Filed 2/6/03

IN THE SUPREME COURT OF CALIFORNIA

JACK A. GARDNER et al.,
Plaintiffs
and
Appellants,
S102249
v.
) Ct.App.
1/1
A093139
COUNTY OF SONOMA,
Sonoma
County
Defendant and Respondent.
Super. Ct. No. SCV-219103

In the matter before us, an owner of property consisting of more than 1,000
acres in the County of Sonoma caused a subdivision map of his land to be
recorded in 1865, prior to the earliest origins of California?s Subdivision Map Act
(hereafter sometimes the Map Act or the Act) (Gov. Code, ? 66410 et seq.). The
plaintiffs herein own approximately 158 acres of that land and seek to establish
that their property consists of 12 lawfully subdivided parcels that may be sold,
leased, or financed in compliance with the Act. As they see it, the 1865
subdivision map should be given legal recognition under the Act because: (1) the
map was recorded and accurately described the property it depicted; and (2) an
atlas adopted in 1877 as the ?official map? of Sonoma County included the
subdivision shown on the 1865 map. The property in question has remained intact
under sequential owners throughout its history.
Our review of the Subdivision Map Act and the relevant case law leads us
to conclude that the 1865 recordation of the subdivision map did not establish or
1


create legally cognizable subdivisions for purposes of the Act, notwithstanding the
map?s claimed accuracy and its inclusion in the 1877 atlas. We therefore affirm
the judgment of the Court of Appeal.
FACTUAL AND PROCEDURAL BACKGROUND
No party petitioned the Court of Appeal to suggest that its opinion omitted
or misstated any material fact. (See Cal. Rules of Court, rule 28(c)(2).)
Accordingly, the following is taken in large part from that court?s recitation of
facts.
In May of 1865, S.H. Greene recorded a map entitled ?The Redwood Estate
of S.H. Greene? with the Sonoma County Recorder. The map purported to depict
a vast subdivision of Greene?s property, consisting of nearly 90 rectangular lots in
a grid superimposed over more than 1,000 acres of open land west of Sebastopol.
The map divided the lots into four different ranges, with 15 to 28 lots per range.
Each lot was labeled with a range number and a lot number, as well as length and
width measurements, which appear to be precise to the one-hundredth of an acre.
The Greene map identified two streams flowing through the depicted
subdivision, Salmon and Jonive Creeks, but no other geographic features. It also
reflected a county road running along the southeast corner of the grid, but showed
no interior roads, easements, access routes, drainage systems, or other subdivision
infrastructure.
No applicable subdivision map regulations existed in 1865.1 Consequently,
the Greene map was submitted and accepted for recordation without review or

1
The first statute providing statewide authorization for the formal
recordation of subdivision maps and city and town plats for purposes of lot sales
was enacted in 1893. (Stats. 1893, ch. 80, pp. 96-97.) According to one treatise,
earlier legislation had required mapping of subdivided public lands and private
lands to be sold within certain cities and towns. (Curtin & Merritt, Cal.

(footnote continued on next page)
2


approval by any public entity. The Thompson Atlas of Sonoma County, adopted
in 1877 as the ?official map? of Sonoma County for township lines and other
unspecified county purposes, showed a purported subdivision called ?The
Redwood Estate of S.H. Greene.?
Over the years, numerous parts of the Greene property were conveyed to
different parties. In 1903, the Greene family made a bulk conveyance of
approximately 352 acres to Paul Bertoli, using the Greene map for reference but
describing the conveyed property in detail using metes and bounds.
In 1990, approximately 158 acres of the Bertoli conveyance came into the
possession of Jack and Jocelyn Gardner, trustees of the Gardner Family Trust, and
Lindsay and Hilary Gardner, collectively referred to as plaintiffs. Plaintiffs?
property, located in the south-central area of the so-called Greene subdivision,
bears little resemblance to the distinctive rectangular lots depicted on the map
Greene recorded in 1865. Although plaintiffs? property includes two of the
original rectangular lots in full, its balance consists of only fragments of 10 of the
other original lots. The property, which currently is zoned by the County of
Sonoma (the County) for ?Resource and Rural Development? and 40-acre density,
includes steep slopes and is the subject of a timber harvest plan.
In 1996, plaintiffs applied to the County?s permit and resource management
department for 12 certificates of compliance with the Subdivision Map Act,

(footnote continued from previous page)

