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TO BE PUBLISHED IN THE OFFICIAL REPORTS
 

OFFICE OF THE ATTORNEY GENERAL
 

State of California
 

JOHN K. VAN DE KAMP
 

Attorney General
 

:

 OPINION : No. 88-803 

:

 of : DECEMBER 1, 1988 

: 

JOHN K. VAN DE KAMP :

 Attorney General : 

:

 CLAYTON P. ROCHE :

 Deputy Attorney General :

 : 

THE HONORABLE JIM COSTA, MEMBER OF THE CALIFORNIA ASSEMBLY, 

has requested an opinion on the following question: 

In a chartered or general law city, is the planning director considered an "interested 

person" within the meaning of section 66452.5, subdivision (d) of the Government Code so as to 

authorize the planning director to appeal to the city council from a subdivision map decision made 

by the planning commission, acting as the advisory agency? 

CONCLUSION 

In a chartered or general law city, the planning director is considered an "interested 

person" within the meaning of section 66452.5, subdivision (d) of the Government Code so as to 

authorize the planning director to appeal to the city council from a subdivision map decision made 

by the planning commission, acting as the advisory agency. 

ANALYSIS 

The request for our opinion involves the application of section 66452.5, subdivision 

(d) of the Government Code, a provision of the Subdivision Map Act, to both a chartered city and 

a general law city. 
 

 

 

The Subdivision Map Act is found in section 66410 et seq. of the Government Code.1 

The basic thrust of that act is set forth in section 66411, wherein it states: 

"Regulation and control of the design and improvement of subdivisions are 

vested in the legislative bodies of local agencies [i.e. a city, county or city and 

county]. Each local agency shall by ordinance regulate and control subdivisions for 

which this division requires a tentative and final or parcel map. . . ." 

Additionally, with respect to certain procedural matters, section 66451 provides: 

"The procedures set forth in this chapter shall govern the processing, 

approval, conditional approval or disapproval and filing of tentative, final and parcel 

maps and the modification thereof. Local ordinances may modify such procedures 

to the extent authorized by this chapter." 

Section 66452.5, subdivision (d), the provision at issue herein, is such an authorized 

modification. It presently provides: 

"(d) Where a local ordinance so provides, any interested person adversely 

affected by a decision of the advisory agency or appeal board may file a complaint 

with the governing body concerning any decision of the advisory agency or appeal 

board. The complaint shall be filed with the clerk of the governing body within 10 

days after the action of the advisory agency or appeal board which is the subject of 

the complaint. Upon the filing of the complaint, the governing body may set the 

matter for hearing. The hearing shall be held within 30 days after the filing of the 

complaint. The hearing may be a public hearing for which notice shall be given in 

the time and manner provided."2 

Accordingly, the Subdivision Map Act is initially required to be implemented in cities 

and counties by local ordinance. Additionally, procedural matters concerning the approval, 

disapproval or modification of subdivision maps may, in certain instances, be regulated specifically 

by local ordinance. 

In addition to the Subdivision Map Act, the authority of cities and counties to 

regulate subdivisions is found in their constitutionally granted police powers. (Santa Monica Pines, 

LTD, v. Rent Control Board (1984) 35 Cal.3d 858, 868-869; Griffin Development Co. v. City of 

1

All section references are to the Government Code unless otherwise indicated. 

2

We note that chapter 1408, Statutes of 1988, to be effective January 1, 1989, will delete the 

condition that a local ordinance must provide for the filing of the complaint specified in this 

subdivision. Accordingly, after that date, state law will require local governing bodies to hear 

these complaints. 

