California Surveyors Forums

I was looking through the enforcement cases and ran accross one where a surveyor failed to find a monument and the Board's interpretation was that was a "material change" and an RS was required (8762(b)(1). I thought to myself - does that mean if I search all four corners of a lot and don't find a single monument, that I now have to file an R/S showing "searched - not found" at each corner location.

Sounds like a stretch to me, but its something to ponder.......


Michael Stanton, PLS5702

Do you have a link to the full complaint? I know I could find it myself eventually, but I don't have time today and would like to discuss it at the Chapter meeting tonight.

Thank you
Jay

a surveyor failed to find a monument and the Board's interpretation was that was a "material change" and an RS was required

Taken by itself, that's a bogus interpretation of the statute -- a missing monument doesn't constitute a material change. There may be other aspects of the respondent's survey that warrant discipline, but this one is just piling on.

This must be a misunderstanding or out of context cause NO WAY

5b. The loss of the monument at the southern boundary of the Olson and Funkhouser properties constitutes a material change within the meaning of section 8762, subdivision (b)(1), and required the filing of a record of survey.

5c. Respondent set a line at the conclusion of the January 2005 survey that differed materially from the position established in several recorded survey maps, which required the filing of a record of survey pursuant to section 8762, subdivision (b)(4).

It would be good to read the entire action. Please post a scan or link.

IMO 5b and 5c are not connected, they are separate charges. Therefore I don't agree with 5b requiring a RS.
Did the board ignore the corner record option?
Since material discrepancy has never been defined it's open to interpretation and if the reviewing body doesn't like you anything could be a material discrepancy.

It's difficult to say when 5b is taken by itself. Was the line mentioned in 5c one that had the corner position mentioned in 5b as one of its end points? If so, and since that line differed materially from previous records, what did the respondent use instead of the monument that was not found to define that end of the line? If the respondent used something else to define a materially different position, then the statement in 5b is incomplete in that the material change would be the fact that the record mon was missing together with the fact that some other form of evidence was used to define a materially different position for the corner.

5b taken by itself is simply incorrect. The simple loss of a monument can be documented on a CR if it's replaced with a monument of a different character or description. Something more than the discovery that a monument is missing needs to occur to require either a CR or a RS.

HOWEVER... By my reviews of several recent or fairly recent enforcement cases, it has become apparent that many of the "expert" consultants the Board has been using are not expert enough to properly interpret the statutes they are charged with determining whether violations have occurred for. Not knowing who the expert consultant is in this case, I would be mildly surprised, but not shocked if it was the expert consultant's opinion that the mere absence of a record monument would be properly interpreted as a RS trigger. I have seen several instances of the "expert" adding his/her own interpretation of what the law should include, or not considering the full text of a statute and thereby omitting important parts of it.

The missing monument is not material change. Of course one could say that it "does matter" and therefore material. That's a stretch. The fella's line that he laid out was in a much different place than the previous position of the line, now that's material and a RS should have been filed.

One could also say that the missing monument ".......is physical change which in whole or part doesn't appear on any blah, blah, blah....."

Not a whole lot of surveyors are gonna go along with that interpretation, cause then they are gonna have to be filing a lot of maps. But is that a bad thing (as long as you get paid for it)?

Physical change is defined in the little booklet "Guide to the preparation of Record of Surveys and Corner Records" which was put out by some "power that is" and they defined it in relation to topography, which I find is a stretch since most, like 99.99 percent of all the Record of Surveys,subdivision maps, parcel maps,(that I've seen) don't show any topography. The only thing that is described on these maps that is physical in nature are the monuments. Maybe that's a stretch also. The GLO and BLM maps may have topography on them and those are covered in 8762(b1).

That portion of the PLSA has been in the books a looooonnnnnnngggggg time. I wish that term was defined back then when it was placed into the law. But maybe that's another thread.

And besides there isn't any verbiage like "material change" in the plsa. There is "material evidence", "physical change", "material discrepancy", "materially alternate positions", but nothing like "material change". Maybe since the words "material" and "change" exist in the PLSA act, although not used together, then it stands to reason that that one could just put the two words together and make "material change" a RS trigger. BWTFDIK.

the guide to the preparation of records of survey and corner records prepared by the county engineers association of California gives the following definitions.
page 9
"Material Evidence" has been defined as evidence of sufficient import as to effect the outcome of a court case, and includes, but is not limited to , the particular items mentioned in section 8764 of the plsa. this section requires that the record of survey show monuments both "found" and "set", however, the resetting of a previously recorded monument which has become dilapidated would not in and of itself require the filing of a new record of survey but merely a corner record. As long as the purpose and functional identity of the previously recorded monument is maintained by the new monument, and as long as the record (of the monument) is not abrogated ( six bit word for cancel or to put an end to) by the new monument, there would be no need for a new record of survey.

