8765 changes

[David Kendall]

Could someone please explain to me why public agency surveyors should be allowed to establish boundaries without filing a record?

Board of Directors meeting was held virtually on April 27, 2024 via Zoom:
a. The Legislative Committee requested, and the Board of Directors approved, the following
suggested modified language for Business & Professions Code 8765, 8766 and 8766.5
(Record of Survey Exemptions):
i. 8765. A record of survey is not required of any survey:
(a) When it has been made by a public officer in his or her official
capacity, or a licensed land surveyor employed by a public
agency, and a reproducible copy thereof, showing all data required
by Section 8764, except the recorder’s statement, has been filed with
the county surveyor of the county in which the land is located. Any
map so filed shall be indexed and kept available for public
inspection.

[Warren Smith]

The addition here seems to include consultant surveyors to the existing public officer exemption. The filed (with the County Surveyor) and indexed record of survey generally is of monumentation of right of way acquisitions, or section breakdowns. The establishment of boundaries has already taken place by the grant deed (or GLO Plat).

[Jim Frame]

When did this happen? And does "employed by" include consultant work? That would be a big change, and one that affects a current project of mine. I'd love to be able to tell the agency that they just saved $1200.00 in county fees. Can anyone confirm?

[Warren Smith]

This would be a proposed revision to be placed into a Bill sponsored by a willing legislator, then sent through committees for hearings and debate.

[SueDonim]

The current statute reads:

8765.
A record of survey is not required of any survey:

(a) When it has been made by a public officer in his or her official capacity and a reproducible copy thereof, showing all data required by Section 8764, except the recorder’s statement, has been filed with the county surveyor of the county in which the land is located. Any map so filed shall be indexed and kept available for public inspection.

According to Deering's California Code, it has been this way since added by the statutes of 1939 (Chapter 41 - 1939).

Mssrs. Smith and Frame, does "employed by" equal "under contract to"? If so, I would assume that it includes contracted land surveyors.

Note that a map still needs to be filed with the County Surveyor showing everything required under §8764, just not the Recorder's Statement.

Note, too, that I could not find any bill currently filed that contains these changes.

[Mike Mueller]

does "employed by" equal "under contract to"? If so, I would assume that it includes contracted land surveyors.

I am not on the leg committee, but from what I remember about the discussion the proposed legislation is attempting to clarify that employees of an agency, which are NOT officers, (IE almost every land surveyor at Caltrans or PGE etc) can be the stamper of a map and not incur checking/recordation fees.

Consultants have not benefited from that relief, and would not under this proposed change.

As it stands, some jurisdictions will let the large agency maps through without a check fee, and some won't, since the submitting surveyor is not a "officer". As it was explained to me, "officer" is understood to be the person who is currently in a titled role that exists with or without someone in it that is referenced in other laws and statutes. Like County Surveyor, or Mayor, or District Attorney. So some agencies were saying that Caltrans maps prepared by an employee of Caltrans were not exempt since the employee was not an "officer" in the organization.

Personally I never understood why the idea of "government shouldn't pay itself" applies here. Until we can get the RoS check fee reduced to zero, why hurt the CS office to save Caltrans 0.001% of their budget. Its not all the same government, since it does not all share the same general fund.

Mikey Mueller, PLS 9076
Sonoma County

[Ric7308]

Could someone please explain to me why public agency surveyors should be allowed to establish boundaries without filing a record?

Board of Directors meeting was held virtually on April 27, 2024 via Zoom:
a. The Legislative Committee requested, and the Board of Directors approved, the following
suggested modified language for Business & Professions Code 8765, 8766 and 8766.5
(Record of Survey Exemptions):
i. 8765. A record of survey is not required of any survey:
(a) When it has been made by a public officer in his or her official
capacity, or a licensed land surveyor employed by a public
agency, and a reproducible copy thereof, showing all data required
by Section 8764, except the recorder’s statement, has been filed with
the county surveyor of the county in which the land is located. Any
map so filed shall be indexed and kept available for public
inspection.

Very good question David. And (the topic of being exempt from review fees aside as a separate aspect) one which every person authorized to practice land surveying in CA should thoroughly think through...

[David Kendall]

Couple points of clarification: the parallel “County Surveyor filing” system serves no one and complicates research. Is this 1939 law an effort to save on recorders fees or plat paperspace? This caveat is outdated and should be removed from the code.

