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OFFICE OF THE ATTORNEY GENERAL
 State of California
 

JOHN K. VAN DE KAMP
 Attorney General
 

OPINION : 

: No. 90-602 

of : 

: OCTOBER 30, 1990 

JOHN K. VAN DE KAMP :
 Attorney General :
 

:
 RODNEY O. LILYQUIST :
 Deputy Attorney General :
 

:
 

THE HONORABLE PHILLIP ISENBERG, MEMBER OF THE CALIFORNIA 

ASSEMBLY, has requested an opinion on the following questions: 

1. Under what circumstances must persons be allowed to appeal to the

governing body of a city an adverse determination made by a city advisory agency or appeal

board to approve, conditionally approve, or disapprove a parcel or tentative map of a proposed

subdivision? 

2. May the Legislature enact a statute that does not allow persons affected

by a parcel or tentative map determination made by a city advisory agency or appeal board to

appeal the decision to the governing body of the city? 

3. May a charter provision of a charter city disallow persons affected by a

parcel or tentative map determination made by a city advisory agency or appeal board to appeal

the decision to the governing body of the city? 

CONCLUSIONS 

1. Persons must be allowed to appeal to the governing body of a city the

determination made by a city advisory agency or appeal board to approve, conditionally approve,

or disapprove a parcel or tentative map of a proposed subdivision with respect to required

findings concerning (1) general and specific plan consistency, (2) suitable site, (3) environmental,

(4) public health, (5) public easements, (6) substantial compliance, and (7) regional water quality

control violations that are assigned to the advisory agency or appeal board. In addition, with 

respect to a tentative map determination made by a city advisory agency or appeal board, (1) the

subdivider, (2) any tenant of the subject property in the case of a residential conversion project,

and (3) the advisory agency must be allowed to appeal the determination to the governing body

of the city, and (4) any interested person adversely affected by the determination must be allowed

to obtain review by the filing of a complaint with the governing body of the city. 

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2. The Legislature may enact a statute that does not allow persons affected

by a parcel or tentative map determination made by a city advisory agency or appeal board to

appeal the decision to the governing body of the city. 

3. A charter provision of a charter city may not disallow the statutory right

of persons affected by a parcel or tentative map determination made by a city advisory agency

or appeal board to appeal the decision to the governing body of the city. 

ANALYSIS 

The Subdivision Map Act (Gov. Code, §§ 66410-66499.37; "Act")1 establishes 

general criteria for land development planning in the creation of subdivisions throughout the 

state. Cities and counties are given authority under the legislation to regulate the design and

improvement of divisions of land in their areas through a process of approving subdivision maps

required to be filed by each subdivider. (§ 66411; Santa Monica Pines, Ltd. v. Rent Control 

Board (1984) 35 Cal.3d 858, 869; South Central Coast Regional Com. v. Charles A. Pratt 

Construction Co. (1982) 128 Cal.App.3d 830, 844-845.) 

Ordinarily a "parcel map" is required for subdivisions creating four or fewer

parcels, while a "tentative map" and a "final map" are required for the creation of five or more

parcels. (§§ 66426, 66428.) A subdivider must obtain approval of the appropriate map before

the subdivided parcels are offered for sale, lease, or are financed. (§§ 66499.30, 66499.31; Bright 

v. Board of Supervisors (1977) 66 Cal.App.3d 191, 193-194.) 

The three questions presented for resolution concern the formal administrative

procedures for approving, conditionally approving, or disapproving parcel and tentative maps.2 

If these decisions are made by an "advisory agency"3 or "appeal board"4 of a city, under what

circumstances must persons be given the right to appeal adverse decisions to the city council? 

1

All references hereafter to the Government Code are by section number only. 

2

The approval of a final map is a ministerial function once the tentative map has been approved

or the conditions fulfilled with respect to a conditionally approved tentative map. (§§ 66473,

66474.1; Youngblood v. Board of Supervisors (1978) 22 Cal.3d 644, 653; Great Western Sav. & 

Loan Assn. v. City of Los Angeles (1973) 31 Cal.App.3d 403, 411.) 

3

Section 66415 provides: 

"`Advisory agency' means a designated official or an official body charged

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

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

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

or disapprove maps." 

