Reset A A Font size: Print

Court of Appeal, First District, Division 3, California.

Nathan KEIZER and Gertrude Keizer, Plaintiffs and Respondents, v. Leonard ADAMS, Supervising Building Inspector of Santa Cruz County; Louis B. Muhly, Director of Planning, Santa Cruz County, and Warren M. Harrison, Director of Public Works, County of Santa Cruz, Defendants and Appellants.

Civ. 25620.

Decided: October 22, 1969

Henry J. Faitz, Jerry W. Bartholow, James L. Rankin, Hugh S. Johnston, County Counsel, of Santa Cruz County, Santa Cruz, for appellants. Nicholos G. Schoonbrood, San Francisco, for respondents.

The Subdivision Map Act defines a subdivision as land divided into five or more parcels for purpose of sale or lease (Bus. & Prof.Code, § 11535). It requires a subdivider to file, secure approval of, and record a subdivision map (Bus. & Prof.Code, §§ 11550 et seq.). It makes it unlawful for any person to offer or contract to sell or lease any part of a subdivision without compliance with the act (Bus. & Prof.Code, § 11538) and provides penalties of fine or imprisonment for violation (Bus. & Prof.Code, § 11541). The question on this appeal is whether a wholly innocent purchaser for value may be denied a building permit upon a lot sold by the grantor in violation of this act.

On February 24, 1966, one Fullington owned a tract of 20 acres. Between that date and February 27, 1967, he sold 10 parcels from this tract. One of these sales was to plaintiffs-respondents Keizer, by deed recorded October 18, 1966. Application for a building permit for a one-family residence on the property was made on behalf of the Keizers February 8, 1967. It was denied by appellant county officials March 29, 1967, because the grantor, by subdividing his land into more than four parcels without filing a subdivision map, had violated the Subdivision Map Act and like provisions of a Santa Cruz County ordinance. Alternative writ of mandate issued on petitioners' application. At trial, the case was submitted upon an agreed statement of facts and other evidence. The trial court issued peremptory writ requiring appellant officials to consider petitioners' application without reference to the subdivision map requirement of statute and of county ordinance. The officials appeal.

Although it is undisputed that petitioners had neither actual nor constructive notice of other sales by the grantor, appellants argue that the salutary purpose of the Subdivision Map Act will be promoted by placing the burden of compliance upon the purchasers, however innocent. They point out the heavy burden upon the county, with its staff of employees, in checking each of the many recordings in Santa Cruz County. Somewhat myopically, however, they fail to suggest any feasible method by which an individual purchaser could obtain the same information.

The Subdivision Map Act clearly is designed to restrict activities of the subdivider—the one ‘who causes land to be divided into a subdivision’ (§ 11508). Its prohibition (§ 11538) and its penal sanctions (§ 11541) run only to the affirmative act of selling or offering for sale, and not to purchase. The act carefully provides that a deed made contrary to its terms is voidable ‘at the sole option of the grantee’ (§ 11540). The restraint here exercised by the Legislature is emphasized by the provision that, while ordinances may cover the same subject matter, ‘the validity of any conveyance’ shall not be affected except ‘to the extent and in the same manner provided in Section 11540.’ (§ 11540.1). The rights of the city or county are recognized in the grant of the remedy of injunction (§ 11542).

The act does not require the innocent purchaser to suffer for a violation by his grantor, of which he has neither knowledge nor means of discovery (Munns v. Stenman, 152 Cal.App.2d 543, 554–556, 314 P.2d 67). Nor does the ordinance, as it stood when the building application was denied, suggest such an effect. Thus, absent some other deficiency in respondents' application, appellant officials were required to issue the permit. This rule, of course, cannot be used as a cloak for the conniving purchaser (Pratt v. Adams, 229 Cal.App.2d 602, 40 Cal.Rptr. 505).

Appellants point to an amendment of the ordinance, purporting to authorize denial of a building permit if there has been any violation of the subdivision map ordinance, without reference to any knowledge by the purchaser-applicant. This amendment, however, was not effective until after denial of respondents' application. Thus it cannot, in any case, support that denial (McCombs v. Larson, 176 Cal.App.2d 105, 1 Cal.Rptr. 140), and we do not consider validity of the amendment. We do note, however, that its strict application could lead to this odd result; the grantee of the first parcel sold, even though his purchase was completely valid when made, could be barred from building if four later sales were made from the same parcel before he sought a building permit.

The writ granted below merely requires consideration of the building permit application ‘without regard’ to the Subdivision Map Act or ordinance. Requirements of zoning laws, building codes, lot-size limitations, and all other legitimate concerns of the county are fully protected.

