1

Filed 10/ 7/15 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

SAVE MOUNT DIABLO, Petitioner and Respondent,

v. CONTRA COSTA COUNTY et al.
, Defendants; RONALD E. NUNN et al., Real Pa rt ies in Interest and Appellants. A142357
(Contra Costa County Super. Ct. No. CIV

- MSN

- 13

- 0774)

Real p arties in i nterest Ronald and Shirley Nunn bought a large t ract of agricultural property in Contra Costa County

. The tract was recorded as a single parcel,
but it actually consisted of four separated parts of unequal size . These parts were formed

years before the Nunns bought the property when a local agency acquired t hrough
eminent domain two narrow strips of land crossing the p roperty and intersect ing each
other. A road was built on one str ip, and a pipeline was buried under the other

. After the Nunns abandoned an effort to subdivide the property under the parcel

map provisions of the Subdivision Map Act
, 1 they asked the c ount y to issue certificates of compliance to confirm that each of the four parts nonetheless satisfied the requirements of the Act. The c ounty did so, and Save Mount Diablo ( SMD ) petition ed
for a writ of mandate challeng ing th e c ounty’s decision

. The trial c ourt g ranted the petition , and we affirm . We hold that a “division” of property within the meaning of the

1 Government Code section 66410 et seq uitur (the Act). All further statutory references are to the Government Code unless otherwise indicated.2

Act does not occur simply because an eminent domain proceeding results in a physical separation of a property’s non

- condemned portion s

. The owner of such a property is
therefore not entitled to a certificate of compliance for each of the resulting separate parts

. BACKGROUND
In the mid

- 1990s, the Contra Costa Water District (District) oversaw the
construction of a dam in the eastern part of Contra Cos ta C ounty. The project required the District to acquire 20,000 acres of property from about 40 county landowners, and i t included relocating 13 miles of road and installing 20 miles of water pipeline and 12 miles of gas line. One of the properties affect ed by the project was a 586

- acre tract of
land now owned by the Nunns

. R oughly rectangular in outline
, the p roperty is crossed by

two narrow, intersecting strips of land that were acquired by the District through
condemnation proceedings in 1997

. One , ru nning generally north and south , was acquired to relocate Vasco Road

. T he other
, running east and west, intersects Vasco Road at a right angle and was acquired to accommodate an underground pipeline

. 2 The previous owners of the Nunns’ property were ultim ately awarded $964,000 in compensation for the taking. A drawing of the property and strips taken, adapted from an exhibit submitted below, is appended to this decision. The Nunns purchased the property in 2006. The deed describes it as a single parcel, defined by metes and bounds, with District

- owned land exc luded

. 3 As a result of the exclusions, the property consists of four p arts, separated from each other by the

2 The pipeline strip actually consists of two recorded parcels: one running from the property’s eastern boun dary to the point at which it abuts the Vasco Road parcel and a second parcel running from the opposite side of the Vasco Road parcel to the property’s western boundary.

3 In addition to the narrow strips, several other pieces of land apparently lying with in the boundary of the property are also excluded from the parcel, including other parcels of land conveyed for the purpose of road creation. These other exclusions are described only by metes and bounds or other abstract identifiers in the deed, and it i s not clear from the record where within the property they are located. The parties have made no claims relating to these other exclusions.3

narrow strips of District

- owned land. The Nunns nevertheless have ready access between
them. The land above the buried pipeline is covered in gravel and is freely passable, and
V asco Road, which is two lanes wide as it passes through the property, can be crossed on
the surface and by way of underpasses

. Presently, t he property is at least partially planted with wine grapes and is subject to a Williamson Act 4 contract restricting its use to agricultural purposes

. Two years after buying the property, the Nunns applied to the c ounty for a parcel

map subdividing the property u nder the Act into four lots and one remainder parcel

. As
we discuss below in more detail, a l andowner who wants to subdivide property normally is required to obtain local approval of a parcel or final map demonstrating that the division complies with applicable state and local la ws governing land use and development

. SMD, a non profit corporation, raised a number of objections to the Nunns’ application based o n concerns with the environmental impact of potential new development

. B e fore completing the parcel map process , t he Nunns abandoned t heir application

. Instead
, the y asked the c ounty to issue a certificate of compliance for each of the property’s four parts under another provision of the Act, section 66499.35, subdivision (a). Under this provision, a property owner need not file a n approved map if the responsible agency concludes th at “the real property complies with the provisions of [the
Act ] and of local ordinances enacted pursuant to [the Act ].” ( Ibid

. ) The Nunns ar gued that they were entitled to a certificate for each part because t he District’s condemnation had the effect of subdividing the property for purposes of the Act

. County planning staff denied the Nunns’ request for four certificates of compliance, concluding that the property’s separation as a resul t of the condemnation did
not constitute a “ subdivision ” for purposes of the Act

. T he Nunns appeal ed
, and the County P lanning C ommission reversed the staff’s decision

. SMD then appealed to the County B oard of S upervisors , which rejected the appeal and is sued the four certificates.