2. 88-803
 
Oxnard (1985) 39 Cal.3d 256, 261-262.) As stated in the Griffin case: "Local agencies may [by 

virtue of art. XI, § 7], therefore, adopt regulations involving matters covered by the Map Act, as long 

as they are not inconsistent with it." (Id., at p. 261.). Chartered cities however, have no greater 

powers than do general law cities in enacting ordinances regulating subdivisions. The subdivision 

Map Act preempts local law and is also a matter of statewide concern. As this office explained in 

63 Ops.Cal.Atty.Gen. 64, 65 (1980): 

"The Subdivision Map Act occupies the field as to subdivisions of property 

(Codding Enterprises v. City of Merced (1974) 42 Cal.App.3d 375, 378; Santa Clara 

County Contractors Assn. Etc. v. City of Santa Clara (1965) 232 Cal.App.2d 564, 

578.) Thus, even though the Act requires each city and county to adopt a local 

ordinance to implement the Act within its jurisdiction (§ 66411), and a city or county 

may reject a tentative or final subdivision map which does not comply with that 

ordinance (§ 66473; Metro Realty v. County of El Dorado (1963) 222 Cal.App.2d 

508, 511), the ordinance must be consistent with the Act. (Friends of Lake 

Arrowhead v. Board of Supervisors (1974) 38 Cal.App.3d 497, 505.) An 

implementing ordinance which is inconsistent with the language or intent of the Act 

is invalid. (Santa Clara County Contractors Assn. Etc. v. City of Santa Clara, supra; 

Kelher v. City of Upland (1957) 155 Cal.App.2d 631, 636; 45 Ops.Cal.Atty.Gen. 23, 

24 (1965).) This rule applies to charter cities, even though land use regulation has 

traditionally been considered a municipal affair. (Coddington Enterprises v. City of 

Merced, supra; Newport Bldg. Corp. v. City of Santa Ana (1962) 210 Cal.App.2d 

771, 777; Hirsch v. City of Mountain View (1976) 64 Cal.App.3d 425, 430-431; but 

see Longridge Estates v. City of Los Angeles (1960) 183 Cal.App.2d 533, 539.)" 

Accordingly, this opinion applies to chartered cities as well as to general law cities. 

This request for our opinion is based upon the ordinance of a particular chartered city. 

It is to be recalled that section 66452.5, subdivision (d), presently states that "[w]here a local 

ordinance so provides, any interested person adversely affected by a decision of the advisory agency 

or appeal board may file a complaint with the governing body concerning any decision of the 

advisory agency or appeal board." The subject city has designated its planning commission as the 

"advisory agency" for purposes of the Subdivision Map Act. Section 66415 of that act defines 

"advisory agency" to mean: 

"'Advisory agency' means a designated official or official body charged with 

the duty of making investigations and reports on the design and improvement of 

proposed divisions or real property, the imposing of requirements or conditions 

thereon, or having the authority by local ordinance to approve, conditionally approve 

or disapprove maps." (Emphasis added.) 

The city involved herein has designated its planning director as the city "development 

director." Since the planning commission has been designated the "advisory agency," section 

66452.3 is relevant concerning the planning director/development director. That section provides: 

3. 88-803
 
"Any report or recommendation on a tentative map by the staff of the local 

agency to the advisory agency or legislative body shall be in writing and a copy 

thereof served on the subdivider and on each tenant of the subject property, in the 

case of a proposed conversion of residential real property to a condominium project, 

community apartment project, or stock cooperative project, at least three days prior 

to any hearing or action on such map by such advisory agency or legislative body. 

Pursuant to section 66451.2, fees may be collected from the subdivider for expenses 

incurred under this section." 

The planning director/development director prepares a report to the planning 

commission, the "advisory agency," pursuant to this section. (See city's subdivision ordinance, 

post.) 

With this particular organization established for review of subdivision maps filed 

with the city, the city recently amended its subdivision ordinance to include the planning 

director/development director as an "interested person" who could appeal to the city council from 

a decision of the planning commission regarding a tentative subdivision map. 

The ordinance was amended in part to read: 

"[(f) APPEAL. Any interested person, including the [Development] 

Director, may complain of any decision of the [Planning] Commission, and the 

applicant may appeal from any action of the [Planning] Commission as related to a 

tentative map or vesting tentative map and related UGM [Urban Growth 

Management] Permit application pursuant to the provisions of Section 12-1019. 

