Can a California developer get around the tentative-map requirement by quartering one parcel into four lots, selling them, then buying a contiguous parcel and quartering that one too?

Plain-English summary

The Subdivision Map Act treats subdivisions of five or more parcels very differently from subdivisions of four or fewer. Five-plus subdivisions go through the full tentative-map and final-map process, which lets the planning commission negotiate the layout, dedications, improvements, access, and street pattern before the development is locked in. Four-or-fewer subdivisions only need a parcel map, which is faster and cheaper.

Predictably, some developers have tried "quartering" their way around the tentative-map process by splitting parcels four-at-a-time, selling them off, then doing the same thing on a neighboring parcel they just bought. Sacramento County Counsel asked the AG: when the second parcel-map application comes in, does the local agency have to add the previously-quartered parcels to the count?

Attorney General Rob Bonta said yes. The Map Act's definition of "subdivision" focuses on the actions of "any subdivider," not on who happens to own each parcel at any given moment. As long as the same subdivider is doing the serial divisions on contiguous parcels, the local agency aggregates them. Hit five total, and the full tentative-and-final-map process applies.

The opinion squarely follows Bright v. Board of Supervisors (1977) and a 1978 AG opinion (61 Ops.Cal.Atty.Gen. 114) that reached the same result, and explicitly rejects the argument that selling off the first batch of parcels before buying the next contiguous parcel breaks the chain.

What this means for you

These are 2022 conclusions. Confirm the cited Government Code sections have not been amended and that no later case has shifted the analysis before relying on a specific procedural detail.

If you are a developer or your subdivision lawyer

The "buy four, split four, sell four, buy four next door" sequence does not let you escape the tentative-map process. Before submitting a parcel-map application on land contiguous to property you have previously subdivided, talk to your land-use attorney about whether your earlier divisions will be added to the count. If the total is five or more, plan for the tentative map process from the start: it is more time, more cost, and more public review. The opinion is also a warning to be careful with related entities, family members, or LLCs you control. The AG cited Bright approvingly, and Bright counted parcels held in different ownership configurations within the family.

If you are a county or city planner reviewing parcel-map applications

Do the title search and the historical check. When a parcel-map application comes in for land contiguous to property the same applicant (or a related party acting indirectly through them) previously divided, look back. The Map Act's "any subdivider" definition is not limited to a single act of subdivision. The opinion gives you direct AG support for asking, "How many parcels have been created on this contiguous land by this subdivider, and is the total now five or more?"

If you are a county counsel or city attorney

The opinion's strongest language is at the end: the Map Act is to be "liberally construed to require the highest possible standards for orderly community development" and "to prevent circumvention of its several goals and purposes." If a developer threatens litigation over an aggregation determination, this opinion is your authority for treating serial quartering as a single, larger subdivision.

If you are a neighbor watching what looks like a workaround

Successive small subdivisions on contiguous land by the same developer are exactly the pattern the AG identified as evading the Map Act. Raising the issue with the local planning department, citing this opinion and Bright, can prompt the agency to apply the tentative-map process the larger development should have triggered.

Common questions

Q: What if the parcels were originally created by a different developer?
A: The opinion (and the 1978 opinion it relies on) draws a clean line. If a third party validly created the earlier parcels under the Map Act and the new applicant is just buying and dividing one of them, the earlier parcels are not aggregated. The aggregation rule applies when the same subdivider has created the earlier parcels.

Q: Does it matter if the contiguous parcels were never owned at the same time?
A: No. The AG specifically rejected the argument that contemporaneous ownership is required. The Map Act regulates the act of subdivision by a subdivider, not who holds title at any given moment.

Q: What is "quartering"?
A: Slang for using successive divisions of land into four (or fewer) parcels at a time to avoid the tentative-and-final-map requirements that kick in at five. The Map Act's "any subdivider" framing is what lets agencies look through the sequence to see the larger pattern.

Q: Does this opinion apply to LLCs and other entities?
A: The opinion does not draw an entity line. The "subdivider" inquiry asks whether the same person or entity (acting directly or indirectly) is responsible for the divisions. Sophisticated structures using affiliates or family members can still be aggregated under Bright's reasoning.

Q: What happens if a planning agency wrongly approves a parcel map that should have been a tentative map?
A: The Map Act has its own enforcement and challenge mechanisms; consult a land use attorney and check the timing rules carefully because Map Act challenges have short statutes of limitations.

