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Court of Appeal, Second District, Division 6, California.

John M. MOREHART and Frances Morehart, Plaintiffs and Respondents, v. COUNTY OF SANTA BARBARA et al., Defendants and Appellants.

No. B058957.

Decided: December 14, 1992

David Nawi, County Counsel, Stephen Shane Stark and Colleen Parent Beall, Deputy County Counsel, for defendants and appellants. Daniel E. Lungren, Atty. Gen., Roderick E. Walston, Chief Asst. Atty. Gen., Public Rights, Jan S. Stevens, Asst. Atty. Gen., and Jamee Jordan Patterson, Deputy Atty. Gen., as amicus curiae on behalf of defendants and appellants. Hollister & Brace and Richard C. Monk, Santa Barbara, Lascher & Lascher and Wendy C. Lascher, Ventura, for plaintiffs and respondents. McCutchen, Doyle, Brown & Enersen, Daniel J. Curtin, Jr., Robert E. Merritt, Jr., and Maria P. Rivera, Walnut Creek, as amicus curiae on behalf of plaintiffs and respondents. Nossaman, Guthner, Knox & Elliott and James P. Corn, Sacramento, as amicus curiae on behalf of plaintiffs and respondents.

We hold that Santa Barbara County's Antiquated Subdivision Ordinances are not preempted by the merger provisions of the Subdivision Map Act.   The statutory merger provisions of Government Code sections 66451.10 et seq. provide the exclusive means by which local agencies can achieve non-consensual eradication of lot lines of commonly-owned contiguous parcels so that the individual contiguously owned lots cannot be separately sold, leased or financed.   In contrast, the County's ordinances regulate the development and use of land pursuant to its zoning authority.   We reverse the trial court's judgment and remand the matter for further proceedings.

The County of Santa Barbara and its Board of Supervisors (County) appeal from a judgment of Santa Barbara Superior Court declaring the County's Zoning Ordinances Nos. 3718 and 3719, commonly referred to as the Antiquated Subdivision Ordinances or AS Ordinances, preempted by the exclusive merger provisions of the state Subdivision Map Act (Gov.Code, §§ 66451.10–66451.21;  hereafter Map Act) and therefore invalid, void on their face and unenforceable.1  The court directed a writ of mandate remanding the administrative proceedings regarding John and Frances Morehart's application for a coastal development permit to the Board of Supervisors, and commanded the Board to (1) cease and desist from enforcing Ordinances Nos. 3718 and 3719 and (2) vacate its denial of the application for a permit for Moreharts' Block 132 of the “Town of Naples” and to conduct further proceedings.


The Moreharts own Block 132, a 3.7 acre parcel in Naples Townsite, in the County's Gaviota Coast Planning Area, approximately 15 miles west of Santa Barbara.   Naples is an “Antiquated Subdivision” of 930 acres adjacent to Dos Pueblos Creek.   When Morehart Land Company purchased most of the acreage within Naples Townsite in 1977, it was zoned as unlimited agriculture, one dwelling per ten acres.2  Morehart Land Company conveyed 11 lots or blocks to separate owners in 1980, another 11 in 1982, 9 in 1983 and approximately 43 more, including Moreharts' Block 132 and several contiguous to it on June 28, 1984.

In 1981, in connection with its Local Coastal Plan (LCP) and Coastal Zoning Ordinance, the County downzoned Naples Townsite to “AG–II–100,” permitting only one dwelling per 100 acres.   Naples Townsite blocks are, for the most part, 3.7 acre parcels and do not meet the current 100 acre minimum lot size.   However, a “grandfather clause” under Coastal Zoning Ordinance 35–69.5 allows a dwelling on a smaller lot if the lot is a “legal lot” either on a recorded subdivision or parcel map or is a legal lot as evidenced by a recorded certificate of compliance.

A certificate of compliance is a document issued and recorded by a local agency certifying that the subject property complies with the Map Act and related local ordinances (§ 66499.35).   The County has issued more than 100 certificates of compliance for Naples Townsite lots, at least 40 of which were issued before the 1984 ordinance.   Several residences have been built on Naples Townsite since 1979.

