Condemnation that Separates Land into Discrete Parts does not “Divide” Land Under Subdivision Map Act
by Derek P. Cole on November 2, 2015
posted in Eminent Domain, Recent Court Decisions, Subdivisions,
When government condemns a strip of land across a single parcel of property for a public improvement (such as a road), does the condemnation create two legal parcels (one on each side of the strip)? No, says a recent appellate court opinion. In Save Mount Diablo v. Contra Costa County, the court held that the physical separation of land by condemnation does not “divide” the land under the Subdivision Map Act (“Map Act”).
The Case Facts
The case involved a nearly 600-acre parcel in Contra Costa County. When a water district constructed a dam in the mid-1990s, it acquired two strips of land across the property at issue—one for a road, the other for an underground pipeline. The two strips crisscrossed, separating the property into four discrete parts.
In 2006, the property was acquired as a single parcel by the Nunn family. A few years later, the Nunns filed an application for a parcel map to divide the property into four parcels and a remainder. The Nunns later withdrew this application and instead sought that certificates of compliance be issued for the four parcels they claimed they had because of the earlier condemnation.
After their county board of supervisors approved issuance of the certificates, an environmental group sued, claiming the board’s action violated the Map Act. The superior court agreed, and set aside the approval. The Nunns appealed.
The Court’s Holding and Reasoning
The court of appeal recognized the Nunns’ legal position had superficial appeal. There was no dispute that, because of the mid-1990s condemnation, the Nunn property was physically separated into four distinct parts and none of the parts was contiguous to the others (that is, no part could be accessed without having to cross one of the strips condemned in the 1990s for the dam project). But regardless of this “practical reality,” the court found no support in the Map Act itself for the Nunns’ position.
The court reasoned that because of the Map Act’s language, government agencies cannot divide private properties they do not condemn. Rather, the court noted that the division of property may occur lawfully—such as by creation of a proper parcel or subdivision map—or it may occur unlawfully—such as by conveyance of a parcel by deed alone, without a prior map. Yet, however a parcel is created, and whether or not it is created lawfully, the essential act that constitutes a “division” of property is the private owner’s conveyance of the parcel to another party.
Applying this reasoning, the court found it significant that the Nunns themselves had received the property as a single parcel after the condemnation that had separated the property into four parts. Because no previous owner had conveyed the property as multiple parcels, the court held there was no “division” of the property that could justify approval of certificates of compliance.
The Ruling’s Implications
The court’s ruling may not have been unexpected. The court cited a treatise on California subdivision law that had identified as a “common mistake” the idea that “roads, railroad tracks, and natural boundaries divide parcels.”[1] While recognizing manmade or natural boundaries as divisions of property may seem intuitive to some, a fundamental Map Act policy is to ensure local governments retain control over real estate development. In ruling as it did, the court felt it was furthering this policy.
Most likely, the impacts of this ruling will not be felt in the area of subdivision applications, but in how to value condemnations that, like the taking in this case, separate property into discrete parts. Surely, attorneys who represent condemnees in eminent domain proceedings will argue the expenses associated with the physical separation of property into multiple parts—and in particular, the impacts separation has on land use and development rights—should lead to higher compensation for their clients. Whether courts will accept this rationale remains to be seen. But condemning agencies should expect the argument to be made.
[1] Merritt, Practicing Under the Subdivision Map Act: Eight Common Pitfalls (C.E.B. 1988) Real Property L.Rptr. 165