4

Section 66416 states: 

"'Appeal board' means a designated board or other official body charged with

the duty of hearing and making determinations upon appeals with respect to divisions

of real property, the imposition of requirements or conditions thereon, or the kinds,

nature and extent of the design or improvements, or both, recommended or decided

by the advisory agency to be required." 

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May the Legislature withhold the right to appeal these decisions to the city council? May a

charter provision of a charter city provide that such decisions of the advisory agency or appeal

board are administratively final?5 

1. Statutory Rights to an Administrative Review 

The first question to be resolved concerns the current provisions of the Act

regarding a person's right to appeal administratively a parcel or tentative map determination made

by a city advisory agency or appeal board. We conclude that the Act authorizes an appeal with 

respect to a variety of matters. 

Regarding parcel map determinations, section 66463 provides in part: 

"(a) Except as otherwise provided for in this code, the procedure for

processing, approval, conditional approval, or disapproval and filing of parcel

maps and modifications thereof shall be as provided by local ordinance. . . . 

"(b) Whenever a local agency provides, by ordinance, for the approval,

conditional approval, or disapproval of parcel maps by the county engineer,

surveyor, or other designated official, the local agency may also, by ordinance,

provide that the officer may accept or reject dedications and offers of dedication

that are made by a statement on the map." 

While section 66463 does not itself grant persons a right of administrative appeal, it indicates that

other statutory provisions may do so. We will examine such possibilities later in the context of

certain findings required to be made at the time of approving, conditionally approving, or

disapproving a parcel map. 

With respect to tentative map determinations, "[a] tentative map shall be filed with

the clerk of the advisory agency . . ." (§ 66452, subd. (a)), and "[i]f the advisory agency is

authorized by local ordinance to approve, conditionally approve, or disapprove the tentative map,

it shall take that action within 50 days after the filing thereof with its clerk and report its action

to the subdivider" (§ 66452.1, subd. (b); see Griffis v. County of Mono (1985) 163 Cal.App.3d

414, 424). Section 66452.5 states in part: 

"(a) The subdivider . . . may appeal from any action of the advisory

agency with respect to a tentative map to the appeal board established by local

ordinance or, if none, to the legislative body. 

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

"(b) The subdivider . . . or the advisory agency . . . may appeal from the

action of the appeal board to the legislative body. . . . 

"After the filing of an appeal, the legislative body shall set the matter for

hearing. The hearing shall be held within 30 days after the date of a request

therefor filed by the subdivider or the appellant. Within 10 days following the 

5

A persons's right to a judicial review of the city's final administrative decision is governed by

section 66499.37 and is not in question. 

3. 90-602 
 

 

conclusion of the hearing, the legislative body shall render its decision on the

appeal. . . . 

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

"(d) 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. . . . Upon the filing of the

complaint, the governing body shall 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. 

"Upon conclusion of the hearing, the governing body shall, within seven

days, declare its findings based upon the testimony and documents produced

before it or before the advisory board or the appeal board. It may sustain, modify,

reject, or overrule any recommendations or rulings of the advisory board or the

appeal board and may make any findings which are not inconsistent with the

provisions of this chapter or local ordinance adopted pursuant to this chapter."6 

Under section 66452.5, then, the Legislature has authorized (1) the subdivider, (2)

tenants in the case of residential conversion projects, and (3) the advisory agency with respect

to appeal board decisions to obtain administrative review of tentative map determinations. We 

also consider the "complaint" procedure for "[a]ny interested person adversely affected by a

decision of the advisory agency or appeal board" to be the functional equivalent of a right of

"appeal." (See Subdivision Map Act Practice (Cont.Ed.Bar 1990 Supp.) § 6.20, pp. 44-45.)7 This 

procedure gives the person the right to have the city council review and "sustain, modify, reject,

or overrule" the decision of the advisory agency or appeal board. 

Besides these express appeal rights specified in section 66452.5, the Legislature

has mandated that certain findings be made by a city council with respect to parcel and tentative

map determinations. These findings may instead be made by an advisory agency or appeal board

if an appeal to the city council is authorized by local ordinance for any interested persons.