July 2, 1984, the Board of Supervisors adopted Resolutions 84–298 and 84–299.   Resolution 84–298 allows certificates of compliance to be issued for antiquated lots, subject to notice that such lots may not be buildable, and provided that no development permits would be allowed except as consistent with zoning.   Resolution 84–299 provided an amendment to the text of the Santa Barbara County zoning ordinances to generally require lots within areas designated by an AS Antiquated Subdivision Overlay District, including Naples Townsite, to comply with current minimum lot size requirements at the time application is made for a land use permit or Coastal Development Permit.   An exception exists where smaller lots are held in separate ownership on the date of a Board of Supervisors Resolution introducing rezoning to the AS Antiquated Subdivision Overlay District.

August 8, 1988, the Board adopted Ordinance 3718 and 3719, amending Coastal Zoning Ordinance by adding Section 35–102 (AS Overlay District) and 35–128.5 (General Regulations, Area of Lots), consistent with Resolutions 84–298 and 84–299.   On August 8, 1988 Naples subdivision was rezoned pursuant to Ordinance 3719 and on February 7, 1989, the California Coastal Commission certified the AS Overlay Ordinance as part of the County's LCP.

September 21, 1987, the Moreharts applied for a coastal development permit to build a single family dwelling on Block 132.   The County's Resource Management Division denied the permit in May of 1988 on grounds that it was inconsistent with the Resolutions.   The County staff believed it feasible to recombine Block 132 with enough contiguous lots to make a 100–acre parcel because the other lots were owned by either members of the Moreharts' family or corporations owned by the Moreharts and family members.   The Moreharts unsuccessfully appealed the denial to the Planning Commission and then to the Board of Supervisors.

April 18, 1989, the Moreharts filed a complaint against the County seeking, among other relief, an order invalidating the Ordinances on the grounds that:  (1) they conflict with the exclusive merger provisions of the Map Act and for that reason are preempted;  and (2) if valid despite this conflict, the County nevertheless acted arbitrarily and capriciously in applying them to the Moreharts.   The trial court, after consideration of the administrative record, written authorities, and oral argument, directed a peremptory writ of mandate to issue.   The court held:  (1) section 66451.10 specifically enjoins local governments from utilizing the merger procedure except in accordance with state law;  (2) the County's Antiquated Subdivision Ordinance with its reliance upon the concept of merger as the primary land use control tool is a merger ordinance which does not comply with state law and which intrudes in an area occupied by state law;  (3) the County made a conscious decision to try to avoid the considerable administrative and procedural requirements attended upon compliance with state law, while preserving the requirement that parcels be merged as a condition of development;  and (4) the Moreharts' property was not identified or designated as of insufficient size to support residential development and thus came within an exception to the Map Act provided in section 66451.11, subdivision (b)(E).

Based on these findings, the court concluded that the Ordinances “․ are preempted by the exclusive merger provisions of the State Subdivision Map Act ․ and are therefore invalid, void on their face and unenforceable.”   The court did not decide whether the Ordinances were unconstitutional as applied to the Moreharts.

The County complied with the writ of mandate by directing its Resource Management Department to issue a coastal development permit for Block 132 while this appeal was pending.3


1. Issue Not Moot.

 The County and the Moreharts both urge this court to decide the issue even though the County ultimately issued a building permit to the Moreharts.   The County points out that by agreement, the issues of damages and attorney's fees are reserved until the disposition of this appeal, and pursuant to stipulation and order of August 8, 1991, the related case of Naples Property Owners Association v. County of Santa Barbara, (Super.Ct. Santa Barbara County, 1989, No. 179265) brought under 42 United States Code section 1983 for damages and loss of development rights for most of Naples, as well as declaratory and injunctive relief, has been stayed until issuance of the remittitur of this appeal.

We hold that the case involves a question of general public interest likely to reoccur and choose to determine the issue even though it is moot as to these respondents.  (Downtown Palo Alto Com. for Fair Assessment v. City Council (1986) 180 Cal.App.3d 384, 391–392, 225 Cal.Rptr. 559.) 4

2. Ordinances Not Preempted.

 Section 66451.10, subdivision (a) proscribes local ordinances requiring merger of contiguous parcels for purposes of sale, lease, or financing except as provided in section 66545.11.5  Under section 66451.11, a local agency may, by ordinance conforming to and implementing the procedures prescribed by this article, provide for merger of non-conforming contiguous parcels held by the same owner if any one of the contiguous parcels does not conform to standards for minimum parcel size, under the applicable local zoning ordinance and if all of specified statutory requirements are met.  (The Morehart parcel does not meet these requirements and could not be merged under the statute.)

