Designated Remainder

[PE_PLS]

Calling on all you county surveyors out there.....I need your opinion

I have a question about the development of a designated remainder parcel. I have a client who 15 years ago bought 160 acres of land. In 1994 the client filed a tentative subdivision map to cut up 80 acres into 18 lots with a DR for the remaining 80 acres. The tentative map subsequently expired and my client then sold all 160 acres of land to someone else with the following agreement: When that someone else subdivided 80 acres he would return the area noted as DR back to my client. Zoom forward to 2002.

In 2002 the new owner filed a tentative map that was almost exactly the same as the one filed in 1994 that expired. The tentative map was approved, improvements constructed and a final map recorded. A requirement that a Cert. of Compliance be recorded for the DR was also put into effect. In 2007 the Final Map records for the 80 acres and the new owner then transfers back the DR to my client.

In late 2007 my client then applies to subdivide the DR into another 15 lots. Due to tighter land use controls the county tells us all we can no longer subdivide at the density of the first 80 acres and all we can get out of the DR is 4 parcels.

Enough history, here is my question: The county surveyor is requiring us to file a tentative subdivision map because this was a DR on a subdivision map. Is this reasonable?

I understand that we are using the DR outside of its original intentions in the subdivision map act because we are trying to develop the DR. But I don't think that in anyway we are trying to subvert or circumvent the SMA for the following reasons:

1. The original 80 acres was cut up into 18 parcels using a final map. It wasn't cut up into 4 parcels and then recut up several times.

2. The DR is subject to different land use requirements since we can only get 4 parcels out of it. If we could get 5 we would be happy to file a subdivision map.

3. On behalf of my client I know that there was no intent to get around any requirements, but in hindsight the DR should have been Lot 19 on the original map.

The 2 reasons we don't want to do a subdivision map on the DR is because the improvement requirements are much different and also because we don't want to go through the DRE process.

My final question is to the County Surveyors out there: Do you think that even though the intention of the party wasn't to get out of any requirements that you would hold fast to this and require a tentative subdivision map be approved?

I've also attached a rough sketch so you can get an idea of what we're proposing

[Ian Wilson]

I’m not a county surveyor, of course, but, I would offer the following:

The Tentative Subdivision Map your client had prepared and processed in the ‘90’s does not constitute a subdivision. It is merely permission to subdivide the land under the configuration of the TPM and the conditions attached to it by the local jurisdiction. The subdivision does not occur until the Parcel Map is approved and recorded.

Since the actual subdivision of the property was done by another, your client should not be affected by the process under which the 160 acres was subdivided. Your client should be subject to the provisions of the Subdivision Map Act and be eligible to file a Parcel Map for his current project.
On the other hand, because a contract was in place for your client to receive back the 80 acres he now wishes to develop, it is conceivable that your client could be viewed as a party to the original subdivision. In that case, your client would fall under the requirements to file a Tentative Map and a Final Map.

The reference to dividing into four parcels and then four more parcels, known as 4X4’ing, is just a concept. Any attempt to subdivide with the intent to further subdivide one of the lots falls under this illegal act. Four parcels each time are not necessary.

Even if the DR was subdivided as “Lot 19” of the previous subdivision, it is conceivable that your client would still fall under the requirements to file a Tentative and Final Map for the current project. The decision swings on the status your client falls into based on the contract for sale of the DR, whether it was a DR or “Lot 19”.

Now, where’s Dave Ryan and some of the other CS?

[PE_PLS]

By the way Ian, thanks for your response.

Does it make any difference that the DR can only be cut into 4 parcels because of planning restrictions? My guess is it doesn't but I thought I would ask.

Secondly, the original parcel in question of 160 acres was actually a portion of 2 separate original patents, one from 1891 and the other from 1901. Would that have any affect on the questions I've asked? I've attached a copy of the MT plat from the BLM to show what I'm talking about.


And relating to the matter of intent.....
As you state Ian it is an intention to subdivide and then resubdivide to circumvent the 5 lot or more subdivision map process that is the crux of the issue.

My client sold the land to another party with full agreement between the two parties that my client would receive back the DR. Once my client sold the land to the first subdivider he was not in any way a part of the subdivision process. Does that make my client a party to the first subdivision only because there was an agreement to receive back the DR after the subdivision?

The county surveyor says yes because there was no documentary transfer tax (ie nothing was paid for the DR). Is a documentary transfer tax proof that my client was a party to the subdivision? Is there any way to argue this?

[PE_PLS]

As you state Ian it is an intention to subdivide and then resubdivide to circumvent the 5 lot or more subdivision map process that is the crux of the issue.

My client sold the land to another party with full agreement between the two parties that my client would receive back the DR. Does that make my client a party to the first subdivision?

The county surveyor says yes because there was no documentary transfer tax (ie nothing was paid for the DR)? Is a documentary transfer tax proof that my client was a party to the subdivision? Is there any way to argue this?

[subman]

Some questions...

Who paid the property taxes on the entire 160 acres from the point of sale until the 80 acre "remainder parcel" was conveyed back to your client? As a County engineer/surveyor, I would be suspicious and would probably want to see a significant amount of documents, including a copy of the sales contract. I would also be interested in how the Title Company viewed your clients interest in the 160 acres after the sale closed.

At the end of the day, with the facts provided, it could be argued that all your client really did was sell half of his 160 acre property without complying with the Subdivision Map Act.

What recourse would your client have had under the sales contract if the buyer decided not to subdivide a portion of the property, but to lease it all to an agriculture interest for a substantial period of time where no "remainder parcel" was created to sell back to your client.

It sounds like the price of the entire property was discounted and only based on the value of 80 acres as opposed to a fair market value of 160 acres. I would be asking my County Counsel to offer an opinion.

[dmi]

I am not sure I buy the CS rational for a tentative and final map on the so called DR. It seems as if your client always intented to subdivide the DR. If that is the case then the designation of the Parcel as a DR was never really an appropriate use of the map act.

Generally there are less exactions and conditions placed on a parcel map versus a final map, but not by much when we are talking about small subdivisions. If the goal is to get the property subdivided and sold, then it is probably best(efficiently pragmatic) to give the local agency what they are asking for to approve the subdivision.

I see no basis in your arguement that would convince a local agency to allow you to do a parcel map when a final map is required. You may want to take a look at the Bright case that has been refered to in a recentist AG opinion as still being good law.

Basically, what happened is Bright did a parcel map, later he married and his wife owned land adjoining, Bright's newly subdivided land. Later they wanted to do a parcel map on the land the wife brought to the marriage.The local agency counted the parcels of the previous map so they the Brights would be required to do a final map and not allowed to do a parcel map.

A subdivides via a parcel map and creates an DR. A sells to B (B is not related to A by previous agreement or in anyother fashion, a wholly owned subsidiary for example) B can subdivide via parcel map. If B is connected to A in any fashion rules barring 4x4 ing would apply. There are some jurisdictions that are clueless about this and they allow 4 x 4ing all the time. There was a case involving the LA county regional planning department that had allowed 4 x 4 ing that resulted in 10,000 illegal parcels.

[Gary O]

Technically, the DR is not a part of the map. The DR "cannot be created for the purpose of sale lease or finance" so I think we all agree that it should have been Lot 19.

The question that triggers the AG opinion covering 4x4ing is "Was the present developer a party to the first map". Because he absolutely was a player in the first map those lots should be tacked on to what he develops on this parcel to determine whether it's a major or minor subdivision.

I agree with the CS in requiring a Final Map for this project.