Lot Line Adjustments

Lot Line Adjustments

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Question

Given the recent legislative changes to the Subdivision Map Act concerning lot line adjustments (LLAs), are the local ordinances of cities and counties now required to:  (1) characterize the approval of a lot line adjustment as a “discretionary approval” subject to CEQA?; and (2) must the local ordinance limit the property owner to four total lot line adjustments over the lifetime of its ownership of the property?

Answer

Excellent questions!  In my view, (1) no, cities and counties are not required to characterize the approval of a LLA as a “discretionary” approval subject to CEQA; and (2) no, the local LLA ordinance need not limit an owner to four total LLAs over the lifetime of its ownership of the property.

Discussion

My analysis begins with a basic tenant of Land Use Law in California:  cities and counties in California are not dependent on statute to give them the power to act.  Instead, cities and counties have the inherent “police power” to regulate for the health, safety and general welfare of their communities, and can only have that police power curbed when its exercise conflicts with general law.  (See, Calif. Const. Art XI, § 7.)

With respect to LLAs, some land use practitioners argue that cities and counties cannot take certain LLA actions unless the Subdivision Map Act expressly allows them.  I disagree.  The Subdivision Map Act does not “grant” or “empower” cities and counties in California to act – cities and counties already have that inherent police power to act.  And, where the Map Act is silent, a city/county has the power to supplement its regulations as long as the provision at issue reasonably relates to the purposes of the Act.  (Soderling v. City of Santa Monica, 142 Cal.App.3d 501 (1983).)  In other words, the Map Act sets up certain express requirements regarding LLAs – which express requirements cities and counties cannot ignore or conflict with – leaving those matters not addressed by the Map Act to be addressed by local police power exercise through the local LLA ordinance.

That is exactly what many cities and counties in California have done with respect to LLAs.  For example, in Napa County, the Director of Public Works is required to tentatively approve a LLA application if it meets twelve identified standards.  (Napa County Code § 17.46.040.C.)  These 12 standards are very exacting, and are “objective” in character.  Because of this, LLA applications that comply with these identified County standards “are deemed to conform to the county general plan, any applicable specific plan, and county zoning and building ordinances.”  (Id.)  Upon a determination of compliance, the LLA must be approved.  Because the County lacks discretion to deny a complying application, the decision is “ministerial” in character.  As readers may know, ministerial approvals are exempt from CEQA.  (Pub. Res. Code § 21080(b)(1).)

The second question concerns the number of LLAs the Subdivision Map Act allows for a property owner and a particular property.  Under Government Code section 66412(d), LLAs are exempt from the Map Act’s general requirement that property may not be subdivided without either a parcel map or a tentative and final map.  Some land use practitioners argue that this exception for LLAs is limited to four total LLAs over the lifetime of a property owner’s ownership of the property.  They argue that all serial LLAs of a single property owner on a single piece of property are to be accumulated over time.  Once they reach five or more, they argue that the exception of Section 66412(d) no longer applies and that the property must do further adjustments through a map.  I disagree.

There is nothing explicit in the Subdivision Map Act that prohibits multiple LLA applications and approvals over the life time of one’s property ownership.  Such a prohibition would have been easy for legislators to draft but they have not.  Nor has any court determined that such a prohibition exists.  Adjusting existing lots (which arguably already went through a mapping process or were allowed with a process) has always been considered less important under the Map Act than “creating” new lots through maps.

Because the Map Act is silent with respect to how many times a property owner may invoke Section 66412(d) on the same piece of property, the police power of cities and counties, as we discussed above, can be used to fill this void.  The decision as to whether a property owner may apply for an LLA with respect to a single plot of property for the first, second, third, or hundredth time has been left completely within the control, discretion, and administration of the local city/county.

As stated above, statutes curtail a city’s/county’s police power; they do not grant authority.  Therefore, the local public agency is the appropriate entity to control this Section 66412(d) issue, unless and until the California Legislature explicitly addresses the application of CEQA to LLAs, and the number of LLA applications that a property owner may file.

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