Section 66474.7 states: 

"The responsibilities of the governing body under the provisions of

Sections 66473.5, 66474, 66474.1, and 66474.6 may be assigned to an advisory 

6

For most cities, the "legislative body" or "governing body" designated in various provisions of

the Act would be the "city council," and for counties, these terms of the Act would normally refer

to the "board of supervisors." Since the questions refer to a city, we will use the usual term "city 

council."

 Section 66452.5 also expressly authorizes "any tenant of the subject property" to appeal to a city

council a tentative map decision made by a city advisory agency or appeal board "in the case of a

proposed conversion of residential real property to a condominium project, community apartment

project, or stock cooperative." 

7

One difference between the two is that "[i]f the legislative body fails to act upon an appeal . .

. , the tentative map, insofar as it complies with applicable requirements of this division and local

ordinance, shall be deemed approved or conditionally approved as last approved or conditionally

approved." (§ 66452.5, subd. (c).) 

4. 90-602
 
 

 

agency or appeal board provided the governing body adopts an ordinance which

allows any interested person to appeal any decision of the advisory agency or the

appeal board relative to such matters to the governing body. Such appellant shall

be entitled to the same notice and rights regarding testimony as are accorded a

subdivider under Section 66452.5."8 

Section 66473.5 provides: 

"No local agency shall approve a tentative map, or a parcel map for which

a tentative map was not required, unless the legislative body finds that the

proposed subdivision, together with the provisions for its design and

improvement, is consistent with the general plan . . . ." 

Section 66474 states: 

"A legislative body of a city or county shall deny approval of a tentative

map, or a parcel map for which a tentative map was not required, if it makes any

of the following findings: 

"(a) That the proposed map is not consistent with applicable general and

specific plans as specified in Section 65451. 

"(b) That the design or improvement of the proposed subdivision is not

consistent with applicable general and specific plans. 

"(c) That the site is not physically suitable for the type of development. 

"(d) That the site is not physically suitable for the proposed density of

development. 

"(e) That the design of the subdivision or the proposed improvements are

likely to cause substantial environmental damage or substantially and avoidably

injure fish or wildlife or their habitat. 

"(f) That the design of the subdivision or type of improvements is likely

to cause serious public health problems. 

"(g) That the design of the subdivision or the type of improvements will

conflict with easements, acquired by the public at large, for access through or use

of, property within the proposed subdivision . . . ." 

Hence, for both parcel and tentative map determinations in which the statutorily required findings

are made by an advisory agency or an appeal board, a city council9 must provide interested

persons with a right to appeal to the city council. 

8

Section 66474.1, as previously noted, deals with the approval of a final map or parcel map found

to be in substantial compliance with a tentative map that has been approved for the proposed

subdivision, and section 66474.6 concerns violations of regional water quality control requirements. 

9

Special rules apply for the City of Los Angeles. (§§ 66474.60-66474.64.) 

5. 90-602
 
In answer to the first question, therefore, we conclude that persons must be

allowed to appeal to the governing body of a city an adverse determination made by a city

advisory agency or appeal board to approve, conditionally approve, or disapprove a parcel or

tentative map of a proposed subdivision with respect to required findings concerning (1) general

and specific plan consistency, (2) suitable site, (3) environmental, (4) public health, (5) public

easements, (6) substantial compliance, and (7) regional water quality control violations that are

assigned to the advisory agency or appeal board. In addition, with respect to a tentative map

determination made by a city advisory agency or appeal board, (1) the subdivider, (2) any tenant

of the subject property in the case of a residential conversion project, and (3) the advisory agency

must be allowed to appeal the determination to the governing body of the city, and (4) any

interested person adversely affected by the determination must be allowed to obtain review by

the filing of a complaint with the governing body of the city. 

2. The Legislature's Powers 

The second question presented is whether the Legislature may enact a statute that

does not allow persons affected by a parcel or tentative map determination made by a city

advisory agency or appeal board to appeal the decision to the governing body of the city. We 

conclude that it has the constitutional authority to withhold a person's right of administrative

appeal. 

In City and County of San Francisco v. Workers' Comp. Appeals Bd. (1978) 22

Cal.3d 103, 113, the Supreme Court summarized the law making authority of the Legislature in

the following terms: 

". . . `[t]he Constitution of this State is not to be considered as a grant of

power, but rather as a restriction upon the powers of the Legislature; and that it

is competent for the Legislature to exercise all powers not forbidden by the

Constitution of the State, or delegated to the [federal] government, or prohibited

by the Constitution of the United States.' [Citations.] 