Subdivision Map Act and the Development Process (Cont.Ed.Bar 2d ed. 2001)
History, Purpose, and Preemption, ? 1.2, pp. 2-3 [citing as an example Stats. 1867-
1868, ch. 331, concerning the subdivision of lands in San Francisco].) Here,
however, none of the parties identifies any pre-1893 subdivision statute,
ordinance, or regulation that might have any relevance to this case.
3


pursuant to section 66499.35 of the Government Code.2 Such certificates would
have established that the County recognized plaintiffs? property as consisting of 12
lawfully created parcels that could be sold, leased, or financed in compliance with
the Act. (See ? 66499.35, subd. (f)(1)(E).) The department denied plaintiffs?
application, determining that the Greene map did not create legally cognizable
parcels because it was recorded before 1893, the year the Legislature enacted the
first subdivision map statute with statewide effect. The planning commission
denied plaintiffs? appeal of the department?s action, but authorized the department
to issue one certificate of compliance recognizing the subject property as a single
parcel.
Plaintiffs then appealed the commission?s decision to the County Board of
Supervisors. The board adopted a resolution upholding the commission?s action,
finding, as a factual matter, that: (1) plaintiffs? property had been ?repeatedly and
consistently conveyed as a single unit of land? since 1865 and ?generally
described in metes and bounds since 1903?; and (2) none of plaintiffs? 12
purported lots had ever been separately conveyed or separately described in a
grant deed.
The resolution further concluded, as a legal matter, that ?the creation of
parcels by the recordation of a map is a legal consequence of the Subdivision Map
Act and that therefore, only maps properly recorded under the Subdivision Map
Act or certain of its predecessor statutes can be deemed to create parcels.?
Additionally, the resolution found that ?the mere recordation of a map prior to
1893 cannot create parcels cognizable under the Subdivision Map Act.? It also
concluded that the Thompson Atlas of 1877 did not establish parcels within the

2
All further statutory references are to this code unless otherwise indicated.
4


meaning of the Act because the map had been adopted for ?administrative
purposes and served [only] as a reference tool for property descriptions and
geographic locations.? The resolution concluded by affirming the denial of
plaintiffs? request for 12 certificates of compliance.
Plaintiffs filed a petition for writ of mandate in superior court to compel the
County to issue 12 certificates of compliance for their Greene map lots. The
superior court denied the petition, essentially ruling that the Greene map did not
create legal parcels within the meaning of the Subdivision Map Act. The Court of
Appeal affirmed, holding that the legislative intent underlying the Act precludes
legal recognition of subdivision lots shown on antiquated subdivision maps
recorded before 1893.3
We granted plaintiffs? petition for review.
DISCUSSION
The Subdivision Map Act is ?the primary regulatory control? governing the
subdivision of real property in California. (Hill v. City of Clovis (2000) 80
Cal.App.4th 438, 445.) The Act vests the ?[r]egulation and control of the design
and improvement of subdivisions? in the legislative bodies of local agencies,4

3
As used in this opinion, an ?antiquated map? refers to a subdivision map
that was recorded before 1893.
4
The Act defines ?design? as: ?(1) street alignments, grades and widths; (2)
drainage and sanitary facilities and utilities, including alignments and grades
thereof; (3) location and size of all required easements and rights-of-way; (4) fire
roads and firebreaks; (5) lot size and configuration; (6) traffic access; (7) grading;
(8) land to be dedicated for park or recreational purposes; and (9) other specific
physical requirements in the plan and configuration of the entire subdivision that
are necessary to ensure consistency with, or implementation of, the general plan or
any applicable specific plan . . . .? (? 66418.)

?Improvement? refers to ?any street work and utilities to be installed . . . by
the subdivider on the land to be used for public or private streets, highways, ways,

(footnote continued on next page)
5


which must promulgate ordinances on the subject. (? 66411.) The Act generally
requires all subdividers of property to design their subdivisions in conformity with
applicable general and specific plans and to comply with all of the conditions of
applicable local ordinances. (See Hill v. City of Clovis, supra, 80 Cal.App.4th at
p. 445.)
As used in the Act, ?subdivision? means ?the division, by any subdivider,
of any unit or units of improved or unimproved land, or any portion thereof,
shown on the latest equalized county assessment roll as a unit or as contiguous
units, for the purpose of sale, lease or financing, whether immediate or future.?
(? 66424.) Ordinarily, subdivision under the Act may be lawfully accomplished
only by obtaining local approval and recordation of a tentative and final map
pursuant to section 66426, when five or more parcels are involved, or a parcel map
pursuant to section 66428 when four or fewer parcels are involved. (See John Taft
Corp. v. Advisory Agency (1984) 161 Cal.App.3d 749, 755 (Taft).) A local agency
will approve a tentative and final map or a parcel map only after extensive review
of the proposed subdivision and consideration of such matters as the property?s
suitability for development, the adequacy of roads, sewer, drainage, and other

