MySitePlan Lawsuit

[cmiller]

MySitePlan short version By Bruce Joffe

11-3-22

Link to lawsuit

[cmiller]

MySitePlan: Summary of a Week’s Discussion 10-30-22

During the week of Oct 24 – 28 four GIS professionals’ groups have met to discuss the MySitePlan situation – the California chapter of URISA (CalURISA), the California Geographic Information Association (CGIA), URISA’s Policy Advisory Committee (PAC), and the GIS Professionals and Surveyors working group to review the NCEES Model Law and Rules (GIS-Surveyors). The following is a summary of take-away ideas and next steps. If I have omitted something important, please let me know. You are receiving this Summary because you participated in one of these meetings, or you are on a distribution list of one of these groups. Do let me know if you don’t want to receive more emails on this topic.

Problem
The CA Board for Professional Engineers, Land Surveyors, and Geologists (Board) thinks that the site plans (maps/diagrams) offered to the public by MySitePlan.com are survey products that “locate, relocate, establish, reestablish, or retrace” property boundary lines, and therefore these site plans constituted MySitePlan’s practicing surveying without a license. The site plans, and MySitePlan.com’s website, carry this disclaimer: “THIS IS NOT A LEGAL SURVEY, NOR IS IT INTENDED TO BE OR REPLACE ONE.” Nevertheless, the Board fined the company $1,000 and issued a cease-and-desist order.

Site plans are requested by city and county planning and building departments as a first step when a property owner applies for a building permit. The government agencies do not require that the site plans be created nor certified by a licensed surveyor.

Some Surveyors and some GIS Pros see a danger if inaccurate, non-authoritative site plans misrepresent a property boundary or a setback zone, allowing an owner’s proposed new construction to accidentally encroach on a neighbor’s property.

Some Surveyors and some GIS Pros think that the disclaimer may not be fully understood nor appreciated by the MySitePlan customers. Indeed, some people misinterpret the authority of Assessor parcel maps to define property boundaries (they don’t) despite disclaimers.

Conclusions (discussion to follow below)

1 – Need for a Model Disclaimer and disclaiming statement (and a statement explaining Permit requirements)
Glenn O’Grady volunteered to write an initial draft

2 – Need for a short statement on the differences and similarities between the Practice of Survey and the geospatial work that GIS professionals do.
Ed Wells volunteered to write an initial draft

3 – Need to distribute these models and statements to both private practitioners and public agencies to educate them, and in turn to educate the public whom they serve.
Bruce volunteered to write an initial draft of a letter to NCEES from both URISA and NSPS
Ryan volunteered to invite a few more Surveyors to these collaborative efforts.

If you are interested in contributing to these efforts, please let me know and I will notify you about future work group meetings.

Further Discussion

1 – Need for a Model Disclaimer and disclaiming statement
When public agencies license their GIS data for private use, the license should include a disclaimer that “this is not a survey product.”
Disclaimers should have a check box that the customer must activate to attest that they have read and understand the disclaimer.
The L.A. County Assessor’s disclaimer: “Assessor Maps are produced for property assessment purposes, and are NOT surveys. No warranties, expressed or implied, are provided for the data therein, its use, or its interpretation.”
The CA Dept of Water Resources disclaimer says in part, “no warranties or guarantees – either expressed or implied – as to the completeness, accuracy, or correctness of the data herein.”
Perhaps there is an analogy to the various open-source software type license agreements, such as MIT, GNU and other “CopyLeft” type language.
If you know of a good disclaimer, please send it to me.

2 – Need for a short statement on the differences and similarities between the Practice of Survey and the geospatial work that GIS professionals do.
A one-pager that describes how Surveyors create authoritative documents that define the location of a property boundary, and how other geospatial maps that reproduce those boundaries are not locationally authoritative.

3 – Need to distribute these models and statements to both private practitioners and public agencies to educate them and in turn to educate the public whom they serve.
The GIS-Surveyor work group has developed a proposal for modifying the NCEES Model Law (defining the practice of survey) that state licensing laws are roughly based on. Currently, we are vetting the proposal with the Boards of Directors of NSPS and URIS. Subsequently, we may ask other geospatial organizations to endorse these recommendations as well.
Some GIS managers may be willing to present the GIS-Surveyor statements to their City Council for adoption, thereby requiring that these statements be distributed to citizens by their planning and building permitting departments.
If you have suggestions for other ways to distribute this educational information, lettuce snow.