 The Moreharts and Naples Property Owners assert that although the ordinances do not duplicate state law, state law both expressly and impliedly occupies the field of merging subdivision parcels.   A county or city may make and enforce within its limits all local police, sanitary and other ordinances and regulations not in conflict with general laws.   (Cal.Const., art. XI, § 7;  Griffin Development Co. v. City of Oxnard (1985) 39 Cal.3d 256, 261, 217 Cal.Rptr. 1, 703 P.2d 339;  Wells Fargo Bank v. Town of Woodside (1983) 33 Cal.3d 379, 383, 189 Cal.Rptr. 41, 657 P.2d 819.)   The Map Act allows reasonable local regulation supplemental to its purposes and not in direct conflict therewith.  (B & P Development Corp. v. City of Saratoga (1986) 185 Cal.App.3d 949, 961, 962, 230 Cal.Rptr. 192;  Friends of Lake Arrowhead v. Board of Supervisors (1974) 38 Cal.App.3d 497, 505, 113 Cal.Rptr. 539.)   The power to adopt supplementary ordinances or regulations pursuant to the Map Act (§§ 66410–66499.37) may be implied, where not expressly granted, as long as the provision at issue reasonably relates to the purposes of the Act.  (Friends of Lake Arrowhead, supra, at p. 505, 113 Cal.Rptr. 539;  Soderling v. City of Santa Monica (1983) 142 Cal.App.3d 501, 506, 191 Cal.Rptr. 140.)

 A conflict exists where a local ordinance enters into an area fully occupied by the general law, either expressly or by legislative implication.  (IT Corp. v. Solano County Bd. of Supervisors (1991) 1 Cal.4th 81, 90, 2 Cal.Rptr.2d 513, 820 P.2d 1023;  Casmalia Resources, Ltd. v. County of Santa Barbara (1987) 195 Cal.App.3d 827, 833, 240 Cal.Rptr. 903.)   The test whether local regulation has been preempted by implication is whether (1) the subject matter has been so fully and completely covered by general law as to clearly indicate an exclusive matter of state concern;  (2) the subject matter has been partially covered by general law in such terms to indicate a paramount state concern will not tolerate further or additional local action;  or (3) the subject matter has been partially covered by general law, and is of such a nature that the adverse effect of local regulation outweighs the possible benefit to local government.  (IT Corp., supra, at p. 91, 2 Cal.Rptr.2d 513, 820 P.2d 1023.)

The Map Act grants authority to cities and counties to determine the compatibility of the design of a subdivision in relation to the surrounding area.  (69 Ops.Cal.Atty.Gen. 209 (1986).)   Its provisions acknowledge the authority of cities and counties to carry out planning of matters set forth in the Act.  (See, e.g., §§ 66451, 66463, 66484.5, 66485, 66488.)

 The purposes underlying the various enactments of the Map Act have been to control the design of subdivisions for the benefit of adjacent landowners, prospective purchasers and the public in general and to prevent fraud and exploitation.  (Hays v. Vanek (1989) 217 Cal.App.3d 271, 289, 266 Cal.Rptr. 856;  Pescosolido v. Smith (1983) 142 Cal.App.3d 964, 972, 191 Cal.Rptr. 415.)

 While the Map Act may be the ultimate authority respecting the subdivision process, it does not—and may not—preempt all land use regulation.  (McMullan v. Santa Monica Rent Control Bd. (1985) 168 Cal.App.3d 960, 963, 214 Cal.Rptr. 617.)   The power of cities and counties to zone land use according to local conditions is well established.   (IT Corp. v. Solano County Bd. of Supervisors, supra, 1 Cal.4th 81, 89, 2 Cal.Rptr.2d 513, 820 P.2d 1023.)   The Map Act regulates the manner in which an owner of a contiguous block of land may “subdivide” or convey a portion of land while retaining the balance.  (John Taft Corp. v. Advisory Agency (1984) 161 Cal.App.3d 749, 755, 207 Cal.Rptr. 840.)

 Section 66451.10 validates all lots and parcels ever created under the Map Act or local ordinances, under a prior law regulating the division of land or a local ordinance enacted under the law, or not subject to those provisions at the time of their creations.  (Curtin & Merritt, Cal. Subdivision Map Act Practice (Cont.Ed.Bar. June Update 1992) § 2.18, p. 13.)   If a lot or parcel meets this standard, it has the same status as a mapped parcel under the current Map Act;  the owner need take no further action to comply with the Map Act for the lot or parcel to be sold, leased, or financed.  (Ibid.)  Section 66412.6, subdivision (a), which is more limited in scope, is intended to protect the sale, lease, or financing of single lots or parcels that, when created, did not violate the Map Act or the applicable local subdivision ordinance. (Id., at p. 14.)

