In the clearest decision to date on antiquated subdivisions, the First District Court of Appeal has ruled that subdivision maps recorded prior to the first version of the Subdivision Map Act in 1893 do not create legal parcels. "Despite the bold vision of those who created them, such early subdivision maps — if drawn and recorded before 1893 — do not create legal parcels within the meaning of California's Subdivision Map Act," Justice James Marchiano wrote for court. The case, which stems from an 1865 map in Sonoma County, appears to resolve what has been one of planning's stickiest issues — the legal status of "paper subdivisions" that were recorded with no review and often without regard to topography or provision of public services. An estimated 400,000 to 1 million paper lots exist in California, many in coastal counties. "It really was an unclear area. It was like dancing on the head of a pin," said Les Perry, who represented landowners Jack and Jocelyn Gardner in the case. Perry, who said he will seek a state Supreme Court review of the decision, said he was "disappointed, but not surprised" by the ruling. Both Perry and Sonoma Deputy County Counsel Sue Gallagher, who defended against the lawsuit, agreed that the clear facts of the case made it a good one for resolution of the issue. "It's quite important for us and quite a few other counties," Gallagher said. "We have many other old maps here in Sonoma County from the mid- and late-1800s." Other recent cases have not been so clear-cut. Last year, the Second District Court of Appeal ruled in a complicated case from Santa Barbara County that pre-1893 subdivisions do not exist unless the parcels therein have been subject to a transfer of title at some point. (Circle K Ranch Corp. v. Board of Supervisors of the County of Santa Barbara, No. B124996, see CP&DR Legal Digest, May 2000.) However, the state Supreme Court ordered that decision depublished. The Second District tackled another antiquated subdivision case this year but ruled that the plaintiff did not have standing to bring the lawsuit. (County of San Luis Obispo v. Superior Court, 2001 DJDAR 6739, see CP&DR Legal Digest, August 2001.) A few important cases have touched on the issue of antiquate subdivisions, but none dealt with it directly. The state Supreme Court came close in the landmark case of Morehart v. County of Santa Barbara, (1994) 7 Ca.4th 725. The parcel in question in Morehart appeared on an 1888 map. However, the county conceded that the lot existed and the question was whether the Subdivision Map Act's merger provision applied. The state high court "explicitly declined to decide the issue of whether a pre-1893 antiquated map ‘creates' a legal parcel …" Justice Marchiano wrote in the case at hand. This case was brought by the Gardner family, which owns about 158 acres west of Sebastopol. The property is depicted on a 90-lot map recorded in 1865 by landowner S.H. Greene. The Gardners' property contains two full lots and portions of 10 others depicted on the Greene map. These days, the site is zoned Resource and Rural Development. It contains steep slopes and is the subject of a timber harvest plan. In 1996, the Gardners applied for 12 certificates of compliance for their lots. County planners denied the application, a decision that both the Planning Commission and the Board of Supervisors upheld. The board found that recognizing the old map would undermine "rational land use planning." So the Gardners filed a lawsuit, alleging that the Subdivision Map Act's grandfather provision covered the Greene map. Sonoma County Superior Court Judge Knoel Owen ruled for the county. A unanimous three-judge panel of the First District, Division One, agreed. The appellate court found that the grandfather clause was inapplicable. "The Legislature intended the grandfather clause to apply to subdivisions approved under prior versions of the Act, i.e., to exempt from the current Act those subdivisions established in compliance with or exempt from laws then in effect. The Legislature, with its strenuous emphasis on local control and approval of subdivisions, did not intend the grandfather clause to apply to the pre-1893 legal ‘State of Nature' when no subdivision statute was in existence," Marchiano wrote. He continued, "The Map Act does not reveal a legislative intent to exempt recorded subdivision maps which were not subject to any subdivision law from a time when there was little land use regulation. … [I]f the Legislature wished to exempt antiquated maps from the Map Act, it could have done so in clear and express language. Grandfathering does not spring up by inference." To make his point, Marchiano noted that every version of the Subdivision Map Act since 1907 has had a grandfather clause — but the original act from 1893 did not. If lawmakers wanted to grandfather in pre-1893 maps, it would have done so at the time, he wrote. Gallagher said she was happy to get this issue resolved. But, she said, there still exists the question of validity of maps recorded between 1893 and 1929 because not until the 1929 revision of the map act was local government review and approval required. Prior to that time, the map act was concerned with the mechanics of drawing and recording maps, not whether the subdivisions were a good idea. The Case: Jack A. Gardner v. County of Sonoma, No. A093139, 01 C.D.O.S. 8793, 2001 DJDAR 10909. Filed October 11, 2001. The Lawyers: For Gardner: Leslie Perry, Perry, Johnson, Murray, Anderson & Miller, (707) 525-8800. For the county: Sue Gallagher, deputy county counsel, (707) 565-2421.