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TO BE PUBLISHED IN THE OFFICIAL REPORTS
 

OFFICE OF THE ATTORNEY GENERAL
 

State of California
 

DANIEL E. LUNGREN
 

Attorney General
 

OPINION : 

: No. 94-809 

of : 

: May 18, 1995 

DANIEL E. LUNGREN :
 

Attorney General :
 

:
 

MAXINE P. CUTLER :
 

Deputy Attorney General :
 

:
 

THE HONORABLE SAL CANNELLA, MEMBER OF THE CALIFORNIA STATE 

ASSEMBLY, has requested an opinion of the following questions: 

1. When a local agency requires the filing of a tentative map in addition to a parcel map 

with respect to the subdivision of property, may the agency impose, as a condition of tentative map 

approval, the installation of irrigation facilities prior to approval of the parcel map? 

2. When a local agency requires the filing of a tentative map in addition to a parcel 

map with respect to the subdivision of property, may the agency impose, as a condition of map 

approval, that an agreement be reached between the subdivider and an irrigation district regarding the 

timing of the installation of irrigation facilities? 

CONCLUSIONS 

1. When a local agency requires the filing of a tentative map in addition to a parcel 

map with respect to the subdivision of property, the agency may not impose, as a condition of tentative 

map approval, the installation of irrigation facilities prior to approval of the parcel map. 

2. When a local agency requires the filing of a tentative map in addition to a parcel 

map with respect to the subdivision of property, the agency may not impose, as a condition of tentative 

map approval, that an agreement be reached between the subdivider and an irrigation district regarding 

the timing of the installation of irrigation facilities. 

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ANALYSIS
 

The Subdivision Map Act (Gov. Code, '' 66410-66499.37; "Act") 1 regulates the 

manner in which an owner of a contiguous block of land may subdivide or convey portions of the 

property. (John Taft Corp. v. Advisory Agency (1984) 161 Cal.App.3d 749, 755.) The Act establishes 

general "statewide criteria for land development planning, and delegates authority to cities and counties 

to regulate the details of subdivisions." (Benny v. City of Alameda (1980) 105 Cal.App.3d 1006, 

1010.) Its purposes are to "facilitate orderly community development by regulating and controlling the 

design and improvement of subdivisions and to protect the buying public from exploitation" (South 

Central Coast Regional Com. v. Charles A. Pratt Construction Co. (1982) 128 Cal.App.3d 830, 845), 

as well as to "assure proper improvements are made so the area does not become an undue burden on 

the taxpayer" (Bright v. Board of Supervisors (1977) 66 Cal.App.3d 191, 194). 

Generally a subdivision may be created only by first obtaining local (city or county) 

approval of a "final map" (' 66426 [five or more parcels]) or a "parcel map" (' 66428 [four or fewer 

parcels]) filed with the county recorder ('' 66411.1, 66468). While the filing of a "tentative map" ('

66424.5) is normally only required prior to the filing of a final map ('' 66456-66457), the local agency 

has the discretion to require preparation of a tentative map prior to the recordation of a parcel map for 

divisions of four or fewer parcels. "Local ordinances may require a tentative map where a parcel map 

is required by this chapter." (' 66428.) To obtain approval of the requisite map, the subdivider may 

be required to fulfill certain conditions imposed by the local agency. 

The two questions presented for resolution concern the provisions of section 66411.1, 

which states: 

"(a) Notwithstanding Section 66428, whenever a local ordinance requires 

improvements for a division of land which is not a subdivision of five or more lots, the 

regulations shall be limited to the dedication of rights-of-way, easements, and the 

construction of reasonable offsite and onsite improvements for the parcels being 

created. Requirements for the construction of offsite and onsite improvements shall be 

noticed by a statement on the parcel map, on the instrument evidencing the waiver of 

the parcel map, or by a separate instrument and shall be recorded on, concurrently with, 

or prior to the parcel map or instrument of waiver of a parcel map being filed for 

record. 

"(b) Notwithstanding Section 66428, fulfillment of the construction 

requirements shall not be required until the time a permit or other grant of approval for 

development of the parcel is issued by the local agency or, where provided by local 

ordinances, until the time the construction of the improvements is required pursuant to 

an agreement between the subdivider and the local agency, except that in the absence of 

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

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an agreement, a local agency may require fulfillment of the construction requirements 

within a reasonable time following approval of the parcel map and prior to the issuance 

of a permit or other grant of approval for the development of a parcel upon a finding by 

the local agency that fulfillment of the construction requirement is necessary for either 

of the following reasons: 

"(1) The public health and safety. 