4 Section 51200 et sequitur.4

S M D filed a petition for writ of mandate against the c ounty and Bo ard of
S upervisors , seeking an order requiring the c ounty to set aside the certificates. The trial court granted the petition. It concluded that no legal autho rity supported the Nunns ’ theory that the condemnation effected a subdivision of the property within the meaning of
the Act

. In granting the petition, the court noted its concern that such an “automatic
subdivision” would set a “wide

- ranging precedent pot entially applicable to many property ow ners in the area” whose properties had been separated in some manner by a public acquisition of property. The Nunns appealed. 5

DISCUSSION
The Nunns first argue, as they argued below, that the c ounty properly issued the four certificates of compliance under section 66499.35, subdivision (a) because the
condemnation effected a sub d ivi sion of the property a s a matter of law . Alternatively, they argue that the c ounty was required to issue four conditional certificates o f compliance under subdivision (b) , even if the condemnation did not e ffect a sub division
under the Act

. A local government’s decision to grant or deny a certificate of compliance is ordinarily reviewed for substantial evidence. But issues of law
, such a s those presented
here
, are reviewed de novo. ( Abernathy Valley, Inc. v. County of Solano (2009)
173 Cal.App.4th 42, 46 (

Abernathy Valley ).)
A. The Subdivision Map Act

. The Act “grants to local governments the power to regulate the manner in which
thei r communities grow. Although the Act itself contains few, if any, substantive growth

5 The Nunns’ notice of appeal was filed two days after the trial court’s ruling, prior to the entry of a judgment. “[A]n order granting or denying a petition for an extraordinary writ constitutes a final judgment for purposes of an appeal, even if the order is not accompanied by a separate formal judgment” when “ ‘ “no issue is left for fu ture consideration except the fact of compliance or noncompliance” ’ ” with the order. ( Public Defenders’ Organization v. County of Riverside (2003) 106 Cal.App.4th 1403, 1409.) We treat the trial court’s order as appealable because it appears to have re solved all issues presented by the petition.5

regulations, it requires every landowner who wishes to divide a single parcel of land into smaller parcels for individual sale

— thereby increasing the density of settlemen t on the
land

— to obtain the approval of the local government before doing so. [Citations.] At the same time, the Act vests ‘[r]egulation and control of the design and improvement of subdivisions’ in city and county governing bodies, requiring them to ado pt ordinances regulating the manner in which growth will occur. [Citation.] By requiring proposed new subdivisions to comply with these regulations as a condition of approval, local governments can ensure that new real estate development conforms with th eir communities’ general and specific plans and other regulations adopted to guide growth. [Citation.] Local governmental control over community growth made possible by the Act ‘encourage[s] and facilitate[s] orderly community development

. . . and assur e[s] proper improvements are made, so that the area does not become an undue burden on the taxpayer.’ ” ( Witt Home Ranch, Inc. v. County of Sonoma (2008) 165 Cal.App.4th 543, 551.) Transferring portions of land without complying with the Act is illegal a nd subject s the transferor to various penalties

. (§§ 66499.30, subd s. (a) & (b), 66499.31 , 66499.34

. )
The Act legitimize s property divisions under processes that are both forward and backward looking. In a process that is forward looking, the Act allows an owner who wants to subdivide property to apply for a final or parcel map effecting the subdivision. Under the Act, “ ‘[s]ubdivision’ means the division, by any subdivider, of any unit or units of improved or unimproved land, or any portion thereof, sh own 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.” 6 (§ 6642 4 .) “Ordinarily, subdivision under the Act may be lawfully accomplished only by obtai ning local approval and recordation of a tentative and final map pursuant to section 66426, when five or more parcels are involved, or a parcel map pursuant to section 66428 when four or fewer

6 Throughout this opinion, we frequently refer to “conveying” a portion of property for the sake of brevity and readability, but in doing so we understand that the statute’s language includes selling, leasing, o r financing property.6

parcels are involved.” ( Gardner v. County of Sonoma (2003) 29 Cal.4th 990, 997 ( Gardner ); §§ 66426, 66428, 66457, 66463

. ) The final or parcel map must be approved by the responsible local agency, which can approve the map if it conforms with

a pplicable state law s and local ordinances governing land use and developme nt. (§§ 66473, 66473.5 ; see generally, Witt Home Ranch, Inc. v. County of Sonoma (2008) 165 Cal.App.4th 543, 551 .) “A local agency will approve a tentative and final map or a parcel map only after extensive review of the proposed subdivision and consider ation of such matters as the property’s suitability for development, the adequacy of roads, sewer, drainage, and other services, the preservation of agricultural lands and sensitive natural resources, and dedication issues.” ( Gardner , at p. 997.) The rec ordation of a final or parcel map “constitute [ s ] ” a certificate of compliance wi th the Act. (§ 66499.35,
subd. (d).)
In a different process , one that is backward looking, the A ct allows an owner to legitimize a division of property that ha s already occur red by obtaining a certificate of compliance with the Act