Background and statutory framework

California first regulated subdivision mapping in 1893 and enacted the comprehensive Subdivision Map Act in 1937. Under Government Code section 66426, "[a] tentative and final map shall be required for all subdivisions creating five or more parcels." For four or fewer parcels, only a parcel map is needed (section 66428). The two-step tentative-and-final process gives planning staff and commissions room to negotiate lot layout, circulation, dedications, and street patterns before the project is locked in. The single parcel map process is much lighter.

Section 66424 defines "subdivision" as "the division, by any subdivider, of any unit or units of improved or unimproved land, or any portion thereof, shown on the latest equalized county assessment roll as a unit or as contiguous units, for the purpose of sale, lease, or financing, whether immediate or future." The phrase "by any subdivider" is the textual hook for the AG's analysis: the focus is on the subdivider's serial actions, not on parcel ownership at any given moment.

The opinion follows the path of Bright v. Board of Supervisors (1977) 66 Cal.App.3d 191, which held that successive lot divisions by the same subdivider on contiguous parcels (even where ownership shifted between the subdivider, his wife, and joint tenancy configurations) had to be aggregated. The AG also relied on its own 1978 opinion (61 Ops.Cal.Atty.Gen. 114), which reached the same conclusion and emphasized that subsequent sales of earlier-created parcels do not break the aggregation rule.

Citations and references

Statutes:
- California Government Code section 66410 et seq. (Subdivision Map Act)
- California Government Code section 66423 (definition of "subdivider")
- California Government Code section 66424 (definition of "subdivision")
- California Government Code section 66426 (tentative and final map required for 5+ parcels)
- California Government Code section 66428 (parcel map for 4 or fewer)
- California Government Code section 66424.5 (definition of tentative map)
- California Government Code sections 66433 to 66443 (final maps)
- California Government Code sections 66444 to 66450 (parcel maps)

Cases:
- Bright v. Board of Supervisors, 66 Cal.App.3d 191 (1977) (aggregation across successive divisions by same subdivider)
- Pratt v. Adams, 229 Cal.App.2d 602 (1964) (Map Act purposes)
- van't Rood v. County of Santa Clara, 113 Cal.App.4th 549 (2003)
- Fishback v. County of Ventura, 133 Cal.App.4th 896 (2005) (subdivider workarounds)
- Ailanto Properties, Inc. v. City of Half Moon Bay, 142 Cal.App.4th 572 (2006) (statutory interpretation framework)
- Tower Lane Properties v. City of Los Angeles, 224 Cal.App.4th 262 (2014) (Map Act construction)
- Kalway v. City of Berkeley, 151 Cal.App.4th 827 (2007) (broad construction of Map Act)
- John Taft Corp. v. Advisory Agency, 161 Cal.App.3d 749 (1984) (liberal construction)
- Freedland v. Greco, 45 Cal.2d 462 (1955) (statutes construed to defeat evasion)

Source

• Landing page: https://oag.ca.gov/opinions/yearly-index
• Original PDF: https://oag.ca.gov/system/files/opinions/pdfs/18-902.pdf

Original opinion text

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
ROB BONTA
Attorney General

OPINION
of
ROB BONTA
Attorney General
MANUEL M. MEDEIROS
Deputy Attorney General

No. 18-902
March 24, 2022

THE HONORABLE LISA A. TRAVIS, SACRAMENTO COUNTY COUNSEL, has requested an opinion on a question related to the Subdivision Map Act.

QUESTION PRESENTED AND CONCLUSION

If a subdivider owns one parcel and subdivides that parcel pursuant to a parcel map (that is, into four or fewer parcels), then sells all of the resulting subdivided parcels, and subsequently acquires a contiguous parcel and seeks to divide that parcel pursuant to a parcel map, should the local agency count the previously subdivided parcels as part of the second application?

Yes. In this situation, the local agency should count the parcels created by the first subdivision as part of the second application.

BACKGROUND

The subdivision of land is a key component of land development. As one commentator has observed, "[t]he subdivision of land, designating lots and laying out streets, is the aspect of development which most permanently and significantly sets the pattern for the development of a community."