"As our court explained nearly a half century ago, `[W]e do not look to the

Constitution to determine whether the legislature is authorized to do an act, but

only to see if it is prohibited. In other words, unless restrained by constitutional

provision, the legislature is vested with the whole of the legislative power of the

state.' [Citation.] Moreover, the governing authorities' additionally establish that

`[i]f there is any doubt as to the Legislature's power to act in any given case, the

doubt should be resolved in favor of the Legislature's action. Such restrictions 

and limitations are to be construed strictly, and are not to be extended to include

matters not covered by the language used.' [Citation.]" 

The Legislature's regulation and control of divisions of real property is the

exercise of what is termed the "police power." (See Griffin Development Co. v. City of Oxnard

(1985) 39 Cal.3d 256, 263-266; Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899, 

906; Birkenfeld v. City of Berkeley (1976) 17 Cal.3d 129, 155-160.) As explained by the Court

of Appeal in Trent Meredith, Inc. v. City of Oxnard (1981) 114 Cal.App.3d 317, 325: 

"The police power is the inherent reserved power of the state to subject

individual rights to reasonable regulations for the general welfare. [Citation.]

One of the most common subjects of . . . police power regulations . . . is the area

of land use and development." 

6. 90-602
 
"The legislature is possessed of the entire police power of the state, except as its

power is limited by the provisions of the constitution." (Frost v. City of Los Angeles (1919) 181

Cal. 22, 28.) "The determination as to what portion, if any, of a state's police power shall be

delegated to its lesser political entities is left to its people through constitutional processes or

through their legislatures. [Citations.]" (City of Lafayette v. County of Contra Costa (1979) 91

Cal.App.3d 749, 754.) 

Nothing in the Constitution precludes the Legislature from requiring the parcel

and tentative map determinations made by a city advisory agency or appeal board to be the

"final" administrative action taken on behalf of the city. The Legislature may withhold a right

of administrative appeal without violating any provision of the Constitution. 

Of course, the Constitution does impose certain "procedural due process"

restrictions upon enactments of the Legislature when it exercises its police power authority. The 

approval, conditional approval, or disapproval of a parcel or tentative map constitutes a "quasi- judicial act" (also termed an "adjudicatory decision") for which the Constitution requires (1)

notice to affected parties, (2) an opportunity to be heard at an administrative hearing, (3)

appropriate findings made by the administrative body, and (4) judicial review of the 

administrative decision. (See Horn v. County of Ventura (1979) 24 Cal.3d 605, 612-616; 

Youngblood v. Board of Supervisors, supra, 22 Cal.3d 644, 651, fn. 2; Hayssen v. Board of 

Zoning Adjustments (1985) 171 Cal.App.3d 414, 426-427; see also Topanga Assn. for a Scenic

Community v. County of Los Angeles (1974) 11 Cal.3d 506, 514-517.) For purposes of these

constitutional guarantees, however, the Legislature may designate a city advisory agency or

appeal board as the "final" administrative body. 

In answer to the second question, therefore, we conclude that the Legislature may

enact a statute that does not allow persons affected by a parcel or tentative map determination

made by a city advisory agency or appeal board to appeal the decision to the governing body of

the city. 

3. Charter Provisions of a Charter City 

The third question presented is whether a charter provision of a charter city may

abrogate a person's statutory right to an administrative appeal of a parcel or tentative map

determination made by a city advisory agency or appeal board. We conclude that charter 

provisions may not disallow the right of administrative appeal granted by the Legislature. 

Each city and county is given power under the Constitution to "make and enforce

within its limits all local, police, sanitary and other ordinances and regulations" as long as they

are "not in conflict with general laws." (Cal. Const., art. XI, § 7.) As explained by the Supreme 

Court in Birkenfeld v. City of Berkeley, supra, 17 Cal.3d at 140: "A city's police power under this

provision can be applied only within its own territory and is subject to displacement by general

state law but otherwise is as broad as the police power exercisable by the Legislature itself." (See

Griffin Development Co. v. City of Oxnard, supra, 39 Cal.3d at 261.) 