(footnote continued from previous page)

and easements, as are necessary for the general use of the lot owners in the
subdivision and local neighborhood traffic and drainage needs as a condition
precedent to the approval and acceptance of the final map thereof.? (? 66419,
subd. (a).) Improvement ?also refers to any other specific improvements or types
of improvements, the installation of which, either by the subdivider, by public
agencies, by private utilities, by any other entity approved by the local agency, or
by a combination thereof, is necessary to ensure? plan consistency. (Id., subd.
(b).)

?Local agency? refers to ?a city, county or city and county.? (? 66420.)
6


services, the preservation of agricultural lands and sensitive natural resources, and
dedication issues. (See, e.g., ?? 66451-66451.7, 66452-66452.13, 66453-66472.1,
66473-66474.10, 66475-66478.)
By generally requiring local review and approval of all proposed
subdivisions, the Act aims to ?control the design of subdivisions for the benefit of
adjacent landowners, prospective purchasers and the public in general.? (Hays v.
Vanek (1989) 217 Cal.App.3d 271, 289 (Hays).) More specifically, the Act seeks
?to encourage and facilitate orderly community development, coordinate planning
with the community pattern established by local authorities, and assure proper
improvements are made, so that the area does not become an undue burden on the
taxpayer.? (Gomes v. County of Mendocino (1995) 37 Cal.App.4th 977, 985
(Gomes); see also Hill v. City of Clovis, supra, 80 Cal.App.4th at p. 445.)
As relevant here, the Act provides that any property owner may request a
determination from the appropriate local agency as to whether his or her property
complies with the Act and applicable local ordinances. (? 66499.35, subd. (a).) If
the property is found in compliance, the agency shall cause a certificate of
compliance to be filed for record with the recorder of the county where the
property is located. (Ibid.) When parcels are validated by certificates of
compliance, they ?may be sold, leased, or financed without further compliance
with the Subdivision Map Act or any local ordinance enacted pursuant thereto.?
(? 66499.35, subd. (f)(1)(E).) Conversely, if the property is found lacking in
compliance, the local agency shall cause the filing of a conditional certificate of
compliance, imposing conditions that the owner must fulfill. (Id., subd. (b).)
For purposes of the Act, ?[a] recorded final map, parcel map, official map,
or an approved certificate of exception shall constitute a certificate of compliance
with respect to the parcels of real property described therein.? (? 66499.35, subd.
7


(d).) Here, however, no such map or approved certificate of exception has ever
been filed or recorded for any of the property in question.
The map Greene recorded in 1865 is not a ?final map? or a ?parcel map,?
which are statutorily defined to include only those maps that have been reviewed
and approved for recordation by a local agency under the provisions of the Map
Act or a local ordinance adopted thereunder. (See ?? 66433-66443 [content and
form of final maps], 66444-66450 [content and form of parcel maps], 66451-
66451.7 [procedures for processing tentative, final, and parcel maps], 66456-
66462.5 [final maps].)
Nor does the Greene map qualify as an ?official map.? (? 66499.50 et seq.)
Under the Act, an official map refers to a map of a city, town, or subdivision of
land prepared by a city engineer or the county surveyor, ?under the direction and
with the approval of the city council or board of supervisors,? or prepared by ?any
surveyor or engineer, under the review of the city engineer or county surveyor,?
pursuant to specific provisions of the Act. (? 66499.52, subds. (a), (b).) That the
Greene subdivision was reflected in the Thompson Atlas appears of no
consequence. Although the County Board of Supervisors apparently adopted that
atlas in 1877 as the ?official map? of Sonoma County, the record shows it did so
for reference to township lines and other unspecified county purposes.5 Plaintiffs
have not attempted to establish that the atlas was prepared and adopted as an
official map pursuant to the Act?s specific provisions.