Judgment affirmed.

I dissent.

The facts as stated in the majority opinion have been stipulated to by the parties.

Appellants denied the building permit on the authority of County Code section 12.04.070. This section provides as follows: ‘The application, plans and specifications filed by an applicant for a [building] permit shall be checked by the Building Official. Such plans may be reviewed by other departments of the city [County] to check compliance with the laws and ordinances under their jurisdiction. If the Building Official is satisfied that the work described in an application for permit and the plans filed therewith conform to the requirements of this Code and other pertinent laws and ordinances, and that the fee specified in Section 303(a) has been paid, he shall issue a permit therefor to the applicant.’

Appellants also state that authority for the county's legislative determination to deny building permits in illegal subdivisions is found in the Subdivision Map Act itself. Section 11542 of the Business and Professions Code provides: ‘This chapter does not bar any legal, equitable, or summary remedy to which any aggrieved municipality or other political subdivision, or any person, firm or corporation may otherwise be entitled, * * *.’ (Emphasis added.)

It is settled that where all legal requirements for the issuance of a building permit have been complied with, the issuance of the permit becomes a ministerial act and performance thereof may be compelled by mandamus. (McCombs v. Larson, 176 Cal.App.2d 105, 1 Cal.Rptr. 140; Munns v. Stenman, 152 Cal.App.2d 543, 314 P.2d 67.)

It is also settled that the owner of land may be prevented from subdividing that land unless he complies with the statute pertaining to the filing and approval of a subdivision map. (Bus. & Prof.Code, §§ 11500, 11540, 11542.) It follows that a purchaser of land who is aware of illegalities in the subdivision may be prevented from building thereon. (Pratt v. Adams, 229 Cal.App.2d 602, 40 Cal.Rptr. 505, Cooper v. County of Los Angeles, 75 Cal.App.2d 75, 170 P.2d 49.) The question now before us is: Does the Business and Professions Code as adopted by the Santa Cruz County ordinance prevent an innocent purchaser of land that has been illegally subdivided by the predecessor in interest from building thereon?

I fail to find a distinction between an innocent purchaser of land that has been illegally subdivided and an innocent purchaser of a building which has been built in violation of building codes or zoning ordinances. (See Roney v. Board of Supervisors, 139 Cal.App.2d 740, 292 P.2d 529.) Both the requirement for a subdivision map and the building and zoning ordinances have for their basic purposes the protection and well being of the public. Building statutes and ordinances seek protection for the health and safety of the residents. The subdivision requirements have for their purpose the integration of the particular subdivision into the community plans, and the imposition of controls to assure subdivision developments in a manner conducive to the well being of the prospective occupants and the community in general. (Clemons v. City of Los Angeles, 36 Cal.2d 95, 222 P.2d 439; Ayres v. City Council of City of Los Angeles, 34 Cal.2d 31, 207 P.2d 1, 11 A.L.R.2d 503.)

The provisions of Business and Professions Code, section 11535 et seq., make it mandatory for the owner of land intending to subdivide or to sell in lots or smaller parcels to have his subdivision map approved and recorded.

Section 11540 renders voidable, at the or deed contrary to the provisions of the option of the purchaser, any contract, sale Subdivision Map Act. Section 11541 makes violation of the act a misdemeanor. Section 11542 authorizes a suit at the instance of the municipality to enjoin any proposed subdivision or sale in violation of the act.

It is clear that Business and Professions Code, section 11540, which gives to the purchaser the right of rescission upon discovery that his property was illegally subdivided, contemplated an innocent purchaser being unable to utilize his land. The remedy of the respondents is against the person who sold them the property or to join with the other purchasers of lots in the illegal subdivision in obtaining approval by the county of a subdivision map. The right is not afforded a purchaser to thwart the provisions of the Business and Professions Code relating to subdivisions by the claim of lack of knowledge of the violation of those provisions by his predecessor in interest.

Respondents rely upon Munns v. Stenman, supra, 152 Cal.App.2d 543, 314 P.2d 67, where an application for a building permit was denied because county officials had concluded that the parcels did not comply with the state law or local ordinances prescribing conditions for subdivisions. Petitioners there had not participated in any acts alleged to have effected the illegal result. After the application for the permit had been made, the City Commissioners adopted amending ordinance number 1200 which provided in part that before a building permit could be issued, one must comply with all the laws of the city pertaining to subdivisions. This was the only authority for the denial of the permit on the basis of a subdivision violation. While recognizing the general rule that an application for a building permit must conform to an ordinance passed while action upon the same is pending, the court pointed out that this rule is not applicable to a situation where the permit clearly should have been issued before amendment to the law. Also, the ordinance was defective as authority for denial of a building permit because it contained requirements that could never be met by the owner who, for instance, could not require other property owners in the valley to comply with the demands of the city for dedication of property for street use.

