Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Los Angeles County Super. Ct. No. BS100584
APPEAL from an order of the Superior Court of Los Angeles, Jan A. Pluim, Judge.
Ann Hayes Higginbotham for Plaintiffs and Appellants.
Michele Beal Bagneris, City Attorney and Theresa E. Fuentes, Assistant City Attorney for Respondent.
Hunter, Mallory & Salcido and John L. Hunter for Real Parties in Interest Paul and Elizabeth Anderson.
Allen Matkins Leck Gamble Mallory & Natsis, Patrick A. Perry and Nancy S. Fong for Real Party in Interest Federal Deposit Insurance Corporation as Conservator for Indymac Bank, FSB.
TURNER, P. J.
I. INTRODUCTION
Plaintiffs, Janice Sharp and Dane Hoiberg, appeal from an order denying their first amended mandate petition in which they sued the City of Pasadena (“the city”). Named as real parties in interest are Paul and Elizabeth Anderson, as Trustees of the Paul and Elizabeth Anderson Family Trust (“the Andersons”) and the Federal Deposit Insurance Corporation as Conservator for Indymac Federal Bank, FSB (the bank). In their mandate petition, plaintiffs asserted that the city erroneously issued building and grading permits to the Andersons for the construction of a single family residence located at 52 Los Altos Drive in Pasadena, which is also known as lot No. 7 of tract No. 8702. Lot No. 7, which is owned by the Andersons, is located adjacent to plaintiffs’ home. The building and grading permits were issued to the Andersons. The bank recorded a trust deed on the Andersons’ property in order to secure a $1.45 million construction loan. Plaintiffs assert that the city, when it issued the building and grading permits to the Andersons, violated the Subdivision Map Act. (Gov. Code, § 66410 et seq.) Additionally, plaintiffs argue issuance of the building and grading permits violated provisions of the Pasadena Municipal Code. We conclude nothing in the Subdivision Map Act or provisions of the Pasadena Municipal Code prevented the city from issuing the building and grading permits to the Andersons. Thus, we need not address plaintiffs’ res judicata and exhaustion of administrative remedies contentions. As a result, we affirm the order denying the first amended mandate petition.
All further California statutory references are to the Government Code unless otherwise indicated.
All future references to a municipal code are to the Pasadena Municipal Code.
II. BACKGROUND
A. Lot No. 7’s Creation and History
Lot No. 7 was originally created, on September 28, 1925, when the Alta San Rafael Company recorded tract No. 8702. The city maintains that, at the time it was created, lot No. 7 consisted of approximately 13,068 square feet or 0.30 acres. Plaintiffs argue that a survey prepared by the Andersons shows that the actual size of lot No. 7 in 1925 was 12,891 square feet. In any event, lot No. 7’s size at the time it was created exceeded 12,000 square feet.
In 1931, the Alta San Rafael Company sold lot No. 8 and a portion of lot No. 7 to Charles and Ella Voorhis. There is no evidence that a parcel map was approved in connection with the 1931 conveyance of the portion of lot No. 7. However, the parties disagree as to the effect of the 1931 transaction. According to plaintiffs, Lot 7 “ceased to exist” in 1931 and has been altered numerous times since its September 28, 1925 creation. Plaintiffs argue that the 1931 conveyance caused lot No. 7 to cease to exist. This, plaintiffs reason, is because the 1931 transfer to the Voorhis reduced lot No. 7 by approximately 970 square feet. Plaintiffs contend that what was left was merely a remnant of lot No. 7. The city, the Andersons, and the bank maintain that any failure to comply with the Subdivision Map Act in 1931 did not cause lot No. 7 to become a legal nullity.
The 1931 conveyance of the portion of lot No. 7 is described as: “Beginning at the northeasterly corner of Lot Seven (#7) of Tract Eighty-seven Hundred and Two (8702), thence southerly along the easterly line of said Lot Seven (#7) forty-five (45) feet to a point, thence southwesterly along the southeasterly line of Lot Seven (#7) fifteen (15) feet to a point, thence northerly in a direct line to a point on the northerly line of said Lot Seven (#7), said point being twenty-eight (28) feet northwesterly measured along the northerly line of said Lot Seven (#7) from the northeasterly corner of Lot Seven (#7), thence southeasterly along the northerly line of Lot Seven (#7) twenty-eight (28) feet more or less to the point of beginning.”
In 1943, the Alta San Rafael Company sold lot No. 7 to Walter and Marion Murphy (the Murphys). The Alta San Rafael Company, however, retained an approximately 45 square foot area of lot No. 7 in the 1943 sale. The description of the 1943 conveyance is: “Beginning at the Northeasterly corner of said Lot 7; thence Southerly along the Easterly line of said Lot, 45 feet to a point; thence Southwesterly along the Southeasterly line of said Lot, 15 feet to a point; thence Northerly in a direct line to a point on the Northerly line of said Lot, said point being 28 feet Westerly measured along the Northerly line of said Lot, from the Northeasterly corner of said Lot, thence Southeasterly along the Northerly line of said Lot, 28 feet to the point of beginning. [¶] ALSO EXCEPT that portion within the circumference of a circle having a radius of 38 feet whose center is situated at a point on the Southeasterly boundary of Lot 5 of said Tract distant 24½ feet Southwesterly from the most Easterly corner of said Lot 5.” There is no evidence that the parties recorded any final or parcel maps at the time of the 1943 conveyance. In 1953, the Alta San Rafael Company conveyed a 776 square foot portion of lot No. 6 to the Murphys. On June 10, 1958, the city adopted an ordinance requiring the minimum allowable lot area for lot No. 7 and similarly situated properties to be 20,000 square feet. Prior to 1958, the city required the minimum allowable lot area for lot No. 7 and similarly situated properties to be 12,000 square feet.
In 1970, in order to build a freeway, Caltrans condemned all of lot No. 8. Caltrans also condemned the approximately 970 square feet of land located on lot No. 7, which had been conveyed to the owners of lot No. 8 in 1931. This property is referred to in the final order of condemnation as parcel No. 4 of lot No. 7. The approximately 970 square foot parcel is referred to as Caltrans No. 1 by the parties. Caltrans also condemned a separate portion of lot No. 7, described as parcel No. 5(B) which the parties refer to as Caltrans No. 2. The final order of condemnation was issued in Los Angeles Superior Court. (People v. Thomas (Super.Ct., L.A. County, (May 28, 1970, No. 945849.) Parcel No. 4 was described as follows: “Beginning at the northeasterly corner of Lot 7 of said tract [8702] thence Southerly along the easterly line of said Lot 7, a distance of 45.00 feet; thence Southwesterly along the southeasterly line of said Lot 7, a distance of 15.00 feet; thence Northerly in a direct line to a point in the northerly line of said Lot 7, said point being 28.00 feet Northwesterly measured along the northerly line of said Lot 7, from said northeasterly corner of Lot 7; thence Southeasterly along the northerly line of said Lot 7, a distance of 28.00 feet to the Point of Beginning.” Parcel No. 5(B) was described as follows: “Beginning at a point in the southeasterly line of said Lot 7 distant thereon N 46° 42’ 45” E, 50.73 feet from the most southerly corner of said Lot 7; thence continuing along said southeasterly line N 46° 42’ 45” E, 50.27 feet; thence N 6°21’ 17” W, 9.56 feet; thence S 41°53’ 50” W, 50.28 feet; thence S 16°42’ 03” W, 6.83 feet to the Point of Beginning.” It is undisputed that the 1970 condemnation action reduced lot No. 7 to 11,780 square feet.