 Nonetheless, development of particular parcels which cannot be merged because they do not qualify under the Map Act or local merger ordinance is still governed by other land-use laws such as zoning laws.   “Despite the provision in Govt C § 66451.10 that Govt C §§ 66451.10–66451.21 constitute the sole authority for merger, a local ordinance that precludes development of a substandard parcel without acquisition of sufficient adjoining land to make the parcel conform to the lot-size minimum, effectively creating a merger for use purposes, remains valid.   See Hill v. City of Manhattan Beach (1971) 6 Cal.3d 279, 98 Cal.Rptr. 785, 491 P.2d 369, [ ];  PMI Mortgage Ins. Co. v. City of Pacific Grove (1981) 128 Cal.App.3d 724, 179 Cal.Rptr. 185, [ ].  See also Palmer v. Board of Supervisors (1983) 145 Cal.App.3d 779, 193 Cal.Rptr. 669, [ ].”  (Cal. Subdivision Map Act Practice, op. cit. supra, (1987) § 2.20, pp. 40–41.)   However, any prohibition against conveyance of such a parcel would be preempted by the Map Act.  (Ibid.)

 Preemption by implication may not be found when the Legislature has expressed its intent to permit local regulations and should not be found when the statutory scheme recognizes local regulations.  (Candid Enterprises, Inc. v. Grossmont Union High School Dist. (1985) 39 Cal.3d 878, 888, 218 Cal.Rptr. 303, 705 P.2d 876;  People ex rel. Deukmejian v. County of Mendocino (1984) 36 Cal.3d 476, 485, 204 Cal.Rptr. 897, 683 P.2d 1150.)   Similarly, there can be no preemption when the subject matter of the state law does not cover the subject matter of the local ordinance.  (Candid Enterprises, Inc. v. Grossmont Union High School District, supra, 39 Cal.3d at p. 887, 218 Cal.Rptr. 303, 705 P.2d 876.)

 The Map Act merger provisions and the County's Antiquated Subdivision Ordinances do not regulate the same subject matter.  Section 66451.10, subdivision (b) is restricted to local agency-initiated merger of contiguous parcels for purposes of controlling sale, lease or financing.   Although the court found that the ordinance was a “disguised merger ordinance” because the only significant difference is that the ordinance requires the owner initiate the process, this difference is crucial.   Section 66424 defines a “subdivision” as “the division, by any subdivider, of any unit or units of improved or unimproved land, or any portion thereof, ․ for the purpose of sale, lease, or financing, whether immediate or future․”  (Emphasis added.)   Thus, any attempted sale of a portion of property by a landowner will normally trigger the Act's requirements under the general language of section 66424.  (69 Ops.Cal.Atty.Gen. 209, 210 (1986).)

 Section 66451.10 provides its own exception:  parcels otherwise considered separate pursuant to section 66451.10 may be “merged” by a city or county if certain statutory conditions for merger are met.  (Ibid.)  Thus an owner of adjoining lots in an older approved subdivision may be brought back under the provisions of section 66424 and be required to file a subdivision map in order to sell the lots individually, if the stringent requirements of sections 66451.11 through 66451.21 are followed by the local government.  (Ibid.)  A local agency's failure to adopt a merger ordinance in compliance with the merger provisions results in no further subdivision proceedings for the purpose of sale, lease or financing of a presently non-conforming or substandard but legal parcel.  (§ 66451.19, subds. (d) & (e).) 6

 Consequently, although the Map Act controls development of parcels in a broad sense, it does so through specific statutes controlling sale, lease, or financing of subdivision parcels or lots.   It expressly acknowledges the power of local government to regulate zoning and carry through the purpose of the Act through supplemental ordinances except in specific areas such as local agency controlled merger of contiguous parcels to control the sale, lease, or financing of subdivision parcels or lots.   However, local government is not precluded from controlling development of substandard parcels simply because the end result is a merger of parcels.7