"(2) The required construction is a necessary prerequisite to the orderly 

development of the surrounding area." 

We are informed that a property owner intends to subdivide 80 acres of rural land into four equal 

parcels. The county requires a tentative map for such a subdivision. The 80 acres is served by an 

irrigation canal on one side. If the new parcels are configured parallel to the canal, another canal 

running perpendicular to the first will be necessary to reach the other three new parcels. Under the 

terms of section 66411.1, when may the county require the construction of the perpendicular canal? 

1. Requiring Installation of Improvements Prior to Parcel Map Approval 

In 62 Ops.Cal.Atty.Gen. 175 (1979), we concluded that a local agency could not 

require construction of offsite or onsite improvements to be completed prior to approval of a parcel 

map. We stated: 

"The first question concerns whether a local agency can require that 

improvements in . . . smaller subdivisions [of four or fewer parcels] be completed prior 

to the recordation of the appropriate map. Since sale of the parcels is generally 

dependent upon recordation of the map (' 66499.30, subd. (b)), such a requirement 

would insure that the improvements were made before sale. On the other hand, it may 

be argued that the landowner should not be required to make the necessary 

improvements until he is ready to develop the property. Based upon an examination of 

the controlling statute, section 66411.1, we conclude that completion of the 

improvements may not be required prior to the recordation of the parcel map. 

"Section 66411.1 provides that in divisions of land into four or less parcels, the 

improvements required by local ordinance must be limited to `the dedication of 

rights-of-way, easements, and the construction of reasonable offsite and onsite 

improvements for the parcels being created.' Under the statute, notification of the 

construction requirements must be `by certificate on the parcel map, on the instrument 

evidencing the waiver of such parcel map, or by separate instrument and shall be 

recorded on, concurrently with, or prior to the parcel map or instrument of waiver of a 

parcel map being filed for record.' 

"Although the improvements can be specified and their description recorded 

prior to the recordation of the appropriate parcel map, the Legislature has further 

provided in the statute that: 

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"`Fulfillment of such construction requirements shall not be required until such 

time as a permit or other grant of approval for development of the parcel is issued by 

the local agency or, where provided by local ordinances, until such time as the 

construction of such improvements is required pursuant to an agreement between the 

subdivider and the local agency, except . . . that in the absence of such an agreement, a 

local agency may require fulfillment of such construction requirements within a 

reasonable time following approval of the parcel map and prior to the issuance of a 

permit or other grant of approval for the development of a parcel upon a finding by the 

local agency that fulfillment of the construction requirements is necessary for reasons 

of . . . public health and safety; or . . . orderly development of the surrounding area.' 

(Emphasis added.) 

". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

". . . [W]e construe section 66411.1 as allowing a local agency to require the 

completion of the necessary improvements within a reasonable time after the parcel 

map has been approved if no agreement has been reached setting an earlier date of 

completion pursuant to a duly adopted ordinance authorizing such agreements." (Id., 

at pp. 177-178; fn. omitted.) 

The only significant difference between the present inquiry and our 1979 opinion is that here the local 

agency has required the filing of a tentative map in addition to the filing of a parcel map. How does 

this fact affect our prior conclusion? 

We believe that whatever argument could once have been made regarding the authority 

of a local agency to approve a tentative map, the recent amendment of section 66411.1 disposes of such 

argument when dealing with subdivisions of four or fewer parcels. In 1994, section 66411.1 was 

amended (Stats. 1994, ch. 655, ' 1) to add the phrase "Notwithstanding Section 66428" in both 

subdivisions (a) and (b). Such language makes the limitation provisions of section 66411.1 controlling 

over the terms of section 66428. (See People v. Superior Court (Hubbard) (1991) 230 Cal.App.3d 

287, 296; In re Marriage of Dover (1971) 15 Cal.App.3d 675, 678, fn. 3; State of California v. Superior 

Court (1965) 238 Cal.App.2d 691, 695; 76 Ops.Cal.Atty.Gen. 4, 7 (1993).) 