"Physical Change" would apply to topographic or landmark features of importance to the survey which, if not noted, may adversely affect the interpretation of the survey. In regard to monuments, physical change would include the discovery of any evidence pertinent to a monument (except as discussed above) which differs from the previous existing record of said monument.

There you have it. I looked for the monument, it wasn't there. I found evidence that the monument wasn't there which differs from the previous existing record of said monument in that the previous record said there was a one inch pipe there tagged LS 1069.

Maybe one of you guys or gals would say to me that I didn't find any evidence cause I didn't find the pipe, I found nothing, so is nothing evidence? Just something to ponder or not.

Can't anyone find this document? It is public record.

mbstanton has it near as I can tell.

My point here is not to publicly embarrass the surveyor who was the subject of the complaint. I just copied a single page out of the complaint for discussion purposes. I just thought it was interesting that NOT finding a corner was considered a "material change" sufficient to trigger an RS.

Mike Stanton, PLS

I just thought it was interesting that NOT finding a corner was considered a "material change" sufficient to trigger an RS.

Sounds like our courts, using personal opinion instead of the law.

Evan Page hits the nail on the head with his comment relating to state "experts". On the state application form there is room for about 2/3 of a page for background qualifications ! Then an oral interview. That is the qualifying process.

We all know the stated goal of the Dept. of Consumer Affairs, of which Borpelsg is one of many departments, is the highest goal; protection of the public. It has been my observation after having access to complete information on a number of cases from surveyors who have confidentially provided their file to me, that this unfortunately has led to the actual practice of "shooting first and asking questions later",ie., you are guilty until proven innocent. It is also my observation that the right questions are diligently asked during the in depth citation appeal hearing, or "informal hearing", as the state calls it. All this after the bullet has been fired through the heart of the licensed land surveyor.

Other states do not rely on the opinion of one "expert". There is always a panel of 3 or 5 experts who make such decisions by majority vote.
Apparently there is not sufficient budget that would allow a TAC panel in this state to analyze more than a limited number of cases. I don't know.
I have found it incredible that land surveyors in this state have not organized to change the way Borpelsg operates regarding this subject.

The head of Borpels told me in a hallway (no tape recording going as during the hearing) regarding the citation process; "sometimes we make mistakes, think of it as a dismissed traffic ticket". We should all give him cudos for total honesty anyway.

"Respondent was obligated to file a record of survey to notify the county surveyor under 8762 subsection (b)(1) since the fact that a monument on a line has been lost is a physical change. Further, Respondent knew the parties intended to build a fence on the boundary line, potentially destroying one or both monuments on that line."

"Respondent is subject to disciplinary action under section 8771 in that between approximately December 2004 and July 2005, in the course of providing land surveying services, on the ***** Property Respondent did not at any time set durable monuments."

"Failure to Notify Clients of Potential Lot Line Adjustment
Because the boundary line established by Respondent does not occupy the location of the south line of the parcel described in the deed to ***** as established by previous surveys of record – Respondent was obligated to notify both clients that said boundary line might be in violation of the Subdivision Map Act, in that it might constitute a lot line adjustment, requiring a ruling from the county surveyor."


http://www.bpelsg.ca.gov/public/l--4597_dec949.pdf

EDIT 8/6/15: The link above is posted to enable an informed discussion of the board's ruling. The document is a public record authored by the government, and therefore it is not copyrighted.

page 7 paragraph 35
"once he failed to file a RS with the county...............he was obligated to file a RS that would place others on notice of the change.."

page 9 paragraph 5b
"the loss of the monument at the southern boundary...........constitutes a material change within the meaning of section 8762........."

I have always thought that I was the only one who had this weird/different take on physical change in that NORMALY the only thing that is described with a "physical nature" on subdivision maps and records of surveys are the monuments-one inch iron pipe, granite stone, lead tack and 3/4 diameter brass disc. Granted government surveys show trees and structures and gulleys and knolls and hills as well as the stones and posts that were set.

What does "physical change that doesn't appear on a map of record" mean. Whatever you think it means, be careful, cause there is the world as it is and the world as I would have it to be, but unfortunately these are not necessarily the same.

on page 7 paragraph 32
"..was required to verify the existing monument at the souther end or file a RS indicating his FAILURE TO FIND the monument.."

boy!!! Failure to find turned into failure to file.

I strongly disagree that a monument of record which is not found is a material change contemplated by 8762. If that were so, the CR would be an insufficient document for its statutorily stated purpose.

