Chapter 16.44
ENFORCEMENT
Sections:
16.44.010 Prohibition and penalty.
16.44.030 Certificate of compliance.
16.44.040 Certificate of noncompliance.
16.44.010 Prohibition and penalty.
A. No person shall sell, lease, or finance any parcel or parcels of real property or commence construction of any building for sale, lease or financing thereon, except for model homes, or allow occupancy thereof, for which a final or parcel map is required by this title, until such map thereof in full compliance with the provisions of this title or the state Subdivision Map Act has been filed for record in the county recorder’s office.
B. Conveyance of any part of a division of real property for which a final or parcel map is required by this title or the state Subdivision Map Act shall not be made by parcel or block number, initial or other designation, unless and until such map has been filed for record by the county recorder.
C. This section does not apply to any parcel or parcels of a subdivision offered for sale or lease, contracted for sale or lease, or sold or leased in compliance with or exempt from any law (including a local ordinance), regulating the design and improvement of subdivisions in effect at the time the subdivision was established.
D. Nothing contained in subsection A of this section shall be deemed to prohibit an offer or contract to sell, lease or finance real property or to construct improvements thereon where such sale, lease, or financing, or the commencement of such construction, is expressly conditioned upon the approval and filing of a final subdivision map or parcel map, as required by this title.
E. Any person who violates any provision of this title shall be guilty of a misdemeanor. (Ord. 626 § 1 (Art. VIII § 801), 1983)
16.44.020 Remedies.
A. Any deed of conveyance, sale or contract to sell real property which has been divided, or which has resulted from a division, in violation of the provisions of this title or of the state Subdivision Map Act, is voidable at the sale option of the grantee, buyer or person contracting to purchase, his heirs, personal representative, or trustee in insolvency or bankruptcy within one year after the date of discovery of the violation, but the deed of conveyance, sale or contract to sell is binding upon any successor in interest of the grantee, buyer or person contracting to purchase, other than those above enumerated, and upon the grantor, vendor or person contracting to sell, or his assignee, heir or devisee.
B. Any grantee, or his successor in interest, of real property which has been divided, or which has resulted from a division, in violation of the provisions of this title or of the state Subdivision Map Act, may, within one year of the date of discovery of such violation, bring an action in the Superior Court to recover any damages he has suffered by reason of such division of property. The action may be brought against the person who divided the property in violation and against any successors in interest who have actual or constructive knowledge of such division of property.
C. The provisions of this section shall not apply to the conveyance of any parcel of real property identified in a certificate of compliance filed pursuant to SMC 16.44.030 or identified in a recorded final map or parcel map, from and after the date of recording. The provisions of this section shall not limit or affect in any way the rights of a grantee or his successor in interest under any other provision of law.
D. This section does not bar any legal, equitable or summary remedy to which the city or other public agency or any person, firm or corporation may otherwise be entitled, and the city, other public agency, or such person, firm or corporation may file suit in the superior court of Monterey County to restrain or enjoin any attempted or proposed subdivision for sale, lease or financing in violation of this title.
E. The city shall not issue a permit or grant any approval necessary to develop any real property which has been divided, or which has resulted from a division, in violation of this title or the state Subdivision Map Act if it finds that development of such real property is contrary to the public health or the public safety. The authority to deny such a permit or such approval shall apply whether the applicant therefor was the owner of record at the time of such violation or whether the applicant therefor is either the current owner of record or a vendee of the current owner of record pursuant to a contract of sale of the real property with, or without, actual or constructive knowledge of the violation at the time of the acquisition of his interest in such real property. If the city issues a permit or grants approval for the development of any such real property, it may impose only those conditions that would have been applicable to the division of the property at the time the applicant acquired his interest in such real property, and which has been established at such time by this title or the state Subdivision Map Act, except that where the applicant was the owner of record at the time of the initial violation who, by a grant of the real property, created a parcel or parcels in violation of this title or the state Subdivision Map Act, and such person is the current owner of record of one or more of the parcels which were created as a result of the grant in violation, then the local agency may impose such conditions as would be applicable to a current division of the property, and except that if a conditional certificate of compliance has been filed for record under the provisions of SMC 16.44.030 only such conditions stipulated in that certificate shall be applicable. (Ord. 626 § 1 (Art. VIII § 802), 1983)
16.44.030 Certificate of compliance.
A. Any person owning real property within the city or a vendee of such person pursuant to a contract of sale of such real property may request, and the city shall determine, whether such real property complies with the provisions of this title.