Over the years, I have heard garden variety Caltrans, Calfire and SLC land surveyors (probably not public officers) use this clause as justification for their failure to file surveys. My understanding is that they have all generally convinced themselves that they do not have to file under the same circumstances as a private LS. This practice defers the liability burden of mapping their work and filing records on the general public (and private surveyors).

Thank you for the explanation Mikey! Please note that PGE is not a public agency. Are there other “public officers” from somewhere besides state agencies who are supporting this legislation?

I have no interest in the review fee conversation. I feel that all of the survey review costs should be subsidized in order to encourage more filings.

If I was a public officer and cared so much about saving those fees then I suppose that I could always supervise the survey and stamp the map myself, regardless of the contractor performing the field survey….

[Ian Wilson]

David,

I could not agree with you more. I do believe that any survey done by a public agency that triggers the requirements to file a Record of Survey should be treated the same as any other private surveyor.

The only difficulty I have with that set up is for small agencies that do not have multiple licensees on staff. I would not be comfortable signing as the surveyor of record AND the county surveyor certifying my own work. I would be a bit put off by a recorded map with one person signing both Surveyor Statement and County Surveyor Statement. Who would be reviewing in responsible charge and where is the independent accountability?

I am fortunate at Alameda County in that I have Ron Archer, Jr., LS 8427, who manages field surveys (and prepares and signs the RS & CRs) and Paul Kittredge, LS 5790, who reviews and checks maps. I have a separation between the "doer" and the "reviewer" and I sign the map before recording.

And, my take on GC is that the officer signing the map and forwarding it to me as their work product for review is listed on the agency's NODD form on file with BPELSG. I regularly request copies of NODDs from Dallas Sweeney to verify status.

I'm responding to this as I believe this topic is very relevant to my work and duties as the Alameda County Surveyor. I was alerted to this thread from another surveyor.

[Ric7308]

Based on the research we performed at the Board relative to 8765(a) and "public officer", only the County Surveyor is considered to apply as it pertains to the practice of land surveying.

[Ian Wilson]

Ric,

We also accept City Surveyor (when designated on the NODD) and surveyors for any public agency also listed on their NODD.

We do not accept independent contractors working for an agency under a project contract (road paving, etc.).

BTW - Pushing the Notice of Departmental Designation (NODD) for public agencies as well as the Organization Record Form (ORF).

Questions, Ric: Do you allow licensees to be designated on multiple forms? How about both private AND public at the same time? Does being the named NODD put the licensee in responsible charge for all surveying done by that agency?

Example: Don Survey is on the ORF for Survey Surveying. He is also designated on the NODD for Whata City so he can work under contract on CRs for repaving of Main Street. Is he also liable for the survey work in Whata City for other projects he is not under contract for?

[Mike Mueller]

I am also curious who (if anyone) is advocating for the continuation of the exemption? Considering how research is done these days, not having a boundary survey filed as a RoS seems like a bad thing on most (all?) levels I can think of. There are various counties with "official unofficial" maps, but that seems like using a rock for a hammer, it works, but its not ideal.

Anyone from the Leg Com willing/able to explain why we are attempting to modify rather than eliminate the exemption? Seems like 8765 (a) could be removed entirely and only produce good results in the long term? The only impact I can see would be on the CS office, and only in the cost of the review being "saved". I must be missing something?

Perhaps its a nightmare to get some of the admin systems to let a ROS through the system without a payment being made and they can't pay themselves? If that is the only reason then I say remove the exemption and let the paperwork get sorted out by each agency.

Interesting consideration: if a map is made by the CS and it is not filed as a RoS, there is an argument to be made that it would fall within the "official map" part of 8762(b)(4). So we could then file a CR or make a topo map using that map. Seems like a bad loophole.

Mikey Mueller, PLS 9076
Sonoma County

[SueDonim]

Mr. Mueller,

I believe that Official Maps are specifically defined in the Subdivision Map Act in §66499.50 through 66499.58.

With all due respect to County Surveyors, not everything they do rises to the level of "official".

Keep in mind that budgets of one department or agency are very rigid and protected. Unlike private companies, funds from one departments or agency do do not get paid into the same accounts. If you look into the cases surrounding enforcement of Government Code §6103, you'll find that many of them are one government entity or another suing the Recorder to avoid paying money to them.