5
The record, we note, contains no indication that the County ever treated
plaintiffs? property as 12 separate parcels for purposes of assessing property taxes.
8


Finally, the Greene map is not a ?certificate of exception? within the Act?s
contemplation. As statutorily defined, such certificates were authorized only
between 1967 and 1972, and only in the County of Los Angeles. (See ? 66422.)
In sum, the map Greene recorded in 1865 does not itself qualify as a
certificate of compliance under the Act because it is not a ?recorded final map,
parcel map, official map, or an approved certificate of exception.? (? 66499.35,
subd. (d).)
Plaintiffs argue, nonetheless, that the Map Act contains two ?grandfather?
provisions ? section 66499.30, subdivision (d) and section 66451.10, subdivision
(a) ? that support legal recognition of the already subdivided nature of their
property and compel the issuance of the 12 requested certificates of compliance.
We address these provisions in order.6
To enforce its important public purposes, the Act generally prohibits the
sale, lease, or financing of any parcel of a subdivision until the recordation of an
approved map in full compliance with the law. (? 66499.30, subds. (a), (b), (c).)
Subdivision (d) of section 66499.30 (section 66499.30(d)) provides, however, that
these prohibitions ?do not apply to any parcel or parcels of a subdivision offered
for sale or lease, contracted for sale or lease, or sold or leased in compliance with
or exempt from any law (including a local ordinance), regulating the design and
improvement of subdivisions in effect at the time the subdivision was established.?
In turn, section 66412.7 specifies that for purposes of this exception, a subdivision
is deemed ?established . . . on the date of recordation of the final map or parcel
map, except that in the case of (1) maps filed for approval prior to March 4, 1972,

6
Plaintiffs also make a passing reference to section 66412.6, but offer no
analysis or argument supporting its application here. Accordingly, we refrain
from addressing that provision on the ground it is not properly raised.
9


and subsequently approved by the local agency or (2) subdivisions exempted from
map requirements by a certificate of exception (or the equivalent) applied for prior
to such date and subsequently issued by the local agency pursuant to local
ordinance, the subdivision shall be deemed established on the date the map or
application for a certificate of exception (or the equivalent) was filed with the
local agency.?
Did the 1865 recordation of the Greene map establish a subdivision under
the Act?s provisions? (? 66412.7.) The answer to this question is no. As earlier
discussed, the Greene map is not a final map or a parcel map (see ?? 66433-
66443, 66444-66450, 66451-66451.7, 66456-66462.5) and is not a certificate of
exception (see ? 66422).
Nor was the Greene map ever ?filed for approval? or ?subsequently
approved? by a local agency as section 66412.7 contemplates. Because section
66499.30(d) recognizes only parcels or parcel sales that were made in compliance
with or were exempt from the provisions of any law ?regulating the design and
improvement of subdivisions in effect at the time the subdivision was established,?
the logical inference is that section 66412.7?s required approval for maps filed
before March 4, 1972 must likewise be related to subdivision design and
improvement. Reasonably read, sections 66499.30(d) and 66412.7 protect
subdivisions that either already were approved by local agencies, or were deemed
exempt under previous subdivision laws in effect at the time the subdivisions were
established.
Before 1893, however, there was no statewide mechanism generally
authorizing local agencies to review or approve subdivision maps. And in 1865
there was no other subdivision statute, ordinance, or regulation specifically
authorizing public agency approval of subdivisions in Sonoma County. Perhaps in
light of these factual circumstances, plaintiffs rely on Lakeview Meadows Ranch v.
10


County of Santa Clara (1994) 27 Cal.App.4th 593 (Lakeview) to argue that section
66499.30(d)?s application to parcels that were ?exempt from any law . . .
regulating the design and improvement of subdivisions in effect at the time the
subdivision was established? (italics added) includes application to parcels that
were ?not subject to? the provisions of any law regulating subdivisions at the time
the subdivision was established. In other words, they contend, section
66499.30(d) should be construed to include subdivisions predating the enactment
of any applicable subdivision law. (See Lakeview, supra, 27 Cal.App.4th at p. 599
[concluding that ?exempt? and ?not subject to? have essentially the same
meaning].)
Even assuming, for sake of argument, that the statutory phrase ?exempt
from? may be construed to mean ?not subject to,? plaintiffs cannot demonstrate
that recordation of the Greene map in 1865 lawfully ?established? the claimed
subdivision for purposes of section 66499.30(d).
As noted, the first California act providing statewide authorization for the
formal recordation of subdivision maps and city and town plats for purposes of lot
sales was enacted in 1893, long after the Greene map was recorded in 1865.
(Ante, fn. 1.) That early act established standards for mapping by requiring
accuracy of maps, identification of public roads and common areas, and
specification of each lot?s precise length and width. (Stats. 1893, ch. 80, ? 1, p.
96.) Owners were required to acknowledge subdivision maps and to file them in
the county recorder?s office prior to sale of the mapped lots. (Id., ?? 2, 3, p. 96.)
The act made it a misdemeanor for any person to ?sell[], or offer[] for sale, any lot
within any city, town, subdivision, or addition, before the map or plat thereof is
made out, acknowledged, filed, as herein provided.? (Id., ? 4, pp. 96-97.)
Violators were subject to fines and imprisonment in the county jail (ibid.), and the
act specified no exceptions.
11