Munns v. Stenman may be distinguished from the facts of the case before us because there the court specifically states that there was no violation of the subdivision laws or other ordinances at the time the application for the building permit was filed. It is authority only for the premise that mandamus is the proper remedy where the refusal to grant the building permit is based on an ordinance that is discriminating, arbitrary and confiscatory. The Munns v. Stenman case is not applicable to the facts before us because here the violation by applicant's predecessor in interest is conceded.

In McCombs v. Larson, supra, 176 Cal.App.2d 105, 1 Cal.Rptr. 140, the court held that where the legal requirements for the issuance of a building permit have been complied with, the issuance of the permit becomes a ministerial act and performance thereof may be compelled by the mandate of the court. The stipulated facts in McCombs v. Larson were ‘* * * that shortly prior to making application for a building permit the petitioners each purchased a tract of ground of a size suitable for building purposes from a prior owner. These two parcels were parts of a single lot and the parties stipulate that the prior owner had not complied with ordinances 295 and 297. It is also agreed that the petitioners knew of these ordinances and of the noncompliance. Thereafter, application was made for building permits and the applications were denied upon the sole ground that there had not been compliance with the provisions of these ordinances. It is conceded by the parties by their stipulation that in all other respects the requirements for the issuance of building permits were met and that the permits should have been issued except for the noncompliance.’ (Pp. 106–107, 1 Cal.Rptr. p. 141.)

The court in McCombs v. Larson, supra, in granting the writ of mandate compelling the issuance of the building permit said: ‘The situation presented in the instant case is that at the time the applications for permits were filed and were denied there was no express authority by ordinance or statute justifying a denial of the applications for failure to comply with ordinance 297. It is true that in the building ordinance heretofore quoted there is general language indicating that the application and plans should conform to the requirements of the code and other pertinent laws and ordinances. There is nothing in this language to justify the conclusion that a permit may be refused because of a failure to comply with ordinance 297. The express language refers to the plans and their conformity with the requirements of ordinances and statutes and there is nothing in the language to suggest that the purchaser of a lot may be denied a permit, and that no building may be permitted because his predecessor in title failed to comply with the requirements of that ordinance. Furthermore, it is obvious that the regulations for the granting and refusing of building permits must necessarily be sufficiently definite and certain that it can be readily and uniformly determined what requirements must be met.’ (P. 108, 1 Cal.Rptr. p. 142.)

Business and Professions Code, sections 11500, 11540 and 11542 have been adopted by ordinance in the County of Santa Cruz and appear in the Santa Cruz Code. Their inclusion in the code renders section 302(a) sufficiently definite so as to furnish notice that a building permit may be denied because of noncompliance with its terms.

In Pratt v. Adams, 229 Cal.App.2d 602, 40 Cal.Rptr. 505, the court listed the most important purposes of the Subdivision Map Act and the local ordinances which have been passed to supplement it, to wit: (1) the regulation and control of the design and improvement of subdivisions, with proper consideration for their relation to adjoining areas, (2) requiring the subdivider to install streets and drainage facilities, (3) the prevention of fraud and exploitation and (4) the protection of both the public and the purchaser. (P. 606.) The court went on to hold that these several purposes would be defeated if building permits were granted in a subdivision which had been created in violation of the Subdivision Map Act and the applicable county subdivision ordinance.*

It is felt that mandamus is an equitable remedy and may not be used to compel the performance of acts which are in violation of specific legal requirements or are contrary to public policy.

I would therefore conclude that the reasoning of the court in Pratt v. Adams, supra, applies equally to the innocent purchaser of a lot which has been subdivided illegally as well as to one who has purchased with knowledge of, or participated in the violation. It seems inescapable that to hold otherwise would be compelling the performance of an illegal act.

I believe therefore that the judgment of the trial court should be reversed.


FOOTNOTE.  The court in Pratt v. Adams, 229 Cal.App.2d 602, 606, 40 Cal.Rptr. 505, 508–509, has the following language in the opinion: ‘This is not a case in which a building permit has been denied because of some old violation of subdivision laws, possibly done by predecessors in title to the applicant; it is a case where the permit is sought as the culmination of a plan to circumvent the law by one of the planners. The courts will not assist, by equitable process, the fulfillment of this plan.’ This statement was unnecessary to the factual situation in the opinion. It is felt that this court should not be controlled by this dictum.

DRAPER, Presiding Justice.

CALDECOTT, J., concurs.