B. Upon making such a determination, the city engineer shall cause a certificate of compliance to be filed for record with the county recorder. The certificate of compliance shall identify the real property and shall state that the division thereof complies with applicable provisions of this title and of the state Subdivision Map Act.
C. If the city engineer determines that such real property does not comply with the provisions of this title or of the state Subdivision Map Act, he may, as a condition to granting a certificate of compliance, impose such conditions as would have been applicable to the division of the property at the time the applicant acquired his or her interest therein, and which had been established at such time by this title or the state Subdivision Map Act, except that where the applicant was the owner of record at the time of the initial violation who by a grant of the real property created a parcel or parcels in violation of this title or the state Subdivision Map Act, and such person is the current owner of record of one or more of the parcels which were created as a result of the grant in violation, then the local agency may impose such conditions as would be applicable to a current division of the property. Upon making such a determination and establishing such conditions, the city engineer shall cause a conditional certificate of compliance to be filed for record with the county recorder. Such certificate shall serve as notice to the property owner or vendee who has applied for the certificate pursuant to this section, a grantee of the property owner, or any subsequent transferee or assignee of the property that the fulfillment and implementation of such conditions shall be required prior to subsequent issuance of a permit or other grant of approval for development of the property. Compliance with such conditions shall not be required until such time as a permit or other grant of approval for development of such property is issued by the local agency.
D. A certificate of compliance shall be issued for any real property which has been approved for development pursuant to SMC 16.44.020(E).
E. A recorded final map or parcel map shall constitute a certificate of compliance with respect to the parcels of real property described therein.
F. A fee to be charged at actual cost shall be charged to the applicant for making the determination and processing the certificate of compliance. A deposit may be required to be applied toward this fee. (Ord. 626 § 1 (Art. VIII § 803), 1983)
16.44.040 Certificate of noncompliance.
Whenever the city engineer has knowledge that real property has been divided in violation of the provisions of this title or the state Subdivision Map Act, he shall cause to be filed for record with the county recorder a tentative notice of violation (certificate of noncompliance) describing the real property in detail, naming the owners thereof, and describing the violation and stating that an opportunity will be given to the owner to present evidence. At least thirty days prior to the recording of a final notice, the owner of the real property shall be advised in writing of the intention to record a final notice specifying a time, date and place at which the owner may present evidence as to why such notice should not be recorded. If, after the owner has presented evidence, it is determined that there has been no violation, the local agency shall record a release of the notice of intention to record a notice of violation with the county recorder. If, however, after the owner has presented evidence, the city council determines that the property has in fact been illegally divided, or if within sixty days of receipt of such copy the owner of such real property fails to inform the city engineer of his objection to recording the notice of violation, the city council shall record the notice of violation with the county recorder. The notice of intention to record a notice of violation and the notice of violation, when recorded, shall be deemed to be constructive notice of violation to all successors in interest in such property. The county recorder shall index the names of the fee owners in the general index. (Ord. 626 § 1 (Art. VIII § 804), 1983)
16.44.050 Judicial review.
There shall be a ninety-day appeal period commencing at the tentative map approval during which time a person may take any action or proceeding to attack, review, set aside, void or annul the decision of the subdivision committee, the planning commission or the city council concerning a subdivision, or of any of the proceedings, acts or determinations taken, done or made prior to such decision, or to determine the reasonableness, legality or validity of any condition attached thereto. Thereafter, all persons are barred from any such action or proceeding or any defense of invalidity or unreasonableness of such decision or of such proceedings, acts or determinations. Any such proceeding shall take precedence over all matters of the calendar of the court except criminal, probate, eminent domain and forcible entry and unlawful detainer proceedings. (Ord. 626 § 1 (Art. VIII § 805), 1983)