Summer 2011 pg3

Shaded Parcels – “Sub-Holes” of a Very Deep Hole

By Charley Custer

My favorite only-in-Humboldt oddity has been the subject of Grand Jury reports, Task Force recommendations and a Blue Ribbon inquiry, not to mention impassioned calls for reform for 30 years-but Google has never heard of it. You probably haven’t either.

However, whether you know about it or not, a ‘shaded parcel’ may rise up from under the Planning Department’s front counter as you stand before it, and make allegations against your property. Five thousand shaded parcels may be cataloged under the Planning Department’s counter, and their allegations will stop you from pulling a building permit, or perhaps closing a land sale, until you have established the innocence of your property. Even if you didn’t know that real estate could be guilty of anything.

Community Development Services Director Kirk Girard doesn’t think this is ideal. He says, “I’d love to go through every shaded parcel and prove them innocent or guilty. That would be a perfect world. But you’re looking at a massive job. Sometimes the evidence is a little weak, and this gets into sub-holes of the deep hole-we always have to say yes or no, but we don’t always have good knowledge in making that determination.”

What kind of sub-hole of a deep hole would make your property innocent or guilty? Here’s Director Girard’s explanation: “There’s always been legal and illegal ways to convey land. At one time you could do it with a flag-but you had to mark your corners. As long as the Europeans have been here, there’s been a right way and a wrong way to do it. You used to have to follow the Land Patent Act. Now it’s the Subdivision Map Act. So this issue of whether it was done right or wrong in the past has been with us since Day One. The people in charge of determining right and wrong have changed.”

The people charged with notification of problems have also changed. Section 66499.36 of the Map Act says: “Whenever a local agency has knowledge that real property has been divided in violation of the provisions of this division . . . it shall cause to be mailed by certified mail to the then current owner of record of the property a notice of intention to record a notice of violation . . .”

No such notice concerning shaded parcels has ever happened. Mandated notification may sound straightforward, but Girard explains it like this: “This is almost a Bill Clinton: how do you define knowledge? Does a shaded parcel constitute knowledge? How do we determine that something’s been done in violation of this? We go through the Certificate of Compliance process. How many shaded parcels in our book have gone through it? Zero. I say there’s degrees of knowledge associated with parcels.”

What degree of knowledge may shade a parcel? In a recent example of how this works, the county has shaded 10 parcels surrounding the new Alton interchange south of Fortuna, where Highway 36 meets 101. Caltrans bought slices of properties for the new construction, leaving smaller parcels. A retired couple found that, because Caltrans had made them an offer they couldn’t refuse for a slice of their property, the county no longer considered their remaining parcel legal, so they could no longer get a building permit for that land, or sell it to be developed-though they’d had no idea this could happen from cooperating with the state. As Girard explains, “Where the state purchases or condemns property, the state is exempt from the Map Act. What the state doesn’t do is give a clean bill of health to the remnant piece left over. This goes into the arcane aspects of the Subdivision Map Act: our local jurisdictions are required to do a Remnant Analysis or Determination of Conformance, but we can’t tell the state to stop.

“What we’ve done in those cases, sometimes we do Conditional Certificates of Compliance, where you have to do XYZ to make it legal. In other cases we’ve offered a planner zone change, and in other cases we’ve gotten ahead of this, with determinations of conformance that can help property owners, because we tell Caltrans the remnant is substandard, so the owner can force them to buy their entire property. That’s part of the lore of these state acquisitions.” Another part of the lore is relic property just sitting there.

I got a different perspective on these issues from a real estate professional who works on the other side of the counter. “The County isn’t complying with the law that requires notifying owners that there’s a legal issue with their parcels’ creation,” he says. “The County parses words, saying ‘We don’t actually know if there is something wrong with your parcel, we just suspect it to be so, so we shade the parcel.’ This means the parcel is guilty until proven innocent, and you or subsequent owners won’t know there’s a cloud over it until you come in for a permit.

“Then they tell you to go through the Determination of Status process (which has taken up to 3 years in the past), and then they either deny the legality of your parcel, or ask you to go through the Certificate of Compliance process (which has taken up to two years more), and then if you pass that they’ll accept your application permit (which may take another 6 to 12 months to process).

“The result is that if you want a permit, and the County has avoided doing what the law requires, they’ve just delayed any permit activities on the parcel for multiple years. Many innocent landowners have purchased an illegal parcel without the information that state law requires Humboldt County to provide. There’s no statutory time limit requiring the County to complete these processes. How is this different than if the County knew you had an illegal parcel? It isn’t, except that all their word games justify the County’s violation of the intent of the statute.”

Kirk Girard argues that the statute concerns knowledge, not suspicion-and suspicion isn’t governed by statute. We’re left to wonder what the law was intended to do, since the County can’t approach sure knowledge of a parcel’s legality without going through their Certificate of Compliance process-which the landowner must pay for, before the County will send the letter that says it’s necessary.

If your parcel is shaded, you must find proof that it was conveyed according to laws in effect at the time of its creation, to the County’s satisfaction, or you can’t get service of any kind from county planning. But how can you find out if your parcel may be suspect? Unfortunately, only by gathering the creation documents, and asking the Planning Division for that Determination of Status. But the Planning Division may not be aware of how shady your property may be, until you ask them.

The result of this conundrum is better known than its cause: a great many rural landowners wouldn’t set foot in the Planning Division on a dare, even though their unpermitted houses and structures are now routinely built to code. The fear of regulatory booby traps, such as allegations from a shaded parcel map, dissuades residents from doing what the ever-less-funded Planning Division of Community Development Services desperately needs us to do: present ourselves voluntarily for their services, to help fund them with our fees.

Girard wryly acknowledges this, and muses on our slow evolution into the California mainstream. He says, rather optimistically, “We move in lockstep, but with a lag in time behind us [in Humboldt]. The education process is painful for everyone. We’re remote, and our culture is defined as a culture apart. From my chair, we reconcile these things every day. It may not be fast enough in some people’s minds, but that’s the business we’re in.”

The Planning Division is in the reconciliation business? If that assertion were a parcel, I suspect someone would shade it.

 

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