Notably, however, no state or local legislation authorized the establishment
or creation of subdivided parcels in Sonoma County by map recordation before
1893.7 Although plaintiffs cite a number of judicial decisions for the proposition
that subdivision maps recorded before 1893 resulted in the legal creation of
parcels under the common law, those decisions merely recognized the principle
that subdivision maps could properly supply the legal description of property
conveyed by deed. (E.g., McCullough v. Olds (1895) 108 Cal. 529, 531-532;
Cadwalader v. Nash (1887) 73 Cal. 43, 45; see also Masterson v. Munro (1895)
105 Cal. 431, 433-434.)
Contrary to plaintiffs? suggestions otherwise, case law indicates that, where
an antiquated map was not recorded pursuant to any subdivision statute,
ordinance, or regulation, a subdivided lot shown on that map generally enjoyed no
independent legal status until the owner actually conveyed the lot separately from
the surrounding lands through a deed or patent.8 (See Lakeview, supra, 27
Cal.App.4th at pp. 596-598 [1891 federal patent that conveyed title to Southern
Pacific Railroad created a parcel]; Hays, supra, 217 Cal.App.3d at p. 289
[grandfather provision of 1929 version of Act not applicable to later purchasers
whose property had never been sold in subdivided form]; Taft, supra, 161

7
Certain amici curiae in support of the County assert that only maps
recorded under the 1929 predecessor to the Map Act or subsequent map statutes
legally created parcels. (Stats. 1929, ch. 837, pp. 1790-1805; Hays, supra, 217
Cal.App.3d at p. 289.) Conversely, the California Attorney General has opined
that maps recorded under earlier predecessor statutes to the Act should also be
deemed to create parcels (74 Ops.Cal.Atty.Gen. 105 (1991)). We need not resolve
that dispute in this case, for the map at issue here predates the earliest predecessor
statute enacted in 1893.
8
A patent is a deed of the United States, the conveyance by which title to
portions of the public domain is passed. (Gomes, supra, 37 Cal.App.4th at p.
983.)
12


Cal.App.3d at pp. 756-757 [United States Survey Map filed in 1878 pursuant to
federal law did not subdivide land for Subdivision Map Act purposes]; People v.
Byers (1979) 90 Cal.App.3d 140, 149 [subject lands found not to have been
subdivided in 1887 for purposes of the Subdivided Lands Act where a map
recorded at the time referred to the land as a subdivision but the land was not in
fact divided]; cf. 81 Ops.Cal.Atty.Gen. 335 (1998) [multiple contiguous lots on a
federal survey map may not be separately conveyed without compliance with the
Map Act]; Colton L. & W. Co. v. Swartz (1893) 99 Cal. 278, 285 [?a map is not an
?instrument? which affects the title or possession of real property,? though a map
?deposited within the recorder?s office is properly referred to in [a deed] as being
?of record? therein?].) Thus, while antiquated maps served to facilitate land
conveyances involving the properties they depicted, such maps generally could not
alter the legal status of those properties without the attendant conveyances.9

9
A somewhat analogous rule of the common law posited that, prior to
California?s adoption of statutory methods of dedication, the mere filing and
recordation of a subdivision map did not create a dedication to public use of
property so depicted on the map, e.g., streets, highways, and parks, until there was
action upon the dedication. (Berton v. All Persons, etc. (1917) 176 Cal. 610
[where landowner divided property into lots and sold them by descriptions running
along the line of a street delineated on a recorded map, to which the various
conveyances referred, he thereby offered a dedication of the street which was
accepted by the public?s use]; Archer v. Salinas City (1892) 93 Cal. 43 [where
owner filed a map depicting a subdivision and a nearby open space as a park and
advertised to lot purchasers that the open space was reserved for a park, and
purchasers acted on such representations, a dedication of the park to the public use
occurred]; Wolfskill v. County of Los Angeles (1890) 86 Cal. 405 [the filing and
recordation of a map is but an offer of dedication of the streets and highways
thereon; the public authorities must have accepted the offer in some form for it to
constitute a dedication of which they may take advantage]; Haywood v. Manzer
(1886) 70 Cal. 476 [by filing and recording a map, property owner merely made
an offer of dedication to the public of certain streets shown by the map; such offer