In 1974, Jeanne Cilley acquired lot No. 6. Ms. Cilley also acquired the remaining 11,780 square foot area of lot No. 7. The description of lot No. 7 obtained by Ms. Cilley excepted from it those portions of land that had been condemned by Caltrans in 1970. The description also excepted from lot No. 7 the 45 square foot portion of property previously retained by Alta San Rafael Company in 1943 described as: “ALSO EXCEPT that portion within the circumference of a circle having a radius of 38 feet whose center is situated at a point on the Southeasterly boundary of Lot 5 of said Tract [8702] distant thereon 24.5 feet southwesterly from the most easterly corner of said Lot 5.”
After Ms. Cilley acquired the property in 1974, she and her spouse applied to the Alta San Rafael Association for permission to build on lot No. 7. Their application was rejected. The Alta San Rafael Association denied the building application because lot No. 7 was “considerably less” than 20,000 square feet in area. When Ms. Cilley and her spouse were unable to build on the property, they became engaged in litigation with Title Insurance & Trust Company (the title company). In 1975, Ms. Cilley conveyed her interests in lots Nos. 6 and 7 to the title company.
In 1978, the title company conveyed lots Nos. 6 and 7 to Mr. Anderson’s parents. Mr. Anderson’s parents were also members of the Alta San Rafael Association in 1974 when Ms. Cilley and her husband were told lot No. 7 could not have a residence constructed on it due to its size. In 1993, Mr. Anderson’s parents acquired the portions of lot No. 7 that Caltrans had condemned in 1970, the so-called Caltrans Nos. 1 and 2 parcels described as parcel Nos. 4 and 5(B) in the condemnation order. The Director’s Deed which was recorded on December 13, 1993, granted to Mr. Anderson’s parents: “Those portions of Lot 7 of Tract No. 8702, as shown on [the] map recorded in Book 118, pages 1 and 2 of Maps in the office of the County Recorder of said county, acquired by the State of California by Parcel 4 (State Parcel 44484-2) and Parcel 5B (State Parcel 47410-2) of Final Order of Condemnation filed in the Superior Court Case No. 945849, in and for said county, a certified copy of said final order being recorded June 5, 1970 in Book D4733, page 337 of Official Records in said office.” Excluding the 45 square feet of lot No. 7 retained by the Alta San Rafael Association, Mr. Anderson’s parents acquired ownership of 13,023 square feet of lot No. 7. However, the entire area of lot No. 7 was 13,068 square feet.
In 2003, Mr. Anderson’s parents transferred their ownership interest in lot No. 7 and a portion of lot No. 6 to the Andersons by grant deed which provides: “Parcel 1: Lot 7 of Tract No. 8702, in the City of Pasadena, in the County of Los Angeles, State of California, as per map recorded in book 118 pages 1 and 2 of Maps, in the office of the county recorder of said county. [¶] Except that portion within the circumference of a circle having a radius of 38 feet whose center is situated at a point on the southeasterly boundary of lot 5 of said tract distant 24.5 feet southwesterly from the most easterly corner of said lot 5. [¶] Parcel 2: That portion of Lot 6 of Tract No. 8702, in the City of Pasadena, County of Los Angeles, State of California, as per map recorded in book 118 pages 1 and 2 of Maps, in the office of the county recorder of said county, within the circumference of a circle having a radius of 38.00 feet, whose center is situated at point of the southeasterly boundary of lot 5 of said tract distant thereon 24.50 feet southwesterly from the most easterly corner of said lot 5.” As noted, lot No. 7 consisted of 13,068 square feet. Plaintiffs predicate a substantial part of their arguments in this appeal on this 2003 gift grant deed.
B. The Proposed Development
The Andersons sought to develop a portion of the property they received from Mr. Anderson’s parents as a two-story single family residence. On June 12, 2002, the city through its zoning administrator, Denver Miller, advised Mr. Anderson’s parents about development on lot No. 7. Mr. Miller noted: “[Lot No. 7] [was] created as part of Tract 8702 approved by the City on or about August 13, 1925 which map of said subdivision was recorded on or about September 28, 1925 (Map Book #118-1-2). . . . [Lot No. 7] contains approximately 13,068 square feet (.30 acre).” Mr. Miller concluded that, because lot No. 7 was subdivided in 1925, it was a “non-conforming” parcel. As a result, lot No. 7 was not required to meet current regulations for lot size and width.
On December 16, 2004, the Andersons submitted a separate request for building and grading permits for the property at 52 Los Altos Drive to the city’s permit center. On March 26, April 8, July 1, and December 17, 2004, and July 29, 2005, plaintiffs objected to the issuance of the building and grading permits. On September 29, 2005, the city issued building and grading permits.
C. The Mandate Petition
On November 30, 2005, plaintiffs filed their mandate petition. The first amended petition, filed on February 9, 2007, alleged that the issuance of the building and grading permits were unlawful because lot No. 7 it did not meet the minimum size requirements. The verified first amended petition conceded that lot No. 7 was created in accordance with the law as it was in effect in 1925. However, plaintiffs alleged, among other things that: as lot No. 7 currently stands, it is an illegal lot; lot No. 7 “ceased to exist” when it was altered by subsequent conveyances; the alteration of lot No. 7 required evaluations and determinations as to whether it complies with current law; the Andersons are subdividers such that Subdivision Map Act applies to their actions; the bank’s recordation of a trust deed is a division of land requiring compliance with the parcel map requirements of the Subdivision Map Act; the property described in the building and grading permit applications pursuant to the 2003 gift grant deed from Mr. Anderson’s parents to the Andersons never came into legal existence; the proposed building site includes two remnants, Caltrans Nos. 1 and 2, which had been condemned away from and were no longer a part of lot No. 7; and the exercise of eminent domain was a division of land requiring compliance with the Subdivision Map Act.
Prior to filing the current mandate petition, plaintiffs raised similar issues in Sharp v. Anderson, (Super.Ct. L.A. County, 2005, No. GC034608). On July 18, 2005, in that case, the city’s demurrer to the complaint was sustained without leave to amend. The trial court ruled: “Plaintiff[s] [are] attempting to expand this private land dispute to include parties who have no rights or interests in the property. The city’s review and approval of [plaintiffs’] Building Permit Application is not a violation of the Subdivision Map Act. The Act can only be violated by the property owner.” On February 14, 2006, the trial court deemed the current mandate petition to be related to the other case where the demurrer to the second amended complaint was sustained without leave to amend.