When a proper appeal has been filed, a public hearing upon the matter shall be set 

before the Council within thirty days of the receipt of the proper appeal.]" 

Additionally, with respect to the criteria the city council is to follow on such appeals with respect 

to tentative maps, the subdivision ordinance was amended to read: 

"[(g) COUNCIL ACTION ON APPEAL. On appeal, the Council shall 

approve, conditionally approve, or disapprove the tentative map or vesting tentative 

map and related UGM Permit application pursuant to Section 12-1019. The Council 

shall not act on the subject map and UGM Permit application unless it has considered 

the following factors: 

(1) The recommendation of the [Development] Director. 

(2) The Commission's Action and report. 

(3) The contents of the Service Delivery Plan, and 

4. 88-803
 
(4) The results of any required Cost/Revenue Analysis. The action of the 

Council shall be final.]" 

It is in the foregoing context that we have been asked whether the development 

director/planning director is an "interested person adversely affected by a decision" with respect to 

the city planning commission's action on tentative subdivision maps within the meaning of section 

66452.5, subdivision (d), of the Subdivision Map Act? We conclude that in both a chartered city 

or general law city that official is properly considered to be such an "interested person." 

Clearly, under section 66452.3, supra, the development director/planning director has 

a governmental interest in the planning commission's decision by virtue of the staff report which that 

official must file with the planning commission concerning whether to approve or disapprove a 

tentative map. The question remains whether such a governmental interest is sufficient to permit 

that official to be considered an "interested person" within the meaning of section 66452.5, 

subdivision (d). 

It is to be noted that the Subdivision Map Act itself in no way attempts to define who 

is such an "interested person adversely affected." The city, in support of its position that the 

development director/planning director qualifies for such status, urges as follows: 

"The Map Act does not appear to refer to 'party' in some litigation sense. The 

appeal provisions are not found in the Code of Civil Procedure or placed in the 

Government Code dealing with the rights of parties in litigation. These Map Act 

provisions don't purport to define the circumstances under which certain parties have 

a right to maintain or defend actions. Therefore, the word 'person' is not used, as is 

the term 'party,' in a technical sense or as a term of art. 

"The Director is responsible in the first instance for administering the Zoning, 

Planning and Subdivision Laws. Very often his decisions become final, in the 

absence of any appeal or automatic reference to the Commission or Council. By law, 

he is both permitted and authorized to develop the standards for review of 

subdivision maps for compliance with the local Map Ordinance, local development 

standards and with the zoning laws, generally. Most appeals affect important matters 

of planning and zoning policy administered by the Director. It is anomalous to say 

that any citizen could appeal a decision of the Commission but that the Director 

could not. . . . 

"Using the ordinary or common definition of the word 'interested,' the 

Director is clearly such a person. Webster's (unabridged) Third New International 

Dictionary (1976) G & C Merriam Co., Springfield, Mass., 'interested,' p. 1178. The 

Director is responsible for issuing all the entitlements for the City. He does so in his 

official capacity. In a proper case, a suit could properly name the Director as a party 

defendant." 

5. 88-803
 
Several legal arguments, however, have been suggested, in support of a contrary 

view. 

It has first been suggested that since the Subdivision Map Act does not define "any 

interested person" for purposes of section 66452.5, reference should be made to other laws where 

such definitions do exist. Examples cited are the Energy and Conservation Laws and the laws 

governing assessment proceedings. 

A second suggestion is that to permit the development director/planning director the 

right of appeal would in essence give rise to a conflict of duties. This is so, it is urged, because in 

the case of an applicant's appeal the director would function as the representative of the planning 

commission before the city council. However, where the director himself appeals, he would be 

contesting the action of the planning commission, leaving no one from "staff" to represent the 

commission. 