(footnote continued on next page)
13


Consequently, unlike a modern-day final map or parcel map, which upon
recordation ordinarily converts what was formerly a single parcel into as many
separate lots as appear on the map (see County of Los Angeles v. Hartford Acc. &
Indem. Co. (1970) 3 Cal.App.3d 809, 813), the recordation of a subdivision map in
Sonoma County in 1865, without something more (such as a conveyance), could
not and did not work a legal subdivision of the property shown thereon, and
property owners who recorded subdivision maps in Sonoma County in 1865
generally remained free to deed parcels and lots as they desired without regard to
the depicted subdivisions.10
In short, plaintiffs cannot demonstrate that their claimed subdivision was
established in 1865 by virtue of the Greene map. First, the map?s recordation
preceded the first statewide map legislation enacted in 1893, and plaintiffs make
no claim that the map was recorded pursuant to some other preexisting statute or
regulation specifically governing the subdivision of property in Sonoma County.
Second, it is undisputed that the property in question has remained intact under
sequential owners throughout its history; consequently, plaintiffs cannot fit their
case within the decisions recognizing the establishment of subdivisions by
conveyance.

(footnote continued from previous page)

could not become effectual as an irrevocable dedication to public use until its
acceptance by the public].)
10
Here, in fact, the Greene family later acted to reconfigure its land by deed
without regard to the lot lines shown on the 1865 map. Moreover, as noted, 10 of
the 12 parcels sought by plaintiffs are but mere fractions of the subdivided parcels
shown on the map.
14


Hays, supra, 217 Cal.App.3d 271, which interpreted a grandfather
provision in the 1929 version of the Subdivision Map Act,11 supports this
conclusion. After observing that ?[t]he clear purpose of the so-called
?grandfather? clause is to protect developers who have detrimentally relied on an
earlier state of the law,? Hays aptly remarked that such purpose ?is hardly served
by allowing later purchasers of property which has never been sold in subdivided
form to take advantage of? the clause. (217 Cal.App.3d at p. 289.) In such cases,
Hays reasoned, ?the later purchaser placed no reliance on the prior state of the
law.? (Ibid.) The same may be said for the situation here, inasmuch as plaintiffs
and all previous purchasers of the subject property dating back to 1865 acquired
the property as a single unit or part of a single unit of land.
Plaintiffs next contend that section 66451.10, subdivision (a) (section
66451.10(a)) offers additional grandfather protections that are applicable to the
circumstances here. For the reasons below, we disagree.
Section 66451.10(a), commonly known as the ?anti-merger provision,?
prevents local agencies from automatically merging contiguous legal parcels when
those parcels come into common ownership: ?[T]wo or more contiguous parcels
or units of land which have been created under the provisions of this division, or
any prior law regulating the division of land, or a local ordinance enacted pursuant
thereto, or which were not subject to those provisions at the time of their creation,
shall not be deemed merged by virtue of the fact that the contiguous parcels or

11
In Hays, the provision at issue ?created an exemption from the act?s
requirements for ?any subdivision of land which has been staked out and in which
sales or contracts of sale have actually been made prior to the adoption of this act,
or [for] any subdivision a map of which has been duly recorded under the
provisions of any previous act . . . .? (Stats. 1929, ch. 837, ? 1, p. 1791.)? (Hays,
supra, 217 Cal.App.3d at p. 289.)
15


units are held by the same owner, and no further proceeding under the provisions
of this division or a local ordinance enacted pursuant thereto shall be required for
the purpose of sale, lease, or financing of the contiguous parcels or units, or any of
them.? (? 66451.10(a), italics added.)
By its own terms, section 66451.10(a) applies to only those units of land
that already were ?created? as separate parcels at some point in the past. As we
explained nearly a decade ago, the anti-merger protections of section 66451.10(a)
?apparently sprang from a concern that without them, section 66424 would cause
contiguous units of land that had already been qualified as separate parcels under
the Act to be automatically merged by virtue of common ownership and thus to
require further compliance with the Act before they could be sold separately.?
(Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 753 (Morehart).)
Section 66451.10(a) does not, however, address the creation of parcels in
the first instance. Nor does it provide a basis for legal recognition of subdivided
lots depicted on antiquated maps. As one court explained, the anti-merger
provision has no application if ?the lots were not legal subdivisions prior to the
Map Act.? (Taft, supra, 161 Cal.App.3d at p. 757.) Because plaintiffs fail to
demonstrate through statutory or decisional authority that recordation of the
Greene map in 1865 lawfully created the 12 parcels at issue, their reliance on
section 66451.10(a) is misplaced.
Plaintiffs contend Morehart, supra, 7 Cal.4th 725, recognized a
presumption that, although the ordinary effect of recording a subdivision map
before 1893 would have been to create the subdivided parcels shown thereon, such
a map might be found insufficient to create parcels because of inaccuracies or
inadequate information. Because the Greene map accurately described the
property it depicted, plaintiffs argue, Morehart?s presumption should be found to
govern here. Plaintiffs? reliance on Morehart is misplaced.
16