Sue

[Ric7308]

Ric,

We also accept City Surveyor (when designated on the NODD) and surveyors for any public agency also listed on their NODD.

We do not accept independent contractors working for an agency under a project contract (road paving, etc.).

BTW - Pushing the Notice of Departmental Designation (NODD) for public agencies as well as the Organization Record Form (ORF).

Questions, Ric: Do you allow licensees to be designated on multiple forms? How about both private AND public at the same time? Does being the named NODD put the licensee in responsible charge for all surveying done by that agency?

Example: Don Survey is on the ORF for Survey Surveying. He is also designated on the NODD for Whata City so he can work under contract on CRs for repaving of Main Street. Is he also liable for the survey work in Whata City for other projects he is not under contract for?

The purpose of the NODD form is not related to the use of "made by public officer in his or her official capacity" in 8765(a).

We were recently asked about "public officer" as used in this context and we had to collaborate with legal counsel on what was meant at the time this language appeared. Based on the research, the only "public officer" who is authorized to perform a survey and make a map is a County Surveyor, properly appointed or elected (there still is one). That's it.

The purpose of the NODD form is for the public agency to disclose to the Board which staff members were practicing in responsible charge of any engineering or land surveying while performing their duties. This can potentially include every single licensed engineer and licensed land surveyor in public employment. The Board lets the public agency determine who is in responsible charge for the purposes of deciding who is listed on the NODD form but this doesn't preclude the Board from determining who is responsible charge at any time regardless of whether they are listed or not.

When a privately-employed licensee is contracted with a public agency to provide official duties, or otherwise act in responsible charge, related to engineering or land surveying being performed at that public agency, that licensee must be listed on the NODD form. It is reasonable to expect that same licensee would be listed on the contracted firms Organization Record also simply because that person would be acting in responsible charge of the offered services to the public agency (the firm's client).

Edit: A licensee contracted to be a City Surveyor (for example) would be performing official duties but not be considered a "public official" as used in 8765(a). Those are two different situations unless the person is contracted as a County Surveyor.

[Ian Wilson]

Ric,

"The purpose of the NODD form is for the public agency to disclose to the Board which staff members were practicing in responsible charge of any engineering or land surveying while performing their duties." Exactly my point.

How about a licensee who is employed as the City Surveyor? We have three cities in this county that have their own in house surveyors. They do their on Records of Survey and Corner records for submittal to me. As the City Surveyor (not contract City Surveyor) they are acting in their capacity as an officer of the City and entitled to the exemption under GC §6103, in my opinion. That was my point. How are they not considered as acting on behalf of the county, city, district, or other political subdivision?

I was not making any comments about application to BPC §8765, My comments were relative to GC §6103.

While the NODD form establishes who has been designated as being in responsible charge for the agency for your purposes, we can also use the information on the form to help us understand who is in responsible charge at those agencies.

[Ric7308]

Ric,

"The purpose of the NODD form is for the public agency to disclose to the Board which staff members were practicing in responsible charge of any engineering or land surveying while performing their duties." Exactly my point.

How about a licensee who is employed as the City Surveyor? We have three cities in this county that have their own in house surveyors. They do their on Records of Survey and Corner records for submittal to me. As the City Surveyor (not contract City Surveyor) they are acting in their capacity as an officer of the City and entitled to the exemption under GC §6103, in my opinion. That was my point. How are they not considered as acting on behalf of the county, city, district, or other political subdivision?

I was not making any comments about application to BPC §8765, My comments were relative to GC §6103.

While the NODD form establishes who has been designated as being in responsible charge for the agency for your purposes, we can also use the information on the form to help us understand who is in responsible charge at those agencies.

I see that GC 6103 is referring to fees which from a Board's perspective, meaning charged with regulating the provisions of the PLS Act, I don't really care about that. What fee a City Surveyor pays to submit and file a Record of Survey is under the public agency's domain and is not a concern of mine or the Board. And what fee is paid or not paid has nothing to do with the use of the term "public official" in 8765(a).

With all due respect, you are conflating two different issues; charging of a fee for this purpose and exemption from filing a record of survey pursuant to 8765(a). One doesn't have anything to do with the other. From the Board's perspective (see what I said above), the only person(s) authorized under 8765(a) is a County Surveyor. Regardless of whether Alameda County chooses to not make the City Surveyor pay a review or recording fee or not, the City Surveyor is not exempted from filing a Record of Survey when it is required (or by choice).