 Similarity of effect does not mean preemption.  (Mira Development Corp. v. City of San Diego (1988) 205 Cal.App.3d 1201, 1218, 252 Cal.Rptr. 825;  see also Candid Enterprises, Inc. v. Grossmont Union High School Dist., supra, 39 Cal.3d 878, 218 Cal.Rptr. 303, 705 P.2d 876;  William S. Hart Union High School Dist. v. Regional Planning Com. (1991) 226 Cal.App.3d 1612, 277 Cal.Rptr. 645;  Murrieta Valley Unified School Dist. v. County of Riverside (1991) 228 Cal.App.3d 1212, 279 Cal.Rptr. 421.)   The Map Act eliminates the previous concept of merger by operation of law and allows local government to determine the timing and scope of merger.   However, since this non-consensual agency-initiated merger erases previous lot lines, a local agency must record a notice to merge and follow procedural and substantive safeguards.   In contrast, under the County's ordinance, Antiquated Subdivision lots may be separately conveyed.   It is only when development is sought that the ordinance requires antiquated lots to be recombined or merged, if feasible, to fulfill the objectives reflected in the zoning ordinance and the LCP.   Thus, statutory merger and the AS zoning ordinances are substantially different in terms of purpose, context, and impact.   The County's Antiquated Subdivision regulations and ordinances are a proper exercise of the County's land use regulations authorized by both the constitution and state law.

 We decline to decide other issues raised but undetermined in the trial court.   Some of these issues are moot, given that the Moreharts have their building permit (i.e., whether the ordinances were unconstitutional as applied to the Moreharts and whether they were exempt because they held their lot in separate ownership).   Similarly, we decline to issue an advisory opinion on factual issues not decided first in the trial court.

We uphold the validity of the Antiquated Subdivision Zoning Ordinances and reverse the trial court's judgment.   Costs to respondents.


1.   All statutory references hereinafter are to the Government Code unless otherwise specified.

2.   Morehart Land Company is a California corporation, 51 percent of which is owned by nine adult Morehart children and 49 percent of which is owned by John and Frances Morehart.

3.   The judgment is separately appealable on a severed issue.   (Code of Civil Procedure, § 1048;  Day v. Papadakis (1991) 231 Cal.App.3d 503, 508, 282 Cal.Rptr. 548;  Garat v. City of Riverside (1991) 2 Cal.App.4th 259, 276, fn. 8, 3 Cal.Rptr.2d 504.)

4.   We granted permission for amicus briefs to be filed by the California Coastal Commission, Naples Property Owners Association and Consulting Engineers and Land Surveyors of California (CELSOC).

5.   Section 66451.10, subdivision (a), provides in pertinent part, that “two 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 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.  [¶] (b) This article shall provide the sole and exclusive authority for local agency initiated merger of contiguous parcels.   On and after January 1, 1984, parcels may be merged by local agencies only in accordance with the authority and procedures prescribed by this article.   This exclusive authority does not, however, abrogate or limit the authority of a local agency or a subdivider with respect to the following procedures within this division:  (1) Lot line adjustments.  (2) Amendment or correction of a final or parcel map.   (3) Reversions to acreage.  (4) Exclusions.  (5) Tentative, parcel, or final maps which create fewer parcels.”

6.   In their Petition for Rehearing, the Moreharts accuse us of disregarding the legislative history of the statutes in question.   However, established rules of statutory interpretation require us to apply a statute without further construction if it is not ambiguous or uncertain.   (People v. Woodhead (1987) 43 Cal.3d 1002, 1007–1008, 239 Cal.Rptr. 656, 741 P.2d 154;  People v. Overstreet (1986) 42 Cal.3d 891, 895, 231 Cal.Rptr. 213, 726 P.2d 1288;  Morse v. Municipal Court (1974) 13 Cal.3d 149, 156, 118 Cal.Rptr. 14, 529 P.2d 46.)   We must give effect to every word and clause, whenever possible, and not deprive them of meaning.   (California Assn. of Psychology Providers v. Rank (1990) 51 Cal.3d 1, 18, 270 Cal.Rptr. 796, 793 P.2d 2;  Weber v. County of Santa Barbara (1940) 15 Cal.2d 82, 86, 98 P.2d 492.)   The Moreharts would have us disregard the express wording of the statute, i.e., “local agency initiated merger”, and “for the purpose of sale, lease and financing.”The incomplete legislative history presented in the administrative record does not persuade us that the present merger statutes are unclear or ambiguous or that the express terms included therein are meaningless.

7.   The recent case of Briseno v. City of Santa Ana (1992) 6 Cal.App.4th 1378, 8 Cal.Rptr.2d 486 is distinguishable.   In Briseno, the Health and Safety Code provisions of the Uniform Housing Law have a much broader mandate with a specified narrow set of circumstances in which local entities may override the state law.

STEVEN J. STONE, Presiding Justice.

GILBERT and YEGAN, JJ., concur.