As relevant here, Morehart held that the Act?s anti-merger provision and
related statutes (?? 66451.10-66451.21) apply to parcels created before 1893, the
effective date of the first statewide subdivision map statute. (Morehart, supra, 7
Cal.4th at pp. 760-762.) Although plaintiffs here correctly note that the property
at issue in Morehart had been shown in subdivided form on a map recorded in
1888, the decision purposefully refrained from addressing the validity of
subdivision maps recorded before 1893. As Morehart emphasized, the defendant
county in that case admitted through pleadings that the subject property ?was
created by? a pre-1893 subdivision map. (7 Cal.4th at p. 761.) In light of that
admission, Morehart found no need to ?consider any of the prerequisites to
creation of a parcel that preceded California?s first subdivision map statute in
1893? and limited its inquiry to ?whether a parcel so created is covered by the
present Act?s merger provisions.? (Ibid.; see also id. at p. 765 (conc. opn. of
Mosk, J.) [?What [section 66451.10(a)] does not set forth, and what the majority
rightly do not decide today, is what constitutes the ?creation? of a parcel, subject to
the state merger provisions, if that parcel purportedly came into existence prior to
the first subdivision law in 1893.?].) In light of these express statements,
Morehart cannot be read as holding or otherwise suggesting a view that all
subdivision maps recorded before 1893 are to be given legal effect so long as they
accurately and sufficiently describe the property therein.
Not only does the Subdivision Map Act not support plaintiffs? position, but
issuing certificates of compliance based on the map Greene filed in 1865 would
frustrate the Act?s objectives ?to encourage and facilitate orderly community
development, coordinate planning with the community pattern established by local
authorities, and assure proper improvements are made, so that the area does not
17


become an undue burden on the taxpayer.? (Gomes, supra, 37 Cal.App.4th at p.
985; see Hill v. City of Clovis, supra, 80 Cal.App.4th at p. 445.)
That is, when substandard parcels, such as those at issue here,12 are
validated by certificates of compliance, they ?may be sold, leased, or financed
without further compliance with the Subdivision Map Act or any local ordinance
enacted pursuant thereto.? (? 66499.35, subd. (f)(1)(E).) Thus, if we were to
adopt plaintiffs? position and hold that local agencies must issue a certificate of
compliance for any parcel depicted on an accurate, antiquated subdivision map,
we would, in effect, be permitting the sale, lease, and financing of parcels: (1)
without regard to regulations that would otherwise require consistency with
applicable general and specific plans (?? 66474, subd. (b), 66418, 66419) and
require consideration of potential environmental and public health consequences
(? 66474, subds. (e), (f)); (2) without consideration of dedications and impact
mitigation fees that would otherwise be authorized by the Act; and (3) without
affording notice and an opportunity to be heard to interested persons and