On August 8, 2007, the trial court denied the first amended mandate petition in this case. The trial court found: “1. The City of Pasadena properly determined that the property proposed to be developed by the Andersons, and which is the subject of the Andersons’ applications for building and grading permits, is a legally nonconforming, and developable lot, in compliance with Pasadena Municipal Code Title 16 (Subdivisions) and State laws relating to the subdivision of real property. The city’s action was not arbitrary or capricious and was made based on evidentiary support. [¶] 2. The City of Pasadena properly issued building and grading permits . . . to the Andersons. [¶] 3. The transfer of those portions of property at issue in the case to Caltrans and from Caltrans, was not subject to the Subdivision Map Act. [Citation.] [¶] 4. The transfer of property from the Andersons’ predecessor-in-interest to the Andersons was not a transaction subject to the Subdivision Map Act. [¶] 5. The City of Pasadena’s review, approval and issuance of the [Paul] Andersons’ building and grading permits did not violate the Subdivision Map Act. [¶] 6. The financing by real party in interest Indymac Bank, FSB of the Andersons’ property for development did not violate the Subdivision Map Act.” Plaintiffs filed a notice of appeal on August 27, 2007.
III. DISCUSSION
A. Standard of Review
Code of Civil Procedure section 1085, subdivision (a) provides: “A writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by such inferior tribunal, corporation, board, or person.” Under Code of Civil Procedure section 1086: “The writ must be issued, in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law. It must be issued upon the verified petition of the party beneficially interested.” There are two requirements for a writ of mandate to issue. First, there must exist a clear, present and usually ministerial duty upon the part of the defendant. Second there must exist a clear, present and beneficial right in the plaintiff to the performance of that duty. (City of King City v. Community Bank of Central California (2005) 131 Cal.App.4th 913, 925; Unnamed Physician v. Board of Trustees (2001) 93 Cal.App.4th 607, 618.) Mandamus may not be used to control a body to exercise discretion in a particular manner. (Ridgecrest Charter School v. Sierra Sands Unified School Dist. (2005) 130 Cal.App.4th 986, 1002; Morris v. Harper (2001) 94 Cal.App.4th 52, 62.) Moreover, it is well-established that mandamus does not lie to compel the performance of any act which violates a statute, is illegal, aids an unlawful purpose, or is contrary to public policy. (California Highway Commission v. Riley (1923) 192 Cal. 97, 112; Cook v. Noble (1919) 181 Cal. 720, 721; County of San Luis Obispo v. Superior Court (2001) 90 Cal.App.4th 288, 292.) We apply a deferential standard of review determining whether the findings and judgment are supported by substantial evidence; however, questions of law are independently reviewed when the facts are undisputed. (Inglewood Redevelopment Agency v. Aklilu (2007) 153 Cal.App.4th 1095, 1114; Armando D. v. State, Dept. of Health Services (2004) 124 Cal.App.4th 13, 21.)
B. The Subdivision Map Act
1. Background
The history of the Subdivision Map Act was described in van’t Rood v. County of Santa Clara (2003) 113 Cal.App.4th 549, 563 as follows: “The Subdivision Map Act has regulated the division of land in California since the nineteenth century. ‘The first Subdivision Map Act was enacted in 1893. Subsequent versions of the Act were enacted in 1907, 1929, 1937 and 1943. The modern latest version of the Act was enacted as part of the Government Code in 1974.’ (Longtin, Cal. Land Use (2003 Supp.) Subdivisions, § 6.18, p. 463.) ‘All versions of the Act enacted subsequent to the first Act in 1893 contained grandfather clauses exempting from the current Act those subdivisions established in compliance with laws in effect when recorded.’ (Ibid.) [¶] In the earliest twentieth-century version of the Act, ‘development was left almost entirely to the discretion of the developer. The act provided for no governmental regulation, and required submission of a subdivision map to local officials only to allow them to check its accuracy in order to assure good title to the resulting parcels.’ (2 Longtin, Cal. Land Use (2d ed. 1987) Subdivisions, § 6.02, p. 582.) ‘With the advent of zoning in the 1920s, subdivision mapping began to assume some importance as a land use control.’ (Ibid.) The 1929 version of the Act first authorized local subdivision regulations. (Ibid.) The 1937 enactment first prohibited sellers from conveying subdivided lots without prior local approval. (Ibid.) ‘The 1937 enactment was the basis for the 1943 codification which, together with many amendments thereto, remained in effect until the 1974 recodification. [Citation.]’ (Ibid.) But by the late 1960’s, ‘many uncoordinated amendments’ had rendered the Act ‘so complex and disorganized that the need for recodification was apparent. Following attempts in 1971, 1972 and 1973, the Subdivision Map Act, which had been codified in the Business and Professions Code ([§] 11500 et seq.), was recodified in the [Government Code section] 66410 et seq. [Citation.]’ (Ibid.)”
The Subdivision Map Act is “‘the primary regulatory control’” which governs the subdivision of real property. (Gardner v. County of Sonoma (2003) 29 Cal.4th 990, 996; Hill v. City of Clovis (2000) 80 Cal.App.4th 438, 445.) Under the Subdivision Map Act, the “‘[r]egulation and control of the design and improvement of subdivisions’” is vested in local agency legislative bodies such as a city council which must adopt ordinances on the subject. (§ 66411; Gardner v. County of Sonoma, supra, 29 Cal.4th at p. 996.) Generally, developers must design their subdivisions in conformity with applicable general and specific plans and comply with local ordinances. (Id. at p. 997; see Hill v. City of Clovis, supra, 80 Cal.App.4th at p. 445.) Section 66424 defines a subdivision in part as follows: ‘“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. Property shall be considered as contiguous units, even if it is separated by roads, streets, utility easement or railroad rights-of-way.” (See Witt Home Ranch, Inc. v. County of Sonoma (2008) 165 Cal.App.4th 543, 559.)
As a general rule, there are two ways a developer may comply with the Subdivision Map Act. First, a developer may secure local approval of a tentative and final map pursuant to section 66426, when five or more parcels are involved. Second, when four or fewer parcels are involved, a developer may obtain approval of and record a parcel map pursuant to section 66428. (Gardner v. County of Sonoma, supra, 29 Cal.4th at p. 997; see John Taft Corp. v. Advisory Agency (1984) 161 Cal.App.3d 749, 755.) Before a tentative and final map or a parcel map may be approved, the local agency must conduct an extensive review of the proposed subdivision and consider such matters as dedication issues and the: property’s suitability for development; adequacy of roads, sewer, drainage, and other services; and preservation of sensitive natural resources and farm lands. (Gardner v. County of Sonoma, supra, 29 Cal.4th at p. 997; Hanshaw v. Long Valley Road Assn. (2004) 116 Cal.App.4th 471, 478.) Our Supreme Court has explained: “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.) 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; see also Hill v. City of Clovis, supra, 80 Cal.App.4th at p. 445.)” (Gardner v. County of Sonoma, supra, 29 Cal.4th at pp. 997-998.)
Section 66426 provides: “A tentative and final map shall be required for all subdivisions creating five or more parcels, five or more condominiums as defined in Section 783 of the Civil Code, a community apartment project containing five or more parcels, or for the conversion of a dwelling to a stock cooperative containing five or more dwelling units, except where any one of the following occurs: [¶] (a) The land before division contains less than five acres, each parcel created by the division abuts upon a maintained public street or highway, and no dedications or improvements are required by the legislative body. [¶] (b) Each parcel created by the division has a gross area of 20 acres or more and has an approved access to a maintained public street or highway. [¶] (c) The land consists of a parcel or parcels of land having approved access to a public street or highway, which comprises part of a tract of land zoned for industrial or commercial development, and which has the approval of the governing body as to street alignments and widths. [¶] (d) Each parcel created by the division has a gross area of not less than 40 acres or is not less than a quarter of a quarter section. [¶] (e) The land being subdivided is solely for the creation of an environmental subdivision pursuant to Section 66418.2. [¶] (f) A parcel map shall be required for those subdivisions described in subdivisions (a), (b), (c), (d), and (e).”