. Under this process, a n owner or prospective purchaser of property that has already been divided
, but for which no final or parcel map has been
recorded
, may obtain a c ertificate of compliance if “ the division of the real property [ creating the piece of property ] complies with applicable provisions of [the Act] and of local ordinances enacted pursuant to [the Act] .” (§ 66499.35, subd. (a).) Once a certificate of compliance has been issued, t he pro perty “may be sold, leased, or financed without further compliance with the

. . . Act or any local ordinance enacted pursuant thereto.” ( Id. , subd . (f)(1)(E) ; Gardner, supra, 29 Cal.4th at p. 998 .) In other words, the certificate of compliance clarifies the legal status of property that is not reflected on a
recorded final or parcel map , thereby facilitating transactions involving the property

.7

A certificate of compliance is properly issued under section 66499.35, subdivision (a) when a statutory exempti on from the map requirement s applies

. 7 These exemptions
include th ose set forth in the Act’s grandfather clauses. (§§ 66412.6, subd. (a), 66499.30, subd. (d); see generally, Gardner
, supra , 29 Cal.4th at p. 1000.) Permitting certificates of compliance t o be issued under these exemption s constitutes “an obvious effort to provide a fair and equitable scheme to settle the validity of divisions of land occurring in decades past under earlier provisions of law .” ( Stell v. Jay Hales Development Co. (1992)
11 Cal.App.4th 1214, 1227 , disapproved on another ground in Citizens for Covenant Compliance v. Anderson (1995) 12 Cal.4th 345, 359, 366 .) An other exemption, one we discuss i n more detail below , applies to property transferred to or from a government

agency as a result of a condemnation pr oceeding. (§ 66428, subd. (a)(2).)
In yet another process that is backward looking , the Act allows an owner to legitimize a division of property that has already occurred , but for which no map has been
recorded and to whic h no statutory exemption applies, by obtaining a conditional certificate of compliance. “I f a local agency determines that the real property does not comply with [the Act ’s mapping requirements ] or of local ordinances enacted pursuant to this division, it shall issue a conditional certificate of compliance.” ( § 66499.35,
subd. (b)
, i talics in original .) This provision applies, for example, where a part of a larger landholding w as con veyed by deed without complying with the Act’s map requirements,

7 This reading of section 66499.35 is consistent with section 66499.30 , which states that a parcel for which a recorded map is required cannot be sold, leased, or financed in the absence of such a map. The issuance of a certificate o f compliance authorizing the sale, lease, or financing of a parcel for which there is no recorded map would be consistent with the prohibition of section 66499.30 only if such a map were not required for the parcel

— i.e., only if the division creating the p arcel were exempt from the map requirement.8

i.e., w as conveyed illegally

. (§ 66499.30, subd s . (a) & (b).) 8 Although the Act requires
the issuance of a certificate of compliance for such property , it allows the local agency to impose “ any conditions that would have been applicable to the division of the p roperty at the time the applicant acquired his or her interest therein . . . .” (§ 66499.35, subd. (b).) The conditional certificate of compliance therefore serves as notice “that the fulfillment and implementation of these conditions shall be required p rior to subsequent issuance of a permit or other grant of approval for development of the property.” 9 ( Ibid. )
B. The Application of the Act to the Nunns’ Property.
The Nunns purchased the ir property as a single parcel, and it is described as such
in th e deed and in the assessor’s rolls. Since the Nunns abandoned their effort to
subdivide the property into four parts through the map process , the only issue before us is whether they are entitled to a regular or conditional certificate of compliance for e ach of the four parts of their property . We conclude that they are not because there has been no
division of their property within the meaning of the Act

.

1

. The “De Facto Division” of the Nunns ’ Property Was Not a Di vision Under the Act

. T he Nun ns ’ mai n argument is that the District ’s condemnation effected a de facto division of the property into four “ parcels

. ” Although we fully appreciate that the eminent domain proceeding resulted in the physical separation of the four parts of the

8 As we discuss in more detail below, although it is illegal for an owner to convey parts of a landholding in the absence of a recorded map (§ 66499.30, subd s. (a) & (b) ), such a conveyance is nonetheless effecti ve to transfer title to the illegally conveyed portion. The grantee is not subject to criminal penalties and has the right, within one year of discovery, to void such a transfer (§ 66499.32, subd. (a)), but the local agency does not have a similar power. ( Clemons v. City of Los Angeles (1950) 36 Cal.2d 95, 105; Kalway v. City of Berkeley (2007) 151 Cal.App.4th 827, 836.) Accordingly, as both a practical and legal matter, a division of property through an illegal conveyance, if not voided by the transfere e, is effective to subdivide property.