See...this is why I responded to David that each land surveyor needs to very carefully study the proposed language that he posted when opening this discussion. The proposed language (at least the portion that David posted) basically states that EVERY single person authorized to practice land surveying and who is employed by a public agency would be exempt from filing a record of survey.

Seriously, is there any land surveyor willing to tell the Board that surveys performed by any public agency surveyor, falling under the requirements of 8762(b), doesn't survey at least one boundary or property line which is shared with private ownership? Think about that? What is this proposed language intended to do? How does this benefit the public? Certainly not from a monetary perspective. It will just lead to an increased number of maps which ordinarily would be filed at the County Recorder, from entering the record and eventually dilute the importance of filing a Record of Survey in the first place. Is that the intent of this proposal?

[Mike Mueller]

As an aside, I really appreciate when proposed law changes are discussed here and am thankful for the discussion. Its been polite, informative and very useful. I know I have come away better informed and am aware of more subtleties.

Mikey Mueller, PLS 9076
Sonoma County

[LS9200]

Interesting that this all seems to end at the non-recording. When fees charged by the recorder are exempt for public agencies under govt. code 27383.

So, if this proposed language goes through. Does the county surveyor not have to review, sign and stamp the document since it is not a record of survey(8766)?

[Ian Wilson]

LS9200...

In the case of RSs at the county level, that is the case now and won't change. The map is simple filed in the County Surveyor's office and indexed in some fashion. At Alameda County, we have enough licensees to be able to separate the map creation and map review process to make filing a "proper" RS.

Here's one we did a few years ago:

RS3377-1.PDF

I just noticed that we never added the Certificate of Compliance information. We'll have to file an amended map.

We have four more at the Recorder

[DanFrink]

To be clear, coming from a surveyor who works at State Lands, this statement is not accurate. I can't speak for the other agencies, but I can speak for ours and say that we most certainly do NOT use this as justification to NOT file a ROS. We have, in the past, used it as a way to avoid the checking fees. Weather I agree with the code language or not, it's there and available. I just wanted to make sure we were clear here, that not all agencies are using this as a way to skirt around fling a map for record when a ROS is triggered. I do find Ric's comments about how the board views this interesting, and this is something our staff will have to discuss.

Couple points of clarification: the parallel “County Surveyor filing” system serves no one and complicates research. Is this 1939 law an effort to save on recorders fees or plat paperspace? This caveat is outdated and should be removed from the code.

Over the years, I have heard garden variety Caltrans, Calfire and SLC land surveyors (probably not public officers) use this clause as justification for their failure to file surveys. My understanding is that they have all generally convinced themselves that they do not have to file under the same circumstances as a private LS. This practice defers the liability burden of mapping their work and filing records on the general public (and private surveyors).

Thank you for the explanation Mikey! Please note that PGE is not a public agency. Are there other “public officers” from somewhere besides state agencies who are supporting this legislation?

I have no interest in the review fee conversation. I feel that all of the survey review costs should be subsidized in order to encourage more filings.

If I was a public officer and cared so much about saving those fees then I suppose that I could always supervise the survey and stamp the map myself, regardless of the contractor performing the field survey….

[CBarrett]

Side point of information:
Could we perhaps agree to make a finer point distinction between words ESTABLISH and RETRACE.

To establish is to create new boundary lines via legal subdivision - only subdivision maps and a sundry variety of processes (LLA) can ESTABLISH a boundary line, legally and on the ground.

Everything else is a RETRACEMENT.
Records of survey retrace established boundaries, they don't create new ones. Official maps don't Establish (create) boundaries, they retrace existing. Only thing that can be remotely considered establishment in a record of survey is setting a new monument on a line that we retraced, but I prefer to say "position recovered, or position retraced ~ and monumented ... "

Both, Black's law dictionary and Merriam webster (used more colloquially) lean in this direction of making the distinction between the two words. There are some minor instances where case law accepted the interchangeable use of these words, however, I strongly believe that the best practice would be to train ourselves and others into making this distinction clear.

Thanks!

[CBarrett]

Could someone please explain to me why public agency surveyors should be allowed to establish boundaries without filing a record?