4 – Further arguments about the case.
MySitePlan’s attorneys (the Institute for Justice) are fighting the Board’s cease-and-desist injunction in Federal court as a First Amendment issue. Government may regulate professional conduct, but not professional speech (except in very limited circumstances). They say this case demonstrates governments do not understand this distinction. MySitePlan takes preexisting information and uses it to create new information. The US Supreme Court has already said this is speech, not conduct. The attorneys say the Board has no right to limit “speech,” which includes the making of maps, when that is based on preexisting information. Most of the GIS community, and many Surveyors as well, recognize that making original measurements and compiling them into documents that define or determine the location of boundaries is the practice of survey. Compiling those boundaries into subsequent representational maps (e.g. GIS products) does not “determine” those boundary locations and is not the practice of survey. MySitePlan maps are not authoritative, they are informational.

GIS managers in two public agencies attest that the requested site plan sketches are simply the preliminary step to issuing a building permit. Subsequently, the government agency may require detailed engineering drawings or certified survey products when necessary. Potentially encroaching decisions are not made from site plan sketches or diagrams.

An interested surveyor has reported to me that the California Building Code specifically states site plans will be based on an accurate boundary. The word accurate places the work in the wheelhouse of a land surveyor.

Since local agencies do not require that the initial site plans be certified by a licensed surveyor, some people wondered whether the Board is setting a higher standard than local governments, which is not in their power to do. One of our Surveyor colleagues pointed out that the state regulates surveying, not local government. The issue here is not the State telling the locals that they cannot require only a sketch. The issue is “Does the sketch they require represent the practice of surveying?” If the court says “yes,” then any non-surveyor submitting the plan would be breaking the law.

Thanks for your interest,
Bruce Joffe

[jelfelt]

I remembered an additional point.

5. CA building code regulations

The California Building Standards Commission adopts regulations related to the building code. https://www.dgs.ca.gov/BSC/About

Site plans are addressed at 2022 California Building Code, Title 24 [A] 107.2.6 which states as follows.

“The construction documents submitted with the application for permit shall be accompanied by a site plan showing to scale the size and location of new construction and existing structures on the site, distances from lot lines, the established street grades and the proposed finished grades and, as applicable, flood hazard areas, floodways, and design flood elevations; and it shall be drawn in accordance with an accurate boundary line survey. In the case of demolition, the site plan shall show construction to be demolished and the location and size of existing structures and construction that are to remain on the site or plot. The building official is authorized to waive or modify the requirement for a site plan when the application for permit is for alteration or repair or when otherwise warranted.”

Thus, the above regulation links site plans to surveys and then allows local building officials to modify that requirement. Apparently many building officials in CA have modified that requirement and are accepting site plans that are not based on a survey.

Can the statutory definition of land surveying be harmonized with the above regulation? Great question. If the answer is ‘no” then the rule is that statutes control over regulations. Of course that brings us back to the constitutional issues raised in the MySitePlan lawsuit.

[jelfelt]

I have relevant info to share since the CA survey board accused me of surveying without a license and I beat the rap. My second post has appeared in this thread but my first post has not appeared. Any suggestions?

[jelfelt]

The forum is rejecting my first post for having too many links to supporting material. I have broken my first post into 2 parts. You will need to add a leading ‘h’ to each link. Here is part 1.
=========================
My name is Joseph Elfelt and a few years ago the executive officer for the CA survey board decided that I was surveying without a license due to the consulting service I offer.
ttps://findpropertylines.com
ttps://propertylinemaps.com

The executive officer served me with a citation that included (1) a $5,000 fine and (2) an order of abatement, i.e. cease and desist.

BTW, if my name seems familiar to some of you it is likely because I am the guy that curates an ArcGIS server list.
ttps://mappingsupport.com/p/surf_gis/list-federal-state-county-city-GIS-servers.pdf
I am also the developer of GISsurfer. ttps://gissurfer.com

I filed an administrative appeal of the citation. The administrative judge upheld the citation.