9 These conditions can be significant and could require, for example, construction of infrastructure that would be required for approval of a final or parcel map. (See Curtin et al., California Subdivision Map Act an d Development Process (Cont.Ed.Bar 2d ed. 2001) §§11.20

- 11.21 (rev. 2015).)9

Nunns’ property , we disagree that th is constituted a division within the meaning of the
Act

. There is no question that the Nunns’ property consists of four parts separated from each other by the strips of land owned by the District

. The Nunns cannot pass from one part of their property to another without crossing someone else’s property. And, as the
Nunns correctly point out, the District ’s fee

- simple ownership of its intersecting strips grants the District the ownership of all rights above and below the strips’ surface

. But this practical reality does not mean that the re was a division of the property within the meaning of the Act entitling t he Nunns to a certificate of compliance for each
of its four p arts

. The Nunns argue that the four parts qualify as separate parce ls under the
Act because they are separate d

. But neither the characterization nor the separation of the parts is determinative. C haracterizing the parts of their property as parcels is of no legal consequence because no provision of the Act entitles real property to a certificate of compliance merely because it can be described as such. S ection 66499.35 states that an owner of “real property” may request a determination by the local agency “whether the real property complies with the provisions of [the A ct] and of local ordinances enacted pursuant to [the Act].” ( Id

. , subd. (a). ) If the agency finds that the property complies, it must record a certificate stating “that the division of the real property complies with applicable provisions of [the Act] an d of local ordinances enacted pursuant to [the Act].” ( Ibid
, italics added.) In other words , regardless of whether a piece of property can be characterized as a parcel, it is entitled to a certificate of compliance only if it was the result of a prior di vision recognized by the Act. Further, a division within the meaning of the Act is not established just because parts of a property do not touch

. Section 66424, for example, defines subdivision to mean “the division, by any subdivider, of any unit or uni ts 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

. ” And it goes on to state “[p]roper ty shall be considered as contiguous units, even if it is separated by roads, streets, utility easement, or railroad10

rights

- of

- way.” ( Ibid .) This language was applied by the Attorney General in
61 Op inions Cal ifornia Att orney General 299, in considering the impact of an irrigation canal owned in fee simple by the federal g overnment that divided land under common ownership

. 10 Observing that the term “contiguous” has “two ordinary meanings”

— (a) physically in contact and (b) nearby

— the Attorney General concl uded that the latter
be t ter reflected the purposes of the Act. Accordingly, the opinion concluded that regardless of the federal government’s strip of land, the number of proposed parcels on the land on both sides of the canal had to be counted together t o determine which mapping requirement (a parcel or tentative/final map) applied. Although the map issue considered in the opinion differs from th e issues before us, the opinion is instructive
because it assumed that no subdivision had occurred simply by v irtue of the canal property’s transfer to the federal go vernment, and it found that the physical separation of the property caused b y the canal was not controlling

. A leading commentator has observed that one of the “common mistakes” made under the Act is “[a]ssuming that roads, railroad tracks, and natural boundaries divide parcels.” (Merritt, Jr., Practicing Under the Subdivision Map Act: Eight Common Pitfalls (Cont.Ed.Bar 19 8 8) Real Property L. R p tr

. , 165.)
The Nunns insist that “[i]f the [ four par ts of their property ] are indee d new, separate parcels of land

. . . then they should also be treated as lawfully created parcels of land (i.e., created in compliance with the Subdivision Map Act ) .” (Italics in original

. )
But the argument conflates two sepa rate concepts

. T here is no question that the four parts of the ir property were the lawful result of the eminent domain proceeding

. But just
because the property’s separation occurred lawfully does not mean that the separation
constituted a division withi n the meaning of the Act.
The N unns also argue that it would be unfair to require them to proceed through the parcel map process because they did not separate the property into its four parts

. But

u nder the Act, what matters is not who caused property to be separated but whether a

10 Although not binding on this court, a ttorney g eneral opinions are entitled to

“ ‘considerable weight.’ ” ( Ennabe v. Manosa (2014) 58 Cal.4th 497, 716, fn. 14.)11

division occurred within the meaning of the Act. We note that the Nunns knowingly purchased the property in its present c onfiguration , the $964,000 paid to the former

owner compensated the owner for any loss of value caused by the property’s separation
, and the Nunns presumably paid a reduced price for the property because of the effects of
the condemnation

. (See People v. Thompson (1954) 43 Cal.2d 13, 18 [landowner whose

pro perty is divided by highway e ntitled to receive value of land condemned plus
reduction in value of remainder due to severance of portion condemned].) We find nothing unfair in requiring the Nunns to comply with the same procedures for subdivision
as other landowners.