Section 66428, subdivision (a) states in part, “A parcel map shall be required for subdivisions as to which a final or parcel map is not otherwise required by this chapter, unless the preparation of the parcel map is waived by local ordinance as provided in this section.”
A developer may request a determination from the appropriate local agency as to whether the property at issue complies with the Subdivision Map Act and applicable local ordinances. (§ 66499.35, subd. (a); Gardner v. County of Sonoma, supra, 29 Cal.4th at p. 998.) If the property is found in compliance, the agency issues a certificate of compliance which is recorded in the county where the parcel is located. (§ 66499.35, subd. (a) ; Gardner v. County of Sonoma, supra, 29 Cal.4th at p. 998.) Conversely, if the property is non-compliant, the local agency issues a conditional certificate of compliance, imposing conditions that the owner must fulfill. (§ 66499.35, subd. (b); Gardner v. County of Sonoma, supra, 29 Cal.4th at p. 998.) No property may be sold, leased, or financed nor may construction be commenced on a parcel that is non-compliant with the Subdivision Map Act. (§ 66499.30, subd. (a); Black Hills Investments, Inc. v. Albertson’s, Inc. (2007) 146 Cal.App.4th 883, 890.)
Section 66499.35, subdivision (f)(1)(E) provides: “Each certificate of compliance or conditional certificate of compliance shall include information the local agency deems necessary, including, but not limited to, all of the following: [¶] (A) Name or names of owners of the parcel. [¶] (B) Assessor parcel number or numbers of the parcel. [¶] (C) The number of parcels for which the certificate of compliance or conditional certificate of compliance is being issued and recorded. [¶] (D) Legal description of the parcel or parcels for which the certificate of compliance or conditional certificate of compliance is being issued and recorded. [¶] (E) A notice stating as follows: [¶] This certificate relates only to issues of compliance or noncompliance with the Subdivision Map Act and local ordinances enacted pursuant thereto. The parcel described herein may be sold, leased, or financed without further compliance with the Subdivision Map Act or any local ordinance enacted pursuant thereto. Development of the parcel may require issuance of a permit or permits, or other grant or grants of approval.”
Section 66499.30 provides in part: “(a) No person shall sell, lease, or finance any parcel or parcels of real property or commence construction of any building for sale, lease or financing thereon, except for model homes, or allow occupancy thereof, for which a final map is required by this division or local ordinance, until the final map thereof in full compliance with this division and any local ordinance has been filed for record by the recorder of the county in which any portion of the subdivision is located. [¶] (b) No person shall sell, lease or finance any parcel or parcels of real property or commence construction of any building for sale, lease or financing thereon, except for model homes, or allow occupancy thereof, for which a parcel map is required by this division or local ordinance, until the parcel map thereof in full compliance with this division and any local ordinance has been filed for record by the recorder of the county in which any portion of the subdivision is located.”
2. Issuance of the grading and building permits did not violate the Subdivision Map Act.
a. Overview
As noted, plaintiffs argue no building and grading permits can lawfully issue because lot No. 7 is an illegal lot because it violates the Subdivision Map Act. The gist of plaintiffs’ numerous contentions is that lot No. 7 is only a conglomeration of parcels of property which does not comply with the Subdivision Map Act. Plaintiffs reason: “[t]he only legally established lot of land was the original Lot 7 of Tract 8702”; lot No. 7 has not existed since 1931 due to numerous transactions; and lot No. 7 cannot be re-created without complying with the provisions of the Subdivision Map Act or local ordinances in effect at the time of the transactions which altered Lot No. 7; and citing Hill v. City of Manhattan Beach (1971) 6 Cal.3d 279, plaintiffs argue lot No. 7 is illegal because it was not merged or otherwise altered in accordance with the laws in effect since its creation. According to plaintiffs, before the four parcels could be combined into one lot, a parcel map was required under sections 66426 and 66499.30, subdivision (b) and Civil Code section 1093. Citing section 66451.10, subdivision (a), Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 731, and People ex rel. Brown v. Tehama County Bd. of Supervisors (2007) 149 Cal.App.4th 422, 435, plaintiffs argue there is no automatic merger by virtue of common ownership.
b. The conveyances after 1925 did not render lot No. 7 illegal.
To begin with, plaintiffs insist that lot No. 7 “ceased to exist” in 1931. Plaintiffs reason the Alta San Rafael Company and its successors conveyed various portions of lot No. 7 beginning in 1931. Plaintiffs have not cited any pertinent authority which shows lot No. 7 “ceased to exist” because at some points in time portions of it were owned by different parties. Aside from the dearth of authority to support this claim, plaintiffs’ premise is based on the faulty assumption that compliance with the Subdivision Map Act was required in 1931 and in 1943 when portions of lot No. 7 were conveyed. Prior to 1974, the Subdivision Map Act did not apply to divisions of land in which only four or fewer parcels were created. (People ex rel. Brown v. Tehama County Bd. of Supervisors, supra, 149 Cal.App.4th at p. 438; van’t Rood v. County of Santa Clara, supra, 113 Cal.App.4th at pp. 565-566.) Nevertheless, a subdivision could still be subject to any local ordinances which were in existence. (People ex rel. Brown v. Tehama County Bd. of Supervisors, supra, 149 Cal.App.4th at p. 438; Stell v. Jay Hales Development Co. (1992) 11 Cal.App.4th 1214, 1224, disapproved on a different point in Citizens for Covenant Compliance v. Anderson (1995) 12 Cal.4th 345, 359, 366.) Plaintiffs concede in their reply brief that the city did not regulate minor subdivisions until 1977. Thus, no state or local regulations required final or parcel maps for the 1931 and 1943 divisions of lot No. 7. As a result, the conveyances of portions of lot No. 7 which occurred in 1931 or 1943 did not render the parcel illegal because there was no requirement to file a final or parcel map.
In sum, the record shows that lot No. 7 was legally created in 1925. Although portions of lot No. 7 were conveyed to private parties in 1931 and 1943, the conveyances were not subject to the Subdivision Map Act because the Act did not apply to conveyances of less than five parcels prior to 1970. Hence, there is no merit to the contention that any conveyances in 1931 or 1943 affected the legality of lot No. 7.
c. Actions taken in connection with the condemned parcels did not cause any illegalities.