California began regulating the mapping of subdivisions in 1893, and first enacted a comprehensive "Subdivision Map Act" in 1937. The Act prohibited the sale of subdivided land without prior government approval of the subdivision, and authorized local governments to regulate the "design and improvement of subdivided property." Reflecting the potential impact of development, the Act's purposes are manifold:

[A] primary goal of the Map Act and local subdivision ordinances is to encourage orderly community development by providing for the regulation and control of the design and improvement of a subdivision, with proper consideration of its relation to adjoining areas. . . . The Map Act facilitates coordination of subdivision planning (including, e.g., lot size and configuration, street patterns, and utility easements) with the overall community planning shown on the general and specific plans adopted by the city or county. . . . A related purpose of the Act is to ensure consistency of subdivision design and improvement with applicable local standards for development type and density, public health, and other environmental concerns. By regulating and controlling the development of subdivisions, the Map Act also serves to protect the public and individual transferees from fraud and exploitation.

Generally, a subdivision may only be created by first obtaining local government approval of a subdivision map. When a proposed subdivision will create four or fewer parcels, only a "parcel map" is required. However, when a proposed subdivision will create five or more parcels, a two-step mapping process is ordinarily required: the filing of both a "tentative map" and a "final map." The difference in requirements reflects the fact that larger subdivisions give rise to various considerations that may not be associated with smaller subdivisions. These include the layout of lots, circulation, and access within the subdivision; the nature and extent of dedications and improvements; and the subdivision's relationship to adjoining lands. For larger subdivisions, "[t]he tentative-map process gives the staff and the approving body (usually the planning commission) flexibility in suggesting acceptable changes to the subdivision before it is finally mapped."

The two-step mapping process that applies to larger subdivisions can be more costly and time-consuming than the "parcel map" process that applies to smaller subdivisions. Accordingly, subdividers may use various approaches to avoid the more extensive mapping requirements. One such approach, referred to as "quartering," involves successive divisions of land into four or fewer parcels as a way of avoiding tentative- and final-map requirements.

The opinion request describes a situation where a subdivider owns one parcel, subdivides it into four parcels using a parcel map, and sells all of the resulting subdivided parcels. The subdivider subsequently acquires a contiguous parcel and seeks to divide that parcel into another four parcels. The request asks whether the local government should consider the successive subdivisions of the parcels, never simultaneously owned by the subdivider, as one subdivision for purposes of applying the provisions of the Map Act, meaning it would treat the subdivision as creating a total of eight parcels, triggering the Map Act's two-step mapping process.

ANALYSIS

As a general rule, the Map Act requires a tentative and final map "for all subdivisions creating five or more parcels." The critical question here is whether the "subdivision[] creating five or more parcels" must happen in a single act or can occur through serial acts of subdivision with an intervening sale of subdivided parcels, such that there is no contemporaneous ownership of the parcels to be subdivided.

In construing the Map Act, our fundamental task is "to determine the Legislature's intent so as to effectuate the law's purpose." In doing so, we are guided by standard principles of statutory construction. "The primary and controlling consideration in the construction of a statute is the determination of, and the giving effect to, the legislative intent behind the statute. Where the language of the statute is clear, it is not difficult to ascertain the legislative intent and to follow the plain meaning of the words used. The ordinary and usual import of the language is to be adopted and harmonized with other statutes relating to the same subject matter." However, when the statutory language is unclear, "it is appropriate to consider the consequences that will flow from a particular interpretation." Then, "our task is to select the construction that comports most closely with the Legislature's apparent intent, with a view to promoting rather than defeating the statutes' general purpose, and to avoid a construction that would lead to unreasonable, impractical, or arbitrary results."

We begin our analysis with the text of the Map Act and note that it defines "subdivision" as a verb: "the division, by any subdivider, of any unit or units of improved or unimproved land, or any portion thereof, shown on the latest equalized county assessment roll as a unit or as contiguous units, for the purpose of sale, lease, or financing, whether immediate or future." Consistent with this syntax, the Act mandates that "[a] tentative and final map shall be required for all subdivisions creating five or more parcels." This statutory language makes clear that the focus of the Act is on the actions of a subdivider, not the ownership of the subdivided parcels.