2. The Condemnation Exemption Is Inapp licable

. T he Nunns alternatively claim that they are entitle d to certificates of compliance
under the Act’s exemption for property conveyed through condemnation proceedings. (§ 66428, subd. (a)(2)

. ) Th is provision exempts from map requirement s “[l]and

c onveyed to or from a governm ental agency [or] public entity

. . . for rights

- of

- way, unless a showing is made in individual cases, upon substantial evidence, that public policy necessitates a parcel map.” The Nunns argue that the four parts of their prope rty fall within this exempt ion b ecause the condemnation proceeding from which they arose
involved the conveyance of land to a governmental agency.
Th is argument is refuted , however, by the plain language of the s tatute

. Subdivision (a)(2) states that “[a ] parce l map shall not be required for [¶]

. . . [¶] [l ]and conveyed to or from a governmental agency [ or ] public entity

. . . for rights

- of

- way.” (Italics added.) T he four parts of the Nunns’ property w ere neither conveyed to nor from a public entity. Rather, they were not conveyed at all and remained in private ownership

. True enough, no parcel map was required for the strips conveyed to the District under this exemption b ecause the y w ere conveyed to a government agency. But the exemption says
nothin g about real estate not transferred to or from the government
, even though its
boundaries may have been affected by the property that was transferred

. Condemnation proceedings frequently reshape the boundaries of the remaining property, but nothing in12

the Act suggests that the Legislature intended to exempt all such property from the map requirement s

. Our conclusion that each of the four parts of the Nunns’ tract is not entitled to a certificate of compliance under the Act’s condemnation exemption is supp orted not only by the Act’s plain language, but also by sound policy. The Act is designed to promote local control over real estate develo pment , and the subdivision of property is a primary
means for such development. There is no reason to believe that p roperty reshaped by condemnation proceedings necessarily satisf ies state and local land

- use law s

. Property is
condemned for all kinds of r easons, m a n y of which are e ntirely unrelated to the interests protected by the Act. The four parts of the Nunns ’ pro perty were shaped by the routes chosen for relocating Vasco Road and for laying the pipeline s

. Although the se routes likely made good sense for purposes of the road and pipeline, that does not mean the resulting four parts of the property automatically sa tisfy the objectives and purposes of
the Act

. The Nunns also argue that the condemnation exemption should apply to property reshaped by a condemnation proceeding because the government’s cost in those proceedings will be higher when those proceedings resu lt in “illegal” parcels. We accept neither the premise nor conclusion of this argument. First, although property reshaped by condemnation proceedings may have a new b oundar y, the reshaped property is not illegal

. Ow ners can sell the ir entire property wi th its new boundaries, or they can convey

a ny part of it so long as they comply with the Act. (§ 66424.) Second, the government’s
condemnation costs are unaffected because the government is already r equired to compensate landowners when it acquires prope rty and leaves a remainder with a diminished value. (See People v. Thompson, supra, 43 Cal.2d at p. 18.) Finally, the Nunns argue that the condemnation exemption should apply to their parcels because a condemnation transfer is recognized as a “sale” of p roperty , and a
subdivision is defined under section 66424 as a division of land for the purposes of sale. (See, e.g., People ex rel. Dept

. Pub

. Wks

. v. County of Santa Clara (1969)
275 Cal.App.2d 372, 376 [recognizing condemnation as sale].) But even if we were to13

assume that a condemnation is a sale resulting in a qualifi ed subdivision under section 66424, the only property entitled to the exemption would be the property “sold
, ” which is the property conveyed to the government agency. S ection 66424 prov ides no basis for expanding the scope of the exemption in subdivision (a)(2)

.

3. There Was No Division by Conveyance of the Four Parts of the Nunns’ Property. The Nunns argue that the four parts of their property should be recognized as having been crea ted by conveyance under the Act. Although we recognize that a division of property within the meaning of the Act can occur by conveyance, we disagree that this principle bear s on the four parts of the Nunns’ property. As we previously mentioned (fn. 8 , a nte ) , while a division of property can occur through a conveyance of a p iece of property for which no map has been recorded and to which no statutory exemption applies, such a conveyance is illegal. (§ 66499.30,
subd s

. (a) & (b)

. ) T he grantee of such a p roperty has the right to void the conveyance within one year of its discovery (§ 66499.32, subd. (a)), but the local agency has no similar power . ( Clemo ns v. City of Los Angeles . supra, 36 Cal.2d at p. 105; Kalway v. City of Berkeley , supra, 151 Cal.App.4 th at p. 836 [“That a transfer is not authorized by the Act, or that it violates the Act, does not in and of itself allow an agency to seek and obtain cancellation of the deed through court action”]; City of Tiburon v. Northwestern
Pac

