California Surveyors Forums

Hello Wise Ones...

Here is the deal: the original plan was to record a 3 parcel map where parcels 1 and 2 are multi-family residential and parcel 3 is for condo purposes. After the map records, the client would then process a condo plan to split parcel 3 in two where the upper level is multi-family residential and the lower level is commercial.

Here is the problem: the map checker for the local agency suggested doing a 3D parcel map where you just split parcel 3 in two on the map and the upper portion would merge with the parcel 2 abutting it (the true intent of the owners). My thoughts are that this would not be a condominium project since CA Civil Code 1351(f) defines a condominium as consisting "...of an undivided interest in common in a portion of real property coupled with a separate interest in space called a unit..." There would not be any parcels created which will later be conveyed with undivided interest; all parcels would be sold to individual owners, no common areas.

Here is the question: is a 3D parcel map allowed in the SMA when you do not have a condominium project? I have seen it done in the City of San Diego and the map does not say condos anywhere but I would like something more to stand on than just...well, someone else did it. (FYI - we are in a city within SD County but not the City of SD)

Thoughts?

You'd still have to record all the ancillary docs for support, maintenance, access, etc.
But I would stay away from a 3-D PM unless the CLIENT wants it.
They are a pain, and RARELY do they offer any advantage over phased condos.

The following is some related information based on feedback from our County Counsel based on my question. I have changed the names of the Cities since they are not significant in the discussion.

My Question: Three dimensional parcel maps and final maps are starting to emerge in Public Works as more Cities ask us to check their complicated final maps. The most recent is City A. The City A project is being built over top of a closed landfill (circa 1965). The first phase proposal is a large two lot final map (no improvements) to establish a lot line below the ground surface at some defined elevation grid, some distance above the methane membrane sealing the landfill. The subsurface lot will be deeded to a yet to be formed entity some time in the near future, after the membrane is installed (presumably to assume liability for the sealed landfill). There are more details, but that should give you the general idea.

My concern is the only form of vertical subdivision the Map Act refers to is for condominium purposes. The common lots are detailed on the final map and a condominium map is prepared separately (not thru DPW) under authority of Civil Code 1351 to define the airspace interest.

Since the Map Act is silent on the subject, under what authority do these City's have the right to subdivide land in such a manner? I would appreciate your opinion as quickly as possible since plans will be coming in the near future.

Their Answer: A division of airspace or underground space is regulated by the Map Act. For the Map Act to apply to a particular development, it must fall under the definition of "subdivision" as provided in Gov C §66424. Under Gov C §66424, there must be a division of "any improved or unimproved land". Civil C § 659 defines "land" in part as "free or occupied space for an indefinite distance upwards as well as downwards". Accordingly, a division of airspace or underground space appears to constitute a division of land and therefore falls within the parameters of the Map Act.

Further the Map Act provides under Gov C §66411 that the "regulation and control of the design and improvement of subdivisions are vested in the legislative bodies of local agencies." This means that City A may apply its existing local ordinances pertaining to such and even create new ones to specifically address airspace and underground space subdivisions. City B has done this. Below are the relevant excerpts from the City B Municipal Code.

SEC. 17.01. TRACT MAPS - GENERAL PROVISIONS.
(d) Subdivision of Air Space. The provisions of this article shall apply to a division of the space above or below a lot with a definite width, length, and upper and lower elevation occupied or to be occupied by a use, group of buildings or portions thereof, and accessory buildings or portions thereof, or accessory uses, (Air Space Lot, as defined in Section 12.03 of this Code). (Added by Ord. No. 156,681, Eff. 6/21/82.)

LOT - AIR SPACE. (Added by Ord. No. 156,681, Eff. 6/21/82.) A division of the space above or below a lot as defined in this section with a finite width, length, and upper and lower elevation occupied or to be occupied by a use, building or portion thereof, unit group of buildings or portions thereof, and accessory buildings or portions thereof or accessory uses. An air space lot shall be identified on a final map or a parcel map recorded in the office of the County Recorder with a separate and distinct number or letter. An air space lot shall have such access to a street (as defined in this section) or private street (as defined in Article 8 of this chapter) by means of one or more easements or other entitlements to use in a form satisfactory to the Advisory Agency and the City Engineer.

JMS8070 said:
> split parcel 3 in two where the upper level is multi-family
> residential and the lower level is commercial.

Separating the commercial space out by 3D map is a good way to go, as it gets around a nasty requirement in condo / HOA law that requires one lot, one vote.

If the second split is done by condominium plan, then the commercial & residential owners will be in the same HOA, which is generally a bad idea because their interests don't coincide. Especially if the residential is cut up into condos right now (which would be rented out or leased until the the market turns around,) the disparity could be one commercial vote against 100 residential votes.