thank you all very much!

[mpallamary]

Contact the city clerk, the city attorney and the mayor with CC to the city council. If you are going to make noise, be loud!

[Ian Wilson]

Similar situation on Laurel Way in Redwood City. Case attached. Some lots had always been sold together since original subdivision. They were held to be a single lot. Others were amalgamated later; those were held to be separate lots.

[Ian Wilson]

Mike Pallamary:

Your post of the conclusive presumption letter reminded me of Jim Ellis. I recall reading a memoir I thought was his about his time in the State Legislature, but I can't find any reference to it. He told the story about climbing out the men's room window at the Sutter Club when a lobbyist stuck him with the bill. Do you remember anything about that book?

[mpallamary]

Not as I recall although I knew Jim. He was a good man.

https://www.sandiegouniontribune.com/ne ... story.html

[mpallamary]

Good luck.

[steffan]

1. Was it a legal subdivision?
2. Was it an illegal subdivision?

If yes to either, than an unconditional COC or conditional COC respectively must be granted by the agency.
If no to both, than no COC would be issued.

The answer these questions are dependent on a number of things. Perhaps CA Civil Code 1093 will help. Also some precedent CA case law on antiquated subdivisions may be of use, such as Abernathy Valley v Solano Co, Gardner v Sonoma Co, and Witt Home Ranch v Sonoma Co.

Before firing off at the agency and cc'ing clients, be sure you have the correct stance. Some of the questions posed deal with understanding and determining compliance with the SMA. Understanding and determining compliance with the SMA is not necessarily exclusive to the practice of land surveying.

[mpallamary]

If I may, the paramount rule is the city cannot stonewall you. By definition, they need to be notified. The processing of a COC is ministerial and not discretionary. The game clock ran out.

[dedkad]

Because the properties were referred to in the deed as "property" rather than "properties", it could be problematic. If the City is referring to the same court case that I recall reading, they do have a possible argument, but are they really willing to risk going to court with the property owner over this? Rather than writing letters to everyone and their brother and risk alienating the staff at the City, why not talk to them a little more. My first question to the planner would be "what is the risk of recognizing these as two separate parcels?". There's already a house on each lot. Each lot is only 0.04' off of their 50' minimum and another surveyor could very well come in and find that extra 0.08'. Other questions for discussion would be: Is the City at risk of being sued by a 3rd party if they recognize these two lots as individual lots? What are they hoping to achieve by forcing the property owner into a subdivision instead of COC or not allowing the lot split at all? Are there improvements they want done? I think their stance would be difficult to defend in court, so why would they bother if they aren't getting any benefit. Good luck! I'm sure you will be able to work this out, and I bet you've learned a lot in the process for next time.

[Peter Ehlert]

^the voice of reason^
If it was me I would take that approach. Similar tactics have worked for me in the past