Moreover, no violation of the Subdivision Map Act occurred when Caltrans condemned portions of lot No. 7 and in 1993 and conveyed the condemned portions to Mr. Anderson’s parents. Our Supreme Court has held that, as a general rule, the Subdivision Map Act does not apply to a subdivision of land that is made by a public entity when the subdivision is authorized by law. (Morris v. Reclamation District No. 108 (1941) 17 Cal.2d 43, 53; see also 75 Ops.Cal.Atty.Gen. 98, 100 (1992).) In interpreting Morris v. Reclamation District No. 108, supra, 17 Cal.2d at page 53 and other Supreme Court cases, the Attorney General noted that a public agency acting within its sovereign power is not a “subdivider” for purposes of the Subdivision Map Act. (75 Ops.Cal.Atty.Gen., supra, at p. 100.) From various authorities, the Attorney General has extrapolated that public agencies are not required to comply with the Subdivision Map Act or local ordinances if their inclusion infringed upon sovereign governmental powers. (62 Ops.Cal.Atty.Gen. 140, 144 (1979) citing Morris v. Reclamation District No. 108, supra, 17 Cal.2d at p. 53 and City of Los Angeles v. City of San Fernando (1975) 14 Cal.3d 199, 276-277, disapproved on a different point in City of Barstow v. Mojave Water Agency (2000) 23 Cal.4th 1224, 1248.) The Department of Transportation has eminent domain powers over property necessary for state highway purposes. (Sts. & Hy. Code, § 102.) Caltrans’ acquisition of the properties by eminent domain was an exercise of its sovereign power. (Cal. Const., art. I, § 19; Pool v. Butler (1903) 141 Cal. 46, 49; People v. Superior Court of Los Angeles County (1942) 47 Cal.App.2d 393, 404-405.) Accordingly, because Caltrans was not a subdivider when it condemned the parcels in 1970, no parcel map preparation or other compliance with the Subdivision Map Act was required.
Likewise, compliance with the Subdivision Map Act was required when Caltrans conveyed the parcels identified as Caltrans No. 1 and No. 2 to Mr. Anderson’s parents in 1993. Caltrans’ conveyance of the two parcels was permitted by Streets and Highways Code section 118.6 which provides in part, “The department shall, to the greatest extent possible, offer to sell or exchange excess real property. . . .” No doubt, there have been circumstances where a governmental entity may be considered a subdivider when disposing of land. (See Gomes v. County of Mendocino, supra, 37 Cal.App.4th at p. 984 citing 62 Ops. Cal. Atty. Gen. 140 (1979).) However, section 66428 states in part: “(a) Local ordinances may require a tentative map where a parcel map is required by this chapter. A parcel map shall be required for subdivisions as to which a final or parcel map is not otherwise required by this chapter, unless the preparation of the parcel map is waived by local ordinance as provided in this section. A parcel map shall not be required for . . . the following: . . . [¶] (2) Land conveyed to or from a governmental agency, public entity, public utility, or for land conveyed to a subsidiary of a public utility for conveyance to that public utility for rights-of-way, unless a showing is made in individual cases, upon substantial evidence, that public policy necessitates a parcel map. For purposes of this subdivision, land conveyed to or from a governmental agency shall include a fee interest, a leasehold interest, an easement, or a license.” (Emphasis added.) Thus, section 66428 specifically excludes public agencies from the application of local ordinances requiring a parcel map when land is conveyed by or to a public agency unless a showing is made that public policy necessitates a parcel map. No such showing was made that there was a public policy necessitating a parcel map in this particular case. As a result, no parcel map was required.
In sum, none of the Caltrans conveyances were subject to the Subdivision Map Act such that lot No. 7 somehow became an illegal lot. The trial court correctly ruled the Subdivision Map Act does not apply to the actions taken in connection with the Caltrans parcels. This is because Caltrans was not a subdivider when it condemned the parcels in 1970 and there is no evidence that public policy necessitated a parcel map be prepared when the property was conveyed to Mr. Anderson’s parents in 1993.
C. Merger
1. Overview
The 2003 gift grant deed conveys to the Andersons four parcels or units of property. The 2003 gift grant deed contained a description of the following four parcels: Caltrans No. 1 located on lot No. 7; Caltrans No. 2, located on lot No. 7; the 11,780 square feet remnant of lot No. 7; and Lot No. 6. It is undisputed that the total amount of the parcels described as lot No. 7 is in excess of 12,000 square feet.
What is disputed is plaintiffs’ assertion that Mr. Anderson’s parents tried to accomplish a merger by the 2003 gift grant deed. Plaintiffs assert that lot No. 7 is illegal because the 2003 gift grant deed was an attempt to merge and re-subdivide several lots without complying with either Civil Code section 1093 or applicable Subdivision Map Act merger provisions. Plaintiffs rely on the following decisions in support of their merger analysis: Morehart v. County of Santa Barbara, supra, 7 Cal.4th at p. 731; People ex rel. Brown v. Tehama County Board of Supervisors, supra, 149 Cal.App.4th at p. 435; and Lakeview Meadows Ranch v. County of Santa Clara (1994) 27 Cal.App.4th 593, 600. As a result, plaintiffs assert that the city had a duty to not issue the grading and building permits.
The city and the bank argue there is no merger and reconstitution issue. They argue because lot No. 7 is the same as it was prior to Caltrans’ condemnation action, it was never subject to the Subdivision Map Act. Furthermore, the city asserts that the Andersons were not attempting to have four parcels of property merged into one parcel simply because their grading and building permit applications included a description of four parcels of property including: Caltrans No. 1; Caltrans No. 2; the 11,780 square feet remnant; and lot No. 6 which they already owned. Rather, the city contends that the Andersons merely included in their application for building and grading permits to develop lot No. 7 a description of property on lot No. 6 that they also owned. The city maintains that the Andersons only applied to develop 12,846 square feet of lot No. 7; an issue which the Andersons clarified prior to the issuance of the permits.
2. Merger principles did not bar the city from issuing a permit.
A merger occurs when two lots which are commonly owned are combined. (van’t Rood v. County of Santa Clara, supra, 113 Cal.App.4th at p. 566.) Plaintiffs concede that there is no automatic merger of contiguous parcels under the current Subdivision Map Act. (See Morehart v. County of Santa Barbara, supra, 7 Cal.4th at pp. 755-760.) However, in 1976 the Legislature enacted former section 66424.2 to provide there was automatic merger of contiguous parcels or units held by the same owner which did not conform to minimum size requirements. (Stats. 1976, ch. 928, § 4, p. 2120; see also Morehart v. County of Santa Barbara, supra, 7 Cal.4th at p. 755; Moores v. Board of Supervisors of Mendocino County (2004) 122 Cal.App.4th 883, 886.) By 1977, the Legislature had amended former section 66424.2 to replace the provision for automatic merger. The 1977 legislation gave local agencies authority to effect a merger. But this could occur only when the local agency recorded a notice of merger and provided the affected parties with an opportunity to be address the issue. In sum, prior to 1977, the common ownership of contiguous properties resulted in an automatic merger. As of 1977, Legislature decided that the common ownership of contiguous properties would not result in an automatic merger. Rather, the local agency could effect the merger but only after the local agency complied with procedural safeguards. As shown below, the local agency in this case has not chosen to enact any local ordinances to effect merger of contiguous parcels by virtue of common ownership.