We have concluded here that the Legislature has provided by "general law" for

a person's right to appeal to the city council the parcel and tentative map determinations made

by a city advisory agency or appeal board. (§§ 66452.5, 66474.7.) Any local ordinance denying

such right of appeal would be "in conflict with general laws" and thus void. (See §§ 66421,

66451; Griffis v. County of Mono, supra, 163 Cal.App.3d 414, 425-426; Friends of Lake 

Arrowhead (1974) 38 Cal.App.3d 497, 505.) 

7. 90-602
 
 

A charter city, however, has constitutional power over "municipal affairs" in

addition to its general police power authority, and this additional power is not restricted by

statutes enacted by the Legislature. "City charters adopted pursuant to this Constitution shall

supersede any existing charter, and with respect to municipal affairs shall supersede all laws

inconsistent therewith." (Cal. Const., art. XI, § 5, subd. (a).) Explaining this constitutional 

language in Committee of Seven Thousand v. Superior Court (1988) 45 Cal.3d 491, 505, the

Supreme Court said: "Under this provision, ordinances enacted in a charter city relating to

matters which are purely municipal affairs prevail over state laws covering the same subject."

(See Baggett v. Gates (1982) 32 Cal.3d 128, 136.) 

On the other hand, "[a]s to matters which are of statewide concern, . . . home rule

charter cities remain subject to and controlled by applicable general state laws regardless of the

provisions of their charters. . . ." (Bishop v. City of San Jose (1969) 1 Cal.3d 56, 61.) The 

distinction that must be drawn, then, is between a "purely" municipal affair and one that has

statewide interest. 

"The applicability of a state statute turns on whether it addresses matters of

statewide or strictly local concern," and "courts decide this issue under the facts of each case."

(Los Angeles County Safety Police Assn. v. County of Los Angeles (1987) 192 Cal.App.3d 1378,

1385.) "[N]o exact definition of the term `municipal affairs' can be formulated, and . . . what

constitutes a municipal affair or matter of statewide concern may change over time in response

to changing conditions in society. (Committee of Seven Thousand v. Superior Court, supra, 45 

Cal.3d 491, 505.) Those "factors which influenced the Legislature to adopt the general laws may

likewise lead the courts to the conclusion that the matter is of statewide rather than merely local

concern." (Bishop v. City of San Jose, supra, 1 Cal.3d 56, 63.) If any doubt exists as to whether

a matter is of statewide concern or is strictly a municipal affair, such doubt "`must be resolved

in favor of the legislative authority of the state.'" (Baggett v. Gates, supra, 32 Cal.3d 128, 140; 

City of Los Angeles v. State of California (1982) 138 Cal.App.3d 526, 533.) 

The regulation of divisions of real property and the procedures under which

subdivisions are created in California are of statewide concern and not purely a municipal affair.

(See Hirsch v. City of Mountain View (1976) 64 Cal.App.3d 425, 429-431; Santa Clara County

Contractors etc. Assn. v. City of Santa Clara (1965) 232 Cal.App.2d 564, 575-578; Newport

Bldg. Corp. v. City of Santa Ana (1962) 210 Cal.App.2d 771, 776-777; 73 Ops.Cal.Atty.Gen.

152, 156, fn. 4 (1990); 71 Ops.Cal.Atty.Gen. 326, 327-328 (1988); 64 Ops.Cal.Atty.Gen. 549,

550, fn. 2. (1981.))10 Accordingly a charter city has no power under its "municipal affairs"

constitutional authority to abrogate a legislatively granted statutory right to an administrative

appeal of a parcel or tentative map approval, conditional approval, or disapproval. 

In answer to the third question, therefore, we conclude that a charter provision of

a charter city may not disallow the statutory right of persons affected by a parcel or tentative map

determination made by a city advisory agency or appeal board to appeal the decision to the

governing body of the city. 

* * * * * 

10The Santa Clara and Newport cases were disapproved on another point in The Pines v. City

of Santa Monica (1981) 29 Cal.3d 656, 664 [ordinances enacted under a charter city's taxation power

are not in conflict with the Act's provisions regulating subdivisions]. 

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