Mendocino County's automatic merger of four lots into one has been upheld by an appellate court. The court rejected the property owners' argument that they should have received advance notice from the county before the lot merger became effective.
The conflict between property owners William and Tona Moores and the county has been ongoing since the mid-1990s. The Moores contend that the lots were never merged because the county did not comply with its own ordinance requiring notice. The county has steadfastly held to its position that the lots automatically merged long ago. The Moores sued, but Mendocino County Superior Court Judge Richard Henderson ruled for the county. On appeal, the First District Court of Appeal upheld Judge Henderson.
In October 1981, the county adopted a merger ordinance that mandated the merger of contiguous parcels under the same ownership in rangeland, forest land or agricultural zones. The ordinance required that at least one of the parcels be undeveloped and that one be of substandard size.
In January 1982, the county modified its ordinance to include a “due process” provision, which required the county to give property owners a written notice at least 30 days prior to the county's official recording a notice of lot merger. Not until December 1986, though, did the county notify the Moores and approximately 2,300 other property owners via form letter that their parcels may be been combined five years earlier.
The county's notice came shortly before a January 1, 1987, deadline for notice prescribed in state law. That deadline was contained in a 1985 amendment to the Subdivision Map Act governing the sort of mergers the Mendocino County had undertaken. In fact, the Legislature approved the statute - Government Code §§ 66451.301 and .302 - specifically to aid Mendocino County, which said it could not provide individual notice to property owners before an earlier, state-prescribed deadline.
“The Legislature responded by enacting §§ .301 and .302 as urgency legislation,” Presiding Justice Laurence Kay wrote for the First District. “The plain import of §§ .301 and .302 was to preserve mergers accomplished through local law by exempting them from the requirement of recorded notice and allowing the more informal notice outlined in § .302.”
The court accepted the county's argument that the notice required in § .302 was the only notice required, despite the county ordinance's due process provision.
“The County's merger ordinance specified that parcels would be merged 'upon the effective date of this ordinance … .' This is an example of what is known as 'automatic merger,' requiring no additional steps to take effect,” the court ruled. “Because this occurred through legislation, due process did not require notice and opportunity for a hearing. The county's subsequent enactment of an ordinance providing for recording of notice and a hearing did not result in unmerging parcels already automatically merged the previous year by operation of law.”
“By sending plaintiffs the letter satisfying the provisions of § .302, the county preserved the automatic merger of parcels accomplished by operation of law when it first enacted its merger ordinance in October of 1981,” the court concluded.
The Case:
Moores v. Board of Supervisors of Mendocino County, No. A105446, 04 C.D.O.S. 8814, 2004 DJDAR 12003. Filed September 24, 2004.
The Lawyers:
For Moores: Ginevra King, Carter, Behnke, Oglesby & Bacik, (707) 462-6694.
For the county: Frank Zotter Jr., county counsel's office, (707) 463-4446.