In 1977, former section 66424.2 read as follows: “Notwithstanding Section 66424, 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 were not subject to such provisions at the time of their creation shall not merge by virtue of the fact that such 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 such contiguous parcels or units, or any of them; except that, a local agency may, by ordinance, provide that if any one of such contiguous parcels or units held by the same owner does not conform to standards for minimum parcel size to permit use or development under a zoning, subdivision or other ordinance of the local agency and at least one of such contiguous parcels or units is not developed with a building for which a permit has been issued by the local agency, or which was built prior to the time such permits were required by the local agency then such parcels shall be merged for the purposes of this division. [¶] A local agency may, by ordinance, deem any or all parcels or units of land which merged prior to the effective date of the 1977 amendments to this section, unmerged and separate parcels. [¶] Whenever a local agency has knowledge that real property has merged pursuant to this section or a local ordinance enacted pursuant to this section, it shall cause to be filed for record with the recorder of the county in which the real property is located, a notice of such merger specifying the names of the record owners and particularly describing the real property, provided that, at least 30 days prior to the recording of the notice the owner of the parcels or units to be affected by the merger, shall be advised in writing of the intention to record the notice and specifying a time, date and place at which the owner may present evidence to the legislative body or advisory agency why such notice should not be recorded.” (Stats. 1977, ch. 234, § 5, pp. 1034-1035.)
Since 1983, the merger statutes have been contained in sections 66451.10 through 66451.21. Section 66451.10 of the Subdivision Map Act sets forth merger standards for two or more parcels or units of land. Section 66451.10 provides: “(a) Notwithstanding Section 66424, except as is otherwise provided for in this article, 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.” Section 66451.11 authorizes a local agency to effectuate a merger of contiguous parcels or units held by the same owner which do not conform to minimum standards for parcel size. However, the local agency’s authority must be exercised under specific procedural requirements including: notice to the owner (§§ 66451.12-66451.13); an opportunity to be heard (§§ 66451.14-66451.15); and a recordation of a notice of merger. (§§ 66451.16-6651.18.) (See also § 66451.19; Kalway v. City of Berkeley (2007) 151 Cal.App.4th 827, 831.) The current merger provisions have two overall concerns. The first is to provide landowners with the procedural safeguards of notice and opportunity to be heard before lots can be involuntarily merged. (Morehart v. County of Santa Barbara, supra, 7 Cal.4th at p. 752; see also van’t Rood v. County of Santa Clara, supra, 113 Cal.App.4th at pp. 567-568.) Our Supreme Court described the second legislative concern thusly, “[A]lthough the merger provisions’ literal terms apply only to local agency initiated merger of parcels for purposes of sale, lease, or financing, an examination of the ‘whole purpose and scope of the legislative scheme’ [citation] reveals a state concern over local regulation of parcel merger for purposes of development as well.” (Morehart v. County of Santa Barbara, supra, 7 Cal.4th at p. 752, italics omitted; see also van’t Rood v. County of Santa Clara, supra, 113 Cal.App.4th at pp. 567-568.)
Section 66451.11 provides: “A local agency may, by ordinance which conforms to and implements the procedures prescribed by this article, provide for the merger of a parcel or unit with a contiguous parcel or unit held by the same owner if any one of the contiguous parcels or units held by the same owner does not conform to standards for minimum parcel size, under the zoning ordinance of the local agency applicable to the parcels or units of land and if all of the following requirements are satisfied: [¶] (a) At least one of the affected parcels is undeveloped by any structure for which a building permit was issued or for which a building permit was not required at the time of construction, or is developed only with an accessory structure or accessory structures, or is developed with a single structure, other than an accessory structure, that is also partially sited on a contiguous parcel or unit. [¶] (b) With respect to any affected parcel, one or more of the following conditions exists: [¶] (1) Comprises less than 5,000 square feet in area at the time of the determination of merger. [¶] (2) Was not created in compliance with applicable laws and ordinances in effect at the time of its creation. [¶] (3) Does not meet current standards for sewage disposal and domestic water supply. [¶] (4) Does not meet slope stability standards. [¶] (5) Has no legal access which is adequate for vehicular and safety equipment access and maneuverability. [¶] (6) Its development would create health or safety hazards. [¶] (7) Is inconsistent with the applicable general plan and any applicable specific plan, other than minimum lot size or density standards. [¶] The ordinance may establish the standards specified in paragraphs (3) to (7), inclusive, which shall be applicable to parcels to be merged. [¶] This subdivision shall not apply if one of the following conditions exist: [¶] (A) On or before July 1, 1981, one or more of the contiguous parcels or units of land is enforceably restricted open-space land pursuant to a contract, agreement, scenic restriction, or open-space easement, as defined and set forth in Section 421 of the Revenue and Taxation Code. [¶] (B) On July 1, 1981, one or more of the contiguous parcels or units of land is timberland as defined in subdivision (f) of Section 51104, or is land devoted to an agricultural use as defined in subdivision (b) of Section 51201. [¶] (C) On July 1, 1981, one or more of the contiguous parcels or units of land is located within 2,000 feet of the site on which an existing commercial mineral resource extraction use is being made, whether or not the extraction is being made pursuant to a use permit issued by the local agency. [¶] (D) On July 1, 1981, one or more of the contiguous parcels or units of land is located within 2,000 feet of a future commercial mineral extraction site as shown on a plan for which a use permit or other permit authorizing commercial mineral resource extraction has been issued by the local agency. [¶] (E) Within the coastal zone, as defined in Section 30103 of the Public Resources Code, one or more of the contiguous parcels or units of land has, prior to July 1, 1981, been identified or designated as being of insufficient size to support residential development and where the identification or designation has either (i) been included in the land use plan portion of a local coastal program prepared and adopted pursuant to the California Coastal Act of 1976 (Division 20 of the Public Resources Code), or (ii) prior to the adoption of a land use plan, been made by formal action of the California Coastal Commission pursuant to the provisions of the California Coastal Act of 1976 in a coastal development permit decision or in an approved land use plan work program or an approved issue identification on which the preparation of a land use plan pursuant to the provisions of the California Coastal Act is based. [¶] For purposes of paragraphs (C) and (D) of this subdivision, ‘mineral resource extraction’ means gas, oil, hydrocarbon, gravel, or sand extraction, geothermal wells, or other similar commercial mining activity. [¶] (c) The owner of the affected parcels has been notified of the merger proposal pursuant to Section 66451.13, and is afforded the opportunity for a hearing pursuant to Section 66451.14. [¶] For purposes of this section, when determining whether contiguous parcels are held by the same owner, ownership shall be determined as of the date that notice of intention to determine status is recorded.”
The involuntary merger issue has no application to this case. Plaintiffs acknowledge such. In People ex rel. Brown v. Tehama County Bd. of Supervisors, supra, 149 Cal.App.4th at page 435, citing Civil Code section 1093, our colleague Associate Justice Ronald B. Robie explained, “[W]hen two or more parcels that have been separately and distinctly described in an instrument of conveyance or security document are subsequently conveyed together using a single, consolidated legal description, those parcels are not merged into a single parcel absent an express statement by the grantor of the intent to do so in the instrument of conveyance.” Section 66451.10 deals with so-called involuntary mergers imposed by a local agency. Section 66451.10 requires the local agency to comply with the procedural safeguards to initiate a merger. (Morehart v. County of Santa Barbara, supra, 7 Cal.4th at pp. 755-759, 761; Gomes v. County of Mendocino, supra, 37 Cal.App.4th at pp. 988-989.) Thus, by its express language section 66451.10 regulates local agency initiated mergers to effect the parcels’ “sale, lease, or financing” and as our Supreme Court has held does entirely cover the subject of zoning laws that require parcel merger as a condition to issuance of a development permit. (Morehart v. County of Santa Barbara, supra, 7 Cal.4th at p. 752.)