. R

. R

. Co. (1970) 4 C al.App.3d 160, 180

- 181.) Rather, t he local agency is limited to recording a notice of violation against the illegall y conveyed property (§ 66499.36) and prevent ing further development if i t “finds that development of such real property is contrary to the public health or the public safety.” (§ 66499.34.) E ven though such a

conveyance is illegal, it e ffectively transfers title, and the transfer is binding on the grantee’s successors in interest. (§ 66499.32, subd. (a).) Accordingly, as both a practical and legal matter, a conveyance of a p art of a property in violation of the Act results in a division under the Act if not voided by the transferee

. None of th is helps the Nunns , however, because the four parts of their property were not conveyed illegally . The only parcels conveyed at all as a result of the14

condemnation proceeding were those taken by the District. The remainder of the property was untouched. It stayed under common ownership and was listed in a single
deed before and after the condemnati on proceedings and when it was legally conveyed to
the Nunns. 11

4

. Attorney General Opinions

. The Nunns acknowledge that no California decision has ever held that parts of a property are entitled to certificate s of compliance s imply because the parts res ult ed from
a condemnation proceeding, but t hey argue that opinions issued by attorneys g eneral have recognized the principle

. O ur review of the opinions reveals that none is on point, and those that provide guidance support the conclusion that there has b een no division within the meaning of the Act simply because an eminent domain proceeding has separated parts of the non

- condemned property.
In 5 8 Opinions Cal ifornia Att orney General 593 (1975) , the Attorney General
considered whether contiguous parcels held by the same landowner could be sold individually without recording a new parcel map after a portion of each parcel had been
lost to condemnation. The opinion concluded that they could not. It reasoned that under
section 66499.30
, it is unlawful to s ell any parcel of real property until a parcel or final map has been recorded. According to the opinion, the parcels no longer satisfied section
66499.30 b ecause the remaining parcels w e re no longer the same as those depicted in the map on file. ( 58 Ops. Cal.Atty.Gen.
, supra , at p. 594.) The opinion remarked that a new parcel map was required b ecause “condemnation of a part of a parcel results in a ‘division’ of land

. ” ( Id . at pp. 594

- 595.) But only so much can be read into that comment. First, as we h ave discussed, a
condemnation does result in a division of the part of the property conveyed to the government entity. The Act exempts that division from the map requirement. Second,

11 The Nunns also point out that the Act does not preclude the sale of a portion of a tract of land to satisfy a tax deficiency, resulting in a new parcel. In that e vent , however, a statute, Revenue and Taxation Code section 3691, specifically authorizes such a sale. (See 64 Ops.Cal.Atty.Gen. 814 , 816

- 817 (1981). ) The Nunns have cited no similar statute exempting their property from the Act.15

whether a division within the meaning of the Act occurred with the non

- condemned portions of the property was never an issue because the two parcels affected by the
condemnation were already recorded as separate, contiguous parcels. Presumably, they had already been subdivided in compliance with the Act ’ s map requirements
, a nd the comment was simply a recognition that an updated parcel map was needed because the condemnation changed the property’s boundaries

. This, of course, indicates that the
Nunns likewise need to obtain a parcel map

. In 86 Opinions California Attorney G eneral 70 (2003), the Attorney General considered a large parcel recorded sometime before 1965, when a portion of it was
condemned for the development of a reservoir. The reservoir separated two parts of the property by 700 feet of water with no access ro ad to connect them
, and these parts of the property had been assigned different parcel numbers by t he county assessor. At the time of the condemnation, the c ounty’s ordinances did not regulate divisions of land creating fewer than five parcels. ( Id. at p p. 70

- 71.) The opinion considered whether “the remaining two parcels of land were legally created as separate parcels for purposes of the
Subdivision Map Act

. ” ( Id. at p. 70. ) The opinion found that the governing statute was section 66412.6, subdivision (a) , one of the Act ’s grandfather clause s , which states that “any parcel created prior to March 4, 1972, shall be conclusively presumed to have been lawfully created if the parcel resulted from a division of land in which fewer than five parcels were crea ted and if at the time of the creation of the parcel, there was no local
ordinance in effect which regulated divisions of land creating fewer than five parcels.”
As the statute was subsequently explained in Fishback v. County of Ventura (2005)
133 Cal.App .4th 896, “March 4, 1972, is the effective date of legislation adding the requirement of a parcel map to the [Act] for divisions of land into four or fewer parcels. [Citation s .] S ection 66412.6, subdivision (a) simply clarifies that parcels legally creat ed without a parcel map are legal even after the parcel map requirement was added to the [ A ct]

. ” ( Id. a t p. 904.) The opinion reasoned that the separation effected by the condemnation proceedings was outside the Act’s map requirement because it occurred in 1965, at a time when such a separation was unregulated by the Act or local ordinance