I filed an appeal to superior court. After a hearing on the merits the judge ruled in my favor by holding that my work does not fall within the statutory definition of land surveying. Because I won for that reason, the judge had no need to rule on my affirmative defenses. The board did not appeal and I continue to do business in CA. Here is a copy of the court’s decision.
ttps://findpropertylines.com/california/decision_writ_of_mandate.pdf

When I heard about the MySitePlan lawsuit I reached out to Ryan to share my experience and toss around some ideas.

I suspect the main reason the citation was issued to Ryan was because the MySitePlan drawings include measurements from property lines. In my view, those measurements do not constitute merely repackaging existing data. Instead, those measurements constitute new data.

Ryan did not file an administrative appeal of the citation and the time for doing so has expired. Instead he paid the fine and has stopped doing work in CA.

I am not an attorney. However, I am an experienced legal researcher/analyst/writer and years ago turned down several offers of employment to do that type of work.

1. Teeth whitening case

Here is a link to the U.S. Supreme Court decision in the teeth whitening case.
ttps://www.supremecourt.gov/opinions/14pdf/13-534_19m2.pdf

The court ruled against the dental board since a majority (all?) of the board members were dentists. I suspect a majority (all?) of the members of the CA survey board are surveyors.

I do not think an affirmative defense based on this case is included in the federal complaint filed on behalf of MySitePlan. But perhaps the main reason for that is because Institute For Justice likes to litigate First Amendment issues.

[jelfelt]

and here is part 2. Remember to add a leading ‘h’ to the links.
======================
2. Vizaline case

ttps://www.vizaline.com/
Vizaline won a federal case against the Mississippi survey board based on the first amendment. This page includes a PDF download link for the decision.
ttps://law.justia.com/cases/federal/appellate-courts/ca5/19-60053/19-60053-2020-02-14.html

3. Delegation of authority – CA board vs executive officer

A decision to issue a citation and a decision as to the nature of any penalties is made by staff, not the board. Specifically, these decisions are made by the top staff person. That person holds the title “executive officer” and is a land surveyor. The board is not involved at all in these decisions. Instead, the board is only involved if the person receiving the citation files an administrative appeal. And even if such an appeal is filed, the person who received the citation has no right to appear before the board.

The legislature has delegated power to the survey board at California Business and Professions Code (BPC) 125.9 and 148. That first statute includes the phrase “fine assessed by the board”. However, the board has redelegated that task to staff. It is a well known rule of administrative law that a delegation of authority to an administrative body cannot be redelegated unless the legislature has specifically granted the power to redelegate. The CA legislature has not given the survey board the authority to let its staff assess fines.

4. Delegation of authority – abatement *or* a fine

In the above two statutes the CA legislature delegated authority to the survey board to issue citations that include either an order of abatement (cease and desist) *or* a fine. The CA board, along with many other CA boards/bureaus, has adopted regulations stating that citations can include *both* an order of abatement *and* a fine. Another well known rule of administrative law that if an administrative body acts in excess of its authority then any such action is void ab initio.

Here is a PDF I prepared with more details on this point.
ttps://findpropertylines.com/california/Citations_from_some_CA_boards_are_void.pdf

A couple of weeks ago I emailed the lead staff person for the legislature’s Committee on Accountability and Administrative Review and attached this PDF. When I followed up I was informed that my report was sent to both the house and senate committees that oversee the administrative boards. I have not heard anything else.

[BruceJoffe]

Thank you, Joseph Elfelt, for your research and the informative links. Can you provide more detail on how the judge came to that conclusion in your case? “holding that my work does not fall within the statutory definition of land surveying”

While the Building Code law you cited would appear to close the case against Ryan Crownholm, I’ll repeat something I wrote earlier in this blog:
GIS managers in two public agencies attest that the requested site plan sketches are simply the preliminary step to issuing a building permit. Subsequently, the government agency may require detailed engineering drawings or certified survey products when necessary. Potentially encroaching decisions are not made from site plan sketches or diagrams.

[jelfelt]

Here are some key parts of the case that resulted in the superior court judge ruling in my favor. One of my earlier posts included a link to the judge’s decision. The file name of that PDF is “decision_writ_of_mandate.pdf”. The page numbers below refer to that decision.

Page 6. The judge held that my right to do business in CA is a “fundamental vested right” and therefore in deciding my case the court would use “its independent judgment”. In other words, the judge would take a fresh look at the case and was not required to give any deference to the survey board or administrative law judge.

Page 7. The judge found that