This case does not involve a local agency’s initiated merger. Rather, it concerns building and grading permits. The city has not ever taken any action to merge the various parcels of lot No. 7. Furthermore, the city has never determined that there was a need to merge the parcels such that the involuntary merger provisions are applicable to this case. Indeed, as plaintiffs concede, the city has no merger ordinances. Accordingly, the 2003 gift grant deed did not violate section 66451.10 because there was never any issue of a local agency initiated merger.
Even if the merger principles of the Subdivision Map Act somehow applied, they do not limit the city’s power to grant a grading or building permit based on a neighboring landowner’s claim of non-compliance. As noted above, section 66451.10 is limited to a local agency’s authority to merge parcels that are being sold, leased, or financed. (Morehart v. County of Santa Barbara, supra, 7 Cal.4th at pp. 748-751.) The consequences of a local agency’s failure to comply with merger standards is governed by section 66451.19, subdivisions (d) and (e) which provide: “(d) The failure of a local agency to comply with the requirements of this article for the merger of contiguous parcels or units of land held in common ownership shall render void and ineffective any resulting merger or recorded notice of merger and no further proceedings 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 those contiguous parcels or units, or any of them, until such time as the parcels or units of land have been lawfully merged by subsequent proceedings initiated by the local agency which meet the requirements of this article. [¶] (e) The failure of a local agency to comply with the requirements of any prior law establishing requirements for the merger of contiguous parcels or units of land held in common ownership, shall render voidable any resulting merger or recorded notice of merger. From and after the date the local agency determines that its actions did not comply with the prior law, or a court enters a judgment declaring that the actions of the agency did not comply with the prior law, no further proceedings 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 such contiguous parcels or units, or any of them, until such time as the parcels or units of land have been lawfully merged by subsequent proceedings initiated by the local agency which meet the requirements of this article.”
Under this statute, the failure of a local agency to comply with any applicable merger principles renders such a merger voidable. (66451.19, subd. (e).) Further, pursuant to section 66451.19, subdivision (d), “The only consequence imposed upon a local agency’s failure to comply with the prescribed merger-ordinance procedures is that the parcels may be separately sold, leased or financed as if unmerged.” (Morehart v. County of Santa Barbara, supra, 7 Cal.4th at p. 749.) As can be noted, involuntary merger principles are unrelated to the issuance of the grading and building permits at issue in this case.
In addition, nothing in section 66499.32 restrained the city from issuing the building and grading permits. Section 66499.32, subdivision (a) provides in that respect: “Any deed of conveyance, sale or contract to sell real property which has been divided, or which has resulted from a division, in violation of the provisions of this division, or of the provisions of local ordinances enacted pursuant to this division, is voidable at the sole option of the grantee, buyer or person contracting to purchase, his heirs, personal representative, or trustee in insolvency or bankruptcy within one year after the date of discovery of the violation of the provisions of this division or of local ordinances enacted pursuant to the provisions of this division . . . .” Thus, a conveyance in violation of the Subdivision Map Act is only voidable within one-year after discovery of the violation at the “sole option” by one of the specified parties. Plaintiffs are not among the specified parties who may seek to have the conveyance voided. (See Le Gault v. Erickson (1999) 70 Cal.App.4th 369, 375 [the choice of voiding the deed within one year of discovering violation of the Subdivision Map Act belongs to buyer and not a junior lienholder who lacks standing to raise the lack of compliance]; see also Kalway v. City of Berkeley, supra, 151 Cal.App.4th at pp. 836-837 [although remedies may be available to prevent further conveyances, the city may not cancel a grant deed]; Stell v. Jay Hales Development Co., supra, 11 Cal.App.4th at pp. 1227-1228 [neighboring landowners “are not among those who have the option of having [a] conveyance voided” for a violation of the Subdivision Map Act].)
In addition, section 66499.33 does not bar the city from issuing the building and grading permits. Section 66499.33 provides: “This division does not bar any legal, equitable or summary remedy to which any aggrieved local agency or other public agency, or any person, firm, or corporation may otherwise be entitled, and any such local agency or other public agency, or such person, firm, or corporation may file a suit in the superior court of the county in which any real property attempted to be subdivided or sold, leased, or financed in violation of this division or local ordinance enacted pursuant thereto is located, to restrain or enjoin any attempted or proposed subdivision or sale, lease, or financing in violation of this division or local ordinance enacted pursuant thereto.” This section allows a private party to seek to restrain or enjoin an attempted or proposed subdivision or sale, lease, or financing. But plaintiffs have not sought to restrain or enjoin a proposed subdivision or sale, lease, or financing. Rather, plaintiffs are challenging the issuance of building permits. Section 66499.33 does not provide that a building or grading permit may be denied because of a Subdivision Map Act violation..
Further, plaintiffs argue there has been no merger or resubdivision under the Subdivision Map Act. Section 66499.20 1/2 provides in part: “Subdivided lands may be merged and resubdivided without reverting to acreage by complying with all the applicable requirements for the subdivision of land as provided by this division and any local ordinances adopted pursuant thereto. The filing of the final map or parcel map shall constitute legal merging of the separate parcels into one parcel and the resubdivision of such parcel, and the real property shall thereafter be shown with the new lot or parcel boundaries on the assessment roll. Any unused fees or deposits previously made pursuant to this division pertaining to the property shall be credited pro rata towards any requirements for the same purposes which are applicable at the time of resubdivision. Any public streets or public easements to be left in effect after the resubdivision shall be adequately delineated on the map. After approval of the merger and resubdivision by the governing body or advisory agency the map shall be delivered to the county recorder. The filing of the map shall constitute legal merger and resubdivision of the land affected thereby, and shall also constitute abandonment of all public streets and public easements not shown on the map, provided that a written notation of each abandonment is listed by reference to the recording data creating these public streets or public easements, and certified to on the map by the clerk of the legislative body or the designee of the legislative body approving the map.”
A city may authorize mergers of contiguous parcels under common ownership pursuant to section 66499.20 3/4 which provides: “A city or county may, by ordinance, authorize the merger of contiguous parcels under common ownership without reverting to acreage. Such ordinance shall require the recordation of an instrument evidencing the merger.” Moreover, a local agency may require as a condition to issuance of a permit that the landowner voluntarily merge certain parcels. (Morehart v. County of Santa Barbara, supra, 7 Cal.4th at p. 751; van’t Rood v. County of Santa Clara, supra, 113 Cal.App.4th at p. 569.) However, there is no voluntary merger issue in the present case. This is because, as plaintiffs concede, the city has imposed no condition of granting the building and grading permit applications that any owner of any contiguous parcels merge them in order to develop one of them. Indeed, the city has never deemed that the property had been merged by virtue of the 2003 gift grant deed. Furthermore, the city determined that lot No. 7 was in compliance with the Subdivision Map Act as well as its local ordinances. (Stell v. Jay Hales Development Co., supra, 11 Cal.App.4th at pp. 1227-1228.)