.16

(86 Ops.Cal.Atty. Gen., supra, at pp. 71

- 72 , fn. 3 .) According ly , the opinion reasoned
that the o wner was entitled to a certificate of compliance for each of the two remaining parcels. ( Id. at p. 72, fn. 4.) In reaching its conclusion, the opinion expressly rejected an application of section 66424, which defines subdivision
, because “no ‘subdivision’ is being proposed by the owner. [Citation.] The ‘division’ in que stion took place in 1965 when the owner’s two new parcels of land were physically created by court order and the recording of a deed. ” ( 86 Ops.Cal.Atty.Gen.
, supra , at p. 73.) In a relevant footnote , the opinion observed that, under the exemption of sect ion 66428, subdivision (a)(2), current law does not require a parcel map for the conveyance of land for purposes of a right

- of

- way. ( 86 Ops.Cal.Atty.Gen. at p. 73, fn. 5.) “Of course,” the o pinion stated , “ new parcels that are
created [ by condemnation ] b ut not conveyed to a governmental agency must comply with any applicable requirements of the Act ,” citing the 1975 opinion discussed above. ( I bi d.
, italics a dded]

. )
T he Nunns quote the portion of the opinion declining to apply section 66424 because “no [ new] ‘subdivision’ is being proposed by the owner” ( 86 Ops.Cal.Atty. Gen.,

supra , at p. 73) to argue that certificate s of compliance must be issued if no new subdivision is sought at the time of the request

. But this argument misses the critical timing of when the property was separated. The separation occurred in 1965, before the
enactment of the requirement of a parcel map for a subdivision of fewer than five units. Thus, the opinion has no bearing on the Nunns’ situation because the separation of their property into four parts occurred in 1997, well after the enactment in 1972 of the parcel

map requirement

.17 5

. The Four Parts of the Nunns ’ Property Are Not Entitled to Conditional Certificates of Compliance. Finally, t he Nunns argue that each of the fo ur parts of their property is entitled , at a minimum, to a conditional c ertificate of compliance because section 66499.35, subdivision ( b ) states that the local agency “shall” issue such a certificate whenever a regular certificate of compliance is denied

. In doing so, they misconstrue the applicability of this section. Subdivision (b) of section 66499.35 states that, “[i]f a local agency determines that the real property does not comply with the provisions of this division or of local
ordinances enacted pursuant to this division, it shall issue a conditional certificate of compliance.” (Italics added.) In that event, the local agency “may, as a condition to granting a conditional certificate of compliance, impose any conditions that would have been appl icable to the division of the property at the time the applicant acquired his or her interest therein.” ( Ibid. , italics added. ) The conditional certificate of compliance thereby serves as notice “that the fulfillment and implementation of these condition s shall be required prior to subsequent issuance of a permit or other grant of approval for development of the property.” ( Ibid. )
This subdivision works in tandem with subdivision (a). As we have explained, subdivision (a) allows an owner to obtain a ce rtificate of compliance for a piece of property that has already been divided
, but for which no final or parcel map has been
recorded
, by establishing that the property complies with the Act by , for example, falling within an exemption to the map requireme nt. S ubdivision (b), in turn, allows an owner to obtain a conditional certificate of compliance for a piece of property that has already been divided, but for which no map has been recorded and that does not comply with the Act.
But these sections apply only where there has been a division of the property. A s we have discussed, no such division occurred as a result of the eminent domain proceeding18

affecting the Nunns ’ property , except for the parcels acquired by the District

. Section
66499.35 therefore simply does not apply to the four parts of the Nunns ’ property

. 12 Giving meaning to s ection 66499.35 ’s use of the word division is consistent with the section’s legislative history . The section’s statutory predecessor was enacted in response to Keizer v. Adams (1970) 2 Cal.3d 976, in which the Supreme Court considered the consequences of a conveyance of property in violation of the Act’s map requirement. (See Nis hiyama v. Safeco Title Ins. Co. (1978) 85 Cal.App.Supp.3d 1, 6.) The Keizer

court required th e local agency to consider the plaintiffs’ application for a building permit “ ‘without regard’ to the Subdivision Map Act” b ecause, according to the court, the Act “does not require the innocent purchaser to suffer for a violation by his grantor, of which he has neither knowledge nor means of discovery

. ” The court did, however, permit the
enforcement of other local ordinances, as w ould apply to any lawfully created parcel. ( Keizer, at p p. 980

- 981.) Two years later, the Legislature enacted former Busines s and
Professions Code sections 11 5 3 8 .1, 1153 8 .2, and 1153 8 .3, the statutory predecessors to sections 66499.34, 66499.35, and 66499.36. (1972 Stats, ch. 706, §§ 2

- 4, pp. 1289

- 1290.) Former section 11583.3 allowed an owner of real property to request the issuance of a certificate of compliance certifying that the property complied with the Act. If the local agency concluded that the property did not comply, the agency was permitted to attach conditions to the certificate that would have been applicable at the time the owner acquired the property. (Former Bus. & Prof. Code, §§ 1153 8 .1, 1153 8 .3.) The present statute continues to embody Keizer ’s pragmatic concern about legitimizing parcels
, including those conveyed illegally but held by good

- faith purchaser s. A piece of property created through a means consistent with the Act is issued an ordinary certificate of compliance, while one that was created illegally is issued a conditional certificate. (§ 66499.35, subd. (f)(1)(E).) A purchaser of property subj ect to a conditional certificate of compliance is alerted to any legal constraints on the use of the property.