Consistent with this interpretation is the legislative history of the 1994 amendment of 

section 66411.1. In the report on the Assembly Committee on Local Government dated April 20, 

1994, the proposed legislation is described in part as: "Provides that the restriction of parcel map 

improvements . . . apply notwithstanding the authority for local governments to require a tentative map 

when a parcel map is required . . . ." Similarly in the report of the Assembly Committee on Ways and 

Means dated May 18, 1994, it is stated that the statutory amendment is to provide "that the restriction 

on improvements shall apply notwithstanding the authority for local governments to require a tentative 

map . . . ."2 

2 "Statements in legislative committee reports concerning the statutory purposes which are in accordance with a 

reasonable interpretation of the statute will be followed by the courts. It will be presumed that the Legislature adopted the 

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Accordingly, even though a local agency may require the filing of a tentative map under 

the terms of section 66428, the agency may not circumvent the limitations contained in section 66411.1 

governing "a division of land which is not a subdivision of five or more lots." One such statutory 

limitation3 is: "fulfillment of the construction requirements shall not be required until the time a 

permit or other grant of approval for the development of the parcel is issued by the local agency" unless 

there is an agreement with the subdivider; a finding of necessity due to public health and safety or 

orderly development of the surrounding area allows the local agency to require construction only 

"within a reasonable time following approval of the parcel map." 

We conclude in answer to the first question that when a local agency requires the filing 

of a tentative map in addition to a parcel map with respect to the subdivision of property, the agency 

may not impose, as a condition of tentative map approval, the installation of irrigation facilities prior to 

approval of the parcel map. 

2. Requiring Installation of Improvements By Agreement 

As indicated in response to the first question, a subdivider may agree to construct onsite 

and offsite improvements under the terms of section 66411.1. Such an agreement might specify that 

the improvements are to be constructed at a particular time, including prior to the approval of the parcel 

map. Does section 66411.1 allow the local agency to require such an agreement between the 

subdivider and a water district for the construction of irrigation facilities? We conclude that it does 

not. 

We are to interpret statutes so as to "effectuate legislative intent." (Burden v. Snowden 

(1992) 2 Cal.4th 556, 562.) "In determining intent, we look first to the language of the statute, giving 

effect to its `plain meaning.'" (Kimmel v. Goland (1990) 51 Cal.3d 202, 208.) "If a statute's language 

is clear, then the Legislature is presumed to have meant what it said, and the plain meaning of the 

language governs." (Kizer v. Hanna (1989) 48 Cal.3d 1, 8.) 

An "agreement" is commonly defined as "the act of agreeing or coming to a mutual 

arrangement . . . harmonious understanding . . . ." (Webster's Third New Internat. Dict. (1971) p. 43.) 

The term is not ordinarily understood to involve involuntary or forced consent. 

We find nothing in the statute suggesting that a local agency may impose an agreement 

upon a subdivider. Indeed, the language supports the contrary conclusion by indicating the course of 

action a local agency may take if an agreement cannot be reached with the subdivider ("in the absence 

of an agreement, a local agency may . . . ."). 

proposed legislation with the intent and meaning expressed in committee reports." (In re Marriage of Paddock (1971) 18 

Cal.App.3d 355, 359; accord, O'Brien v. Dudenhoeffer (1993) 16 Cal.App.4th 327, 334.) 

3

Other limitations contained in section 66411.1 are not within the scope of this opinion, such as the requirement that the 

offsite and onsite improvements be "reasonable." 

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The legislative history of section 66411.1's most recent amendment in 1994 supports 

the determination that an agreement may not be forced upon the subdivider. The report of the Senate 

Committee of Local Government dated July 6, 1994, indicates that "[c]onstruction of improvements are 

not required until development of the property, unless the city or county determines they are necessary 

because of health and safety reasons." No suggestion is contained in the committee reports that a local 

agency may require construction of improvements by imposing an agreement upon the subdivider. 

In 71 Ops.Cal.Atty.Gen. 344, 346-349 (1988), we concluded that a city and a county 

were not required to reach an agreement regarding the transfer of property tax revenues in a city 

annexation proceeding, since the statute in question only required them to "commence negotiations." 

Here, under the terms of section 66411.1, the Legislature has not even required negotiations. 

In answer to the second question, therefore, we conclude that when a local agency 

requires the filing of a tentative map in addition to a parcel map with respect to the subdivision of 

property, the agency may not impose, as a condition of tentative map approval, that an agreement be 

reached between the subdivider and an irrigation district regarding the timing of the installation of 

irrigation facilities. 

* * * * * 

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