In our opinion, the city's position is correct. We believe that it is extremely 

significant that the term "interested person" has not been defined in the Subdivision Map Act. Land 

use control is peculiarly a local matter, encompassing the interrelationship of numerous matters such 

as the general plan, zoning, environmental matters under CEQA, coastal zone matters in some 

jurisdictions and matters under the Williamson Act in agricultural communities. (See generally 

California Subdivision Map Act Practice, (Cont.Ed.Bar 1987) pp.7-12). As the city noted, the 

development director or a planning director would be at the "point" with respect to these matters.

 Accordingly, as already pointed out herein, that official would clearly have an official interest or 

governmental interest in planning commission decisions on tentative maps which might not be in 

conformity with or in the best interest of local land use planning and control. Accordingly, we 

believe that a city or county is empowered pursuant to present section 66452.5, subdivision (d) to 

define "interested person" to include a development director/planning director. 

Insofar as it has been urged that reference should be made to other laws where 

"interested persons" have been defined to encompass only those with a "real or direct" interest, we 

note that all such definitions we have examined are limited to the particular law for which the 

definition is made, using such terminology as "For the purpose of this article" or "As used in this 

article," (see, e.g. Bond Refunding Law of 1939, § 59380; Hazardous Waste Control Laws, Health 

and Safety Code, § 25199.1; Determination of Domicile By Arbitration, Alternative Method, Rev. 

& Tax. Code, § 14199, subd. (d).) 

Furthermore the specific examples urged do not in our view support such a contention 

since they are in no way analogous. For example, Public Resources Code, section 25114, relating 

to Energy Conservation and Development, defines "interested party," not interested persons. And 

the assessment proceeding laws naturally would consider those with a real and direct interest as 

having the relevant interest, since the assessment will be a charge on the land assessed. 

6. 88-803
 
 

Additionally, we note that broad definitions of the term "interested person" may be 

found. See, e.g., Health and Safety Code, section 25199.1 of the Hazardous Waste Control Laws, 

which provides: 

"(c) 'Interested person' means a person who participated in one or more public 

meetings or hearings held to consider an application for a land use decision for a 

specified hazardous waste facility prospect. . . ." 

Insofar as it has been urged that to permit the development director/planning director 

to appeal will leave the planning commission without representation before the council, we believe 

this is not in reality a legal objection to the ordinance, but at most an administrative matter to be 

solved by the city council. In short, it is a choice the city council made when it enacted its 

ordinances. 

Finally, as noted at the outset (see footnote 2, ante), section 66452, subdivision (d), 

has been amended, effective January 1, 1989, to delete the qualifying introductory language 

"[w]here a local ordinance so provides." Accordingly, after that date, subdivision (d) of section 

66452 will not require passage of a local ordinance, but will apply in all cities and counties by force 

of state law. 

Although the facts presented in this request are based upon a local ordinance which 

specifically designates the planning director to be an "interested person" within the meaning of 

section 66452, subdivision (d) of the Government Code, we believe that what we have said herein 

with respect to a planning director's governmental interest in subdivision map decisions would make 

that official such an "interested person" under the direct wording of the statute, without the benefit 

of such an ordinance. Thus, our conclusion herein would be the same even if we were analyzing the 

question under the law as it will read effective January 1, 1989. 

Accordingly, in summary we conclude that in either a general law city or chartered 

city, the city development director/planning director is an "interested person adversely affected by 

a decision" for purpose of appealing decisions as specified in section 66452.5, subdivision (d).3 

* * * * 

3

We also note that there is no objection to considering the state, its subdivisions, or its officers 

as "persons" where to do so will not infringe upon the sovereignty of the state. (See, e.g., Eden 

Memorial Park Assn. v. Superior Court (1961) 189 Cal.App.2d 421, 424; 70 Ops.Cal.Atty.Gen. 

146, 150, N.8 (1987); 64 Ops.Cal.Atty.Gen. 94, 103 (1981); 41 Ops.Cal.Atty.Gen. 178, 180 

(1963).) 

7. 88-803