12 Although section 66499.35 might allow the grant of a single certificate of compliance for the whole of the Nunns’ property if the re were a question whether it was created by a division, the Nunns have sought no such certificate.19

Division Five of this court has already considered and rejected t he argument that a conditional certificate of compliance must be issued for a p iece of property simply
because a regular certificate of compliance was requested and denied . ( Abernathy Valley,

supra , 173 Cal.App.4th 42

. ) In Abernathy Valley
, a local agency denied the plaintiff’s request for a certificate of compliance under a grandf ather clause for a lot shown on a 1909 subdivision map . ( Id. at p p. 45

- 46.) After the court found that the grandfather
clause was inapplicable ( i d. at p. 53) , it considered the plaintiff’s alternative argument that the c ounty was at least required to iss ue a conditional certificate of compliance for
the lot

. The plaintiff argued, a s the Nunns argue here, t hat the county had only two alternatives in responding to a request for a certificate of compliance under section
66499.35: to grant it or to grant a conditional certificate. ( Abernathy Valley, at p. 56.)
The court rejected the argument. It held that the Act does not require an agency to grant either a regular or conditional certificate of compliance when a property owner seeks “a determination of wh ether real property may be subdivided as proposed” but does
not seek “a determination of whether a particular subdivision lot (which the applicant does not propose to subdivide further) complies with the Act

. ” ( Abernathy Valley, supra, 173 Cal.App.4th at p. 57.) We agree. Stated in our parlance, a certificate of compliance

— whether regular or conditional

— is only proper to legitimize a division of property that has already occurred within the meaning of the Act

. 13
The Abernathy Valley court reasoned that if a conditional certificate of com pliance were required whenever property owner s were denied their desire to subdivide property,
the result would be to “effectively permit the subdivision of property without compliance ” with the Act’s map requirements

. ( 173 Cal.App.4th at p. 58; see § 66499.35, subds. (b), (f)(1)(E)

. ) The court accordingly concluded that “ a local agency may deny an application for a certificate of compliance that seeks a determination that a

13 Although the Act expressly authorizes the issuance of a single certificate of compliance for multiple parcels (§ 66499.35, subd. (f)(2)), such as multiple parcels acquired over time and eventually constituting a single landholding, it contains no similar authorization for the issuance of multiple certificates of compliance for a single parcel.20

particular subdivision lot on the applicant’s property complies with the Act , where the effect of issuing a certificate would be to effectively subdivide the property without complying with the Act.” ( Abernathy Valley
, at p. 58.) We agree with Abernathy Valley ’s reasoning and conclusion.
We thus co nclude that regular and conditional certificates of compliance are limited to legitimizing divisions of property that have already occurred, such as divisions covered by the Act’s grandfather clauses or divisions resulting from a property’s illegal

conveya nce

. 14 Because the re was not a division of the four parts of the Nunns’ property within the meaning of the Act, the Nunns are entitled to n either a regular n or conditional certificate of compliance for each of th ose parts.
D ISPOSITION
The trial court ’s or der granting the petition is affirmed. The trial court is directed, on remand, to enter an appropriate judgment, if no such judgment has yet been entered. SMD may recover its costs on appeal. (Cal. Rules of Court, rule 8.278, (a)(1), (2).)

_________________________ Humes, P.J.

We concur:

_________________________ Dondero, J.

_________________________ Banke, J.

14 These examples are not meant to be a definitive list of divisi ons within the meaning of the Act.2122

Trial Court: Contra Costa County Superior C ourt
Trial Judge: Honorable Laurel Brady
Counsel for Appellant and Real Party in Interest Ronald E. Nunn: McKenna Long & Aldridge LLP, Denis F. Shanagher, Andrew S. Azarmi; Allen Matkins Leck Gamble Mallory & Natsis LLP, David Blackwell; Nossaman LLP, Michael Patrick Durkee Counsel for Respondent and Defendant Save Mount Diablo: Shute, Mihaly & Weinberger LLP, Winter King
, Laura D. Beaton

Counsel for Defendant Contra Costa County: Office of Contra Costa County Counsel, Stephen Michael Siptroth