Board of Directors meeting was held virtually on April 27, 2024 via Zoom:
a. The Legislative Committee requested, and the Board of Directors approved, the following
suggested modified language for Business & Professions Code 8765, 8766 and 8766.5
(Record of Survey Exemptions):
i. 8765. A record of survey is not required of any survey:
(a) When it has been made by a public officer in his or her official
capacity, or a licensed land surveyor employed by a public
agency, and a reproducible copy thereof, showing all data required
by Section 8764, except the recorder’s statement, has been filed with
the county surveyor of the county in which the land is located. Any
map so filed shall be indexed and kept available for public
inspection.

Because everything a public agency or their assignees do is required to be of public record already, indexed and available for use to the private surveyor (the public). I forget which code snippet governs that I don't have them all memorized. There is no significant benefit to filing things in two places, other than an increased cost to taxpayers.

In practice, this has resulted in no uniformity, many different locations and flavors on how agencies store, index and go about making their survey records publicly available - making it more difficult on the private surveyor to learn all the different systems, contact points and nomenclatures - this slightly increasing the cost to public, at least when it comes to performing private surveys in a number of jurisdictions.

I don't know how much savings to taxpayer happened on the agency side, with running several internal indexing systems, and changing them every few decades. LA County is an example of more complex ones that kept evolving over the years. But I digressed...

As to the currently proposed language, it may have stemmed from county surveyors and caltrans being stuck between rock and a hard place, where caltrans or their on call consultant wants to file a record of survey, and they are exempt to paying checking and filing fees. On the other hand county surveyors are not always at liberty to waive filing fees for another agency due to a set of competing/conflicting laws and ordinances elsewhere. At times this results in a standoff between two laws and their interpretations, and one agency unable to get funds approved to pay for a fee, and the other agency unable to accept the RS for checking unless the fee is paid.

It is an unintended consequence of existing ered tape which needs to be cleared up and addressed. Sometimes known as housekeeping legislation refinement. The original intent and is not to be changed, but the language is being refined to clean up unintended complications.

As far as avoidance of payment of fees, this is a misconception. Both county and caltrans are by large funded by taxpayer money. Long time ago it was decided that there is no need to add additional red tape of transferring taxpayer money from one bucket to another by collection small fees between agencies that have originally come from the same state or a federal fund. It is an attempt to operate more efficiently. (IE. Husband borrow $50 from a wife during an outing, but all of their money sits commingled in a joint account and the original $50 came from that. There is no need for him to go through the trouble of withdrawing $50 from a joint account and pay her back. Even though each may carry some cash in their own wallets.)
When the project is not funded by taxpayer money (agency, for example) the map checking fees and all development costs are paid by the land developer - (even if it's just a lot survey). Completely different financials.

Some counties have, erroneously without input from affected disciplines, enacted full cost recovery from all who submit Records of survey, neglecting the fact that other agencies are exempt from having to take extra time and effort of shuffling taxpayer money back and forth between agencies. Every time you touch the money, you incur administrative costs on both ends, in addition to technical review costs.

[DWoolley]

...
Here's one we did a few years ago: RS3377-1.PDF
...

Recommend that buildings tied to the boundary lines should have ties in two locations. As shown, it is indeterminate whether or not the building is parallel with the boundary or the distance shown is at a precise location. If the dimension is at a precise location the tie to the building needs a tie to the block corner in addition to the tie to the building. Building materials (concrete), height or stories (4), well done.

The centerlines are close to 90 degrees - as a matter of practice, the centerlines should be tied to the block lines. The block lines are "floating". Suspiciously accurate to see four monuments on a perfectly straight line in several locations. Map would be enhanced with an accuracy note.

Is there a standard plan for a "monument well pin"?

Nice looking map.

DWoolley

[David Kendall]

Side point of information:
Could we perhaps agree to make a finer point distinction between words ESTABLISH and RETRACE.

To establish is to create new boundary lines via legal subdivision - only subdivision maps and a sundry variety of processes (LLA) can ESTABLISH a boundary line, legally and on the ground.

Everything else is a RETRACEMENT

Great topic for a different thread. I have been pondering this lately and looked up the definitions yesterday, coincidentally….

I understand your point and it is valid. Based on a recent Surveyor’s Hour podcast I heard, I believe that Jeff Lucas would agree with you but for slightly different reasons. He says that the land owners establish the boundaries over time through their use and enjoyment, we simply mark the lines for them.

I personally don’t find the distinction to be significant and the clients as well as the business and profession code seem to agree with me

I would love to hear a legal opinion on this but it may be considered technical minutiae