12
As part of its resolution, the County Board of Supervisors found that the
?lines drawn on the antiquated 1865 map entitled ?The Redwood Estate of S.H.
Greene? were, for the most part, drawn in a simple grid, without regard to
topography, natural resources, and community needs and without community
review. The Board further finds and determines that the recognition of the lines
drawn on that antiquated map could open the door to the creation of hundreds of
parcels in the area inconsistent with the land use designations and acreage
limitations of the Sonoma County General Plan as well as the policies underlying
those designations and limitations. In particular, the Board finds and determines
that resurrection of the 1865 map now . . . could raise serious concerns regarding
the preservation of water supplies in a water scarce area, the protection of the
scenic corridor, the protection of stream fisheries and other wildlife resources, and
the preservation of other strong community interests in the area.?
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landowners likely to suffer a substantial or significant deprivation of their property
rights (? 66451.3; Horn v. County of Ventura (1979) 24 Cal.3d 605, 616).13
Because the provisions of the Map Act do not support such a result, and
because the Act?s objectives and protections would be thwarted if pre-1893
recorded maps such as the Greene map were deemed sufficient by themselves to
place parcels into compliance with the Act, we conclude the County properly
denied plaintiffs? request for the 12 certificates of compliance.
CONCLUSION AND DISPOSITION
The Greene map did not establish a subdivision and did not create legally
cognizable parcels in 1865 when it was recorded. Neither the provisions of the
Subdivision Map Act nor the legal authorities cited by plaintiffs persuade us that
the antiquated map must be given that effect today. Although the grandfather
provisions of the Act reflect the Legislature?s intent to protect those who
detrimentally relied on prior subdivision laws in individual situations, they evince
no intent to imbue antiquated maps with a legal significance that did not exist in
their own time. Consistent with the Map Act?s salutary purposes to facilitate local
regulation of the design and improvement of subdivisions so as to encourage
orderly community development (see Taft, supra, 161 Cal.App.3d at p. 755), we
hold that antiquated subdivision maps, recorded in the absence of an applicable
subdivision statute, ordinance, or regulation, did not in themselves establish

13
Although recognition of a subdivision through a certificate of compliance
does not confer any right to develop the resulting parcels, the subdivider may sell
the parcels without providing for the infrastructure needed to service them. Once
the property is in separate ownership, development of necessary infrastructure
may become far more difficult to coordinate and finance.
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subdivisions or create legal parcels that mandate the issuance of certificates of
compliance for the subdivided parcels they depict.
The judgment of the Court of Appeal is affirmed.

BAXTER, J.
WE CONCUR:

GEORGE, C.J.
KENNARD, J.
WERDEGAR, J.
CHIN, J.
BROWN, J.
MORENO, J.

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Gardner v. County of Sonoma
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted

XXX 92 Cal.App.4th 1055
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S102249
Date Filed: February 6, 2003
__________________________________________________________________________________

Court:

Superior
County: Sonoma
Judge: Knoel L. Owen

__________________________________________________________________________________

Attorneys for Appellant:

Perry, Johnson, Murray, Anderson & Miller, Perry, Johnson, Murray, Anderson, Miller & Moskowitz,
Leslie R. Perry and Jessica R. Flores for Plaintiffs and Appellants.

James S. Burling for Pacific Legal Foundation as Amicus Curiae on behalf of Plaintiffs and Appellants.

Craig J. Bassett for Richard van?t Rood as Amicus Curiae on behalf of Plaintiffs and Appellants.

__________________________________________________________________________________

Attorneys for Respondent:

Steven M. Woodside, County Counsel, and Sue A. Gallagher, Deputy County Counsel, for Defendant and
Respondent.

Stephen Shane Stark, County Counsel (Santa Barbara), and Alan L. Seltzer, Assistant County Counsel, for
the County of Santa Barbara as Amicus Curiae on behalf of Defendant and Respondent.

McCutchen, Doyle, Brown & Enersen, Daniel J. Curtin, Jr., Robert E. Merritt and Geoffrey L. Robinson
for the California State Association of Counties and Participating California Cities as Amici Curiae on
behalf of Defendant and Respondent.

M. Thomas Jacobson for American Planning Association and the California Chapter of the American
Panning Association as Amici Curiae on behalf of Defendant and Respondent.

Jonathan Wittwer for Granada Sanitary District as Amicus Curiae on behalf of Defendant and Respondent.

Bill Lockyer, Attorney General, Richard M. Frank, Chief Assistant Attorney General, J. Matthew
Rodriquez, Assistant Attorney General, and Jamee Jordan Patterson, Deputy Attorney General, for
California Coastal Commission as Amicus Curiae on behalf of Defendant and Respondent.

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Counsel who argued in Supreme Court (not intended for publication with opinion):

Leslie R. Perry
Perry, Johnson, Murray, Anderson, Miller & Moskowitz
703 Second Street, 4th Floor
Santa Rosa, CA 95402-1028
(707) 525-8800

James S. Burling
Pacific Legal Foundation
10360 Old Placerville Road, Suite 100
Sacramento, CA 95827
(916) 362-2833

Sue A. Gallagher
Deputy County Counsel
575 Administration Drive, #105A
Santa Rosa, CA 95403-2881
(707) 565-2421

Daniel J. Curtin, Jr.
McCutchen, Doyle, Brown & Enersen
1333 N. California Blvd., Suite 210
Walnut Creek, CA 94596-1270
(925) 937-8000

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