Thus, when evaluating successive subdivisions of contiguous parcels under different ownership, the critical inquiry is whether they are the work of the same subdivider, whether directly or indirectly. In Bright v. Board of Supervisors, the question before the Court of Appeal was whether the subdivider, Bright, had created a "subdivision" comprising five or more parcels by a series of lot divisions occurring over time. Bright acquired parcel "A" as his separate property in 1966. Two years later, he and his wife acquired a contiguous parcel "B," which they held in joint tenancy. Three years thereafter, Bright conveyed his interest in a portion of parcel "B" to his wife as her separate property, thereby creating parcel "C." Two years thereafter still, Bright proposed to divide parcel "A" into four additional parcels by a parcel map. County officials rejected the proposed quartering of parcel "A" on the ground that the four parcels must be aggregated with Bright's earlier creation of Parcel "B"-"C", resulting in five or more parcels. The trial court rejected the county's determination on the ground that "there was no substantial evidence as to whether or not contiguous Parcels 'A' and 'B'-'C' were being developed together or whether or not they have common streets or other common planning." The Court of Appeal tersely overruled: "[T]here is . . . no requirement there must be a common plan of development." This makes sense: The Act's concern is unregulated land development, whether the development occurs in a subdivider's single act of subdivision or from the subdivider's serial acts of subdivision.

Unlike the scenario in Bright, the opinion request assumes that the subdivider will subdivide and sell the first set of parcels before acquiring ownership of the second contiguous parcel it seeks to subdivide. But it is not relevant, in our view, that by the second subdivision application the owners of the contiguous lots are different, or that the lots were never contemporaneously owned. The Act requires only that the lots comprising the subdivision be shown "as contiguous units" on the latest equalized county assessment roll. On its face, the Act is concerned with regulating subdivision development, by "any subdivider . . . for the purpose of sale, lease or financing, whether immediate or future," not with who owns the parcels at the time of subdivision. Notably, since its original enactment, the Subdivision Map Act has never defined "subdivision" in terms of the owner of the parcel being divided, but rather in terms of a "subdivider" of parcels. And the Legislature has always recognized that a subdivider may act on his or her behalf, "for himself or for others." If contiguous units are subdivided, the statute includes no requirement that the parcels, at the time of subdivision, are or have been under common ownership. We will not read such a requirement into the statute, especially since doing so could undermine the evident purposes of the Act.

Our conclusion here is consistent with our opinion issued over 40 years ago. There, we were presented with the circumstance of a subdivider who, owning several contiguous parcels previously created by a third party, proposed to subdivide one of those contiguous parcels. We were asked whether the other parcels, having been validly created by the third party, could be excluded for purposes of determining the mapping requirements. We concluded that they could be so excluded because they had, in fact, been subdivided by someone else, acting independently. We were also asked, however, if our hypothetical subdivider should seek to successively subdivide several of the contiguous parcels, whether all of the parcels should be viewed collectively for purposes of the Map Act. We concluded that all the parcels would have to be aggregated, even if they had been sold and were under separate ownerships at the time of the subsequent subdivision application. Key to our distinction was the fact that all of the excluded parcels in the first division had been created by a different subdivider, whereas all of the subsequent divisions would have been accomplished by the same subdivider as accomplished the first division. We explained:

[T]he successive division of contiguous parcels by the same subdivider must be considered together in determining the applicable standards to be applied under the Map Act. The fact that the contiguous parcels were created by a third party in compliance with the Map Act or other law applicable at that time or that a part of an earlier division had been transferred by sale or otherwise should not detract from the application of the Map Act standards to the division of land where the purpose of the Map Act is to secure the orderly development of land . . . , and in a significant respect is based upon the number of parcels created. Whether the parcels are created all at the same time or over a period of time does not detract from the application of the Map Act . . . , and the fact that some of the earlier parcels have been sold should not detract from the determination that a particular number of parcels have been created overall.

The reasoning of our prior opinion applies to the question presented here. The purposes of the Map Act in securing orderly community development would be seriously undermined if a subdivider could avoid tentative and final mapping obligations by the successive acquisition, quartering, and sale of contiguous parcels. The effect would be to allow the creation of subdivisions, through phased quartering and disposition, without adequate consideration of subdivision standards and broader concerns for community development. That the subdivider sells off his quartered parcels before acquiring another for further division should not avoid the Legislature's concern for greater scrutiny of larger developments. We have previously expressed our view, supported by the courts, that the provisions of the Act are to be "liberally construed to require the highest possible standards for orderly community development" in order "to prevent circumvention of its several goals and purposes."

We conclude, then, that if a subdivider owns one parcel and subdivides that parcel pursuant to a parcel map, then, after selling off all of the resulting subdivided parcels, acquires a contiguous parcel and seeks to divide that parcel pursuant to a parcel map, the local agency should count the previously subdivided contiguous parcels as part of the second application for subdivision.