Had the respondent in that case re-established either of the lines correctly, since the missing monument was one end of one of those lines, it is quite likely that he would have encountered one or more RS triggers.

If durable monuments did not exist that were sufficient to identify the lines in the field, then the respondent was obligated to set them. He set lath on line, and from what I can tell, there was at least one missing monument needed to identify the line. In that case, he was obligated to set a durable mon. However, I've seen at least one case where a surveyor, instead of setting a new monument, used an existing one that was nearby in an incorrect location as a reference monument to the corner he determined. It seemed a perfectly reasonable thing to do under that particular set of circumstances, but the BPELSG expert opined that anytime one performs a boundary survey, the surveyor is required to set durable and properly marked monuments, also opining that if you accept a monument, you are required to place your tag on it.

If that were the case, I know of several monuments that would look like brass Christmas trees for all the different tags that would be hanging off them. Also if it were true, I and thousands of other surveyors would be guilty hundreds or thousands of times over of violating this supposed requirement.

I didn't read anywhere in Decision L-4597_dec949 where the respondent was attempting to establish a new boundary line. Admittedly, I read through it pretty quickly, so I may have missed it, but it seemed that he thought in each case that he was setting stakes on already existing boundary lines. It's apparent that he demonstrated both negligence and incompetence in his re-establishment of the lines, but a line being staked in an incorrect location cannot be interpreted as attempting to establish a new line, therefore it can't be a violation of the SMA or an attempted LLA. Also, an LLA is an exemption to the SMA, so characterizing an attempted LLA by improper process as a violation of the SMA would be incorrect.

There was plenty in that case to clearly demonstrate various levels of negligence and incompetence. These (at best) questionable charges are merely pile-on that is at least not necessary, and more likely incorrect and improper.

bruce hall wrote:What does "physical change that doesn't appear on a map of record" mean

In an attempt to make it concise, the choice of words and phrase construction used in the list of ROS triggers becomes confusing, ambiguous, and open to interpretation. The law is written by lawyers for lawyers, and it is a minefield for us users who have to live by it.

TLDR version: KISS

"Further, Respondent knew the parties intended to build a fence on the boundary line, potentially destroying one or both monuments on that line."

Another ROS trigger: Foretelling fence construction!

I thought it was legal to stake a fence line without triggering a R/S.
If a surveyor finds CL mons and sets a red X on PL prod or o/s to PL prod and turns an angle that he feels puts him on or parallel to PL and sets the fence line stakes - where does that trigger an R/S?

I heard a surveyor did that in Livermore on East Avenue and lost his license over it.

Obligation to set ?? see 8771 - monumentation (a) Monuments set shall be sufficient in number and durability....

Where does the above verbage require the land surveyor to set monuments ? The language is hypothetical; IF you set them, they must be sufficient, durable,etc., as in no wood hub and lathe, for example.

I find it incredible and difficult to accept if Borpelsg is actually citing land surveyors for not setting monuments. Then all of us have been violators at one time or another; for example, on a strictly topo survey that has a missing lot corner. Borpelsg needs to reconsider the consequences of their actions when they make such decisions.

People forget; due diligence is a two-way street. We are expected to practice with due diligence. As such, Borpelsg also needs to practice due diligence in not interpreting this section unrealistically.

By the way, how many licensed land surveyors know there is a separate complaint form to file regarding actions and or behavior by state employees, ie., Borpelsg personnel ? Again, the complaint process is a two-way street, not a one-way street. Should we not expect high standards from our civil servants ? We pay for them handsomely; look up the posted salaries.

Giving them the benefit of the doubt ( I can only hope they do the same for us), they may have a very reasonable explanation but are unable to respond or clarify on this forum, since it was a board action.

Well there is a fella here in Huntington Beach that has been surveying downtown for 30 years. He doesn't set property corners, just offsets thereto. According to him these points are for construction, which is what is going to happen with these points. He usually does not set any property corners so nor Corner Record required. No corners set so the stuff he sets doesn't have to be durable, although some folks would argue that the offsets had to be tagged according to the law. Anyway this is off topic.

I think the administrative law judge who put forth this ruling was way off base with regards to having to file when a monument is missing, although the letter of the law may support him(physical change). The AG just added that charge hoping that if he threw more than one charge against the surveyor, one at least stick to the wall, although it looks like there was more than enough bad stuff that the fella respondent committed.

Bruce

we can bet our boots that if anyone contacts Borpelsg with a complaint about his "practice" of setting offsets to lot corners, and filing NOTHING, they will hopefully slam him and deservedly so. Most people would agree with a citation for that; how is that not a circumvention of the code.

That is one instance where I would approve of Borpelsg's practice of shooting first and asking the relevant questions later at the hearing.