Equally unpersuasive is plaintiffs’ contention that Caltrans No. 1 has been a part of lot No. 8 since the 1931 conveyance to the Voorhis’. Plaintiffs argue, in effect, that the 1931 conveyance amounted to a merger between the conveyed lot Nos. 7 and 8 because of common ownership. Plaintiffs contend that the 1970 condemnation order reflects that Caltrans considered the parcel to be a part of lot No. 8. But, the 1970 condemnation judgment does not state Caltrans condemned Caltrans No. 1 as part of lot No. 8. Rather, the legal description of Caltrans No. 1 (also described as parcel 4) from The Final Order of Condemnation was: “Beginning at the northeasterly corner of Lot 7 of said tract [8702] thence Southerly along the easterly line of said Lot 7, a distance of 45.00 feet; thence Southwesterly along the southeasterly line of said Lot 7, a distance of 15.00 feet; thence Northerly in a direct line to a point in the northerly line of said Lot 7, said point being 28.00 feet Northwesterly measured along the northerly line of said Lot 7, from said northeasterly corner of Lot 7; thence Southeasterly along the northerly line of said Lot 7, a distance of 28.00 feet to the Point of Beginning.” It is clear from this description that the parcel being condemned was part of lot No. 7 even though it had been conveyed to the Voorhis’ in 1931. There is no merit to plaintiffs’ argument that the parcel referred to as Caltrans No. 1 was a part of lot No. 8 and was considered as such in the 1970 condemnation action.
3. The 2003 gift grand deed does not violate Civil Code section 1093
Plaintiffs argue the 2003 gift grant deed from Mr. Anderson’s parents violates Civil Code section 1093 which provides: “Absent the express written statement of the grantor contained therein, the consolidation of separate and distinct legal descriptions of real property contained in one or more deeds, mortgages, patents, deeds of trust, contracts of sale, or other instruments of conveyance or security documents, into a subsequent single deed, mortgage, patent, deed of trust, contract of sale, or other instrument of conveyance or security document (whether by means of an individual listing of the legal descriptions in a subsequent single instrument of conveyance or security document, or by means of a consolidated legal description comprised of more than one previously separate and distinct legal description), does not operate in any manner to alter or affect the separate and distinct nature of the real property so described in the subsequent single instrument of conveyance or security document containing either the listing of or the consolidated legal description of the parcels so conveyed or secured thereby. [¶] This section does not constitute a change in, but is declaratory of, the existing law.” Plaintiffs contend that the 2003 gift grant deed illegally attempted to merge the properties by conveying the 11,780 square foot remnant Caltrans Nos. 1 and 2, and lot No. 6 to the Andersons in the grant deed without a written statement of intent. There was nothing in the 2003 gift grant deed which states Mr. Anderson’s parents intended to effect a merger with the conveyance by including a description of the parcels. There is no “express written statement” by Mr. Anderson’s parents to alter the nature of the property as explicitly required by Civil Code section 1093. (Lakeview Meadows Ranch v. County of Santa Clara, supra, 27 Cal.App.4th at p. 600.) The fact that there was a legal description of lot Nos. 6 and 7 in the 2003 gift grant deed does not mean that there was an unauthorized merger of the two lots.
4. Plaintiffs have not established the bank violated the Subdivision Map Act.
Plaintiffs contend that the bank’s recordation of the trust deed securing the construction loan created an illegal lot. Plaintiffs’ sole support for their theory is an Attorney General opinion. (58 Ops.Cal.Atty.Gen. 408, 416 (1975).) The Attorney General opinion stated: “The effect of placing several deeds of trust securing obligations on several different parts of a unit of land is the division of the land into separate portions by the placement of liens on those portions, by the demarcation on a plot map and legal description of those portions, and by the transfer of legal title and beneficial interest in these portions of the unit of land. It is clear that each portion is given identity separate from the unit of land and from other portions therein so that division into parcels occurs.” (Ibid.) However, there is no such division in this case. The bank did not record trust deeds to secure different parts of a unit of land. Rather, there is only one trust deed recorded to secure the loan made to the Andersons. Thus, the Attorney General opinion does not support plaintiffs’ theory that the recording of the trust deed describing more than one parcel of land was a subdivision.
D. Compliance with Local Ordinances
Plaintiffs contend that even if there was no violation of the Subdivision Map Act, the issuance of the building and grading permit violates the various municipal code provisions. Plaintiffs contend no building and grading permits could be issued to the Andersons because the lot size does not comply with the minimum 20,000 square footage requirement. Municipal Code section 16.40.020 provides: “A. No person shall sell, lease, finance, or transfer title to any minor land division, or portion thereof, or offer to do so, or contract to do so, until a parcel map thereof has been filed in the office of the recorder of this county, in full compliance with provisions of the Subdivision Map Act and all applicable provisions of this title, or until a certificate of exception has been issued in compliance with Section 16.40.040. [¶] B. This section shall not apply to those divisions of land complying with the provisions of all applicable ordinances and state laws filed in the office of the county recorder prior to May 2, 1967. [¶] C. A subdivider may fulfill the requirements of this section by filing a final map on any minor land division. [¶] D. No building shall be constructed, nor shall a permit for the construction of a building be issued, nor shall any portion of any parcel be used when not conforming to the provisions of this section. (Ord. 5325 § 1(A), 1977; Ord. 4815 § 11.02, 1967).” Municipal Code section 17.40.040 provides in part: “A. Use of a substandard lot. A legally created substandard lot may be granted the land use permit required by Article 2 for a use allowed by the applicable zoning district without needing a Variance for lot width or area. The development of an illegally created lot is prohibited.”
Here, the city found that lot No. 7 is a legally nonconforming lot. Municipal Code section 17.71.110 provides in part: “Determination of nonconforming status. [¶] A nonconforming lot of record that does not comply with the current access, area, or dimensional requirements of this Zoning Code for the zoning district in which it is located, shall be considered to be a legal building site if it meets one of the criteria specified by this Section. The applicant shall be responsible for providing sufficient evidence to establish the applicability of one or more of the following to the satisfaction of the Zoning Administrator. [¶] . . . [¶] Individual lot legally created by deed. The lot is under one ownership and record, and was legally created by a recorded deed before the effective date of the zoning amendment that made the lot nonconforming or before the City adopted regulations requiring a Parcel Map for minor subdivisions. . . .”
The city could reasonably find that lot No. 7 was a legally nonconforming lot which did not have to meet the 20,000 square feet requirement. Lot No. 7 was created in 1925 and contained approximately 12,068 square feet. Until 1958, the lot size requirement for similarly created lots was 12,000 square feet. Portions of Lot No. 7 have been owned by different parties including Caltrans and Mr. Anderson’s parents. The city found and there is no real dispute that lot No. 7 exceeds 12,000 square feet. Because lot No. 7 was created before the enactment of the city’s 20,000 square foot requirement, the Andersons were entitled to the issuance of the building and grading permits. (See Lakeview Meadows Ranch v. County of Santa Clara, supra, 27 Cal.App.4th at pp. 599-600; see also § 66499.30, subd. (d) [clause exempting “any parcel or parcels of a subdivision” from any law including local ordinances, “regulating the design and improvement of subdivisions in effect at the time the subdivision was established”].)
IV. DISPOSITION
The order denying the petition for writ of mandate is affirmed. Defendant, the City of Pasadena, and real parties in interest, Paul Anderson, individually and as trustees of the Paul and Elizabeth Anderson Family Trust and Indymac Bank, are awarded their costs on appeal from plaintiffs, Janice Sharp and Dane Hoiberg.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
We concur: ARMSTRONG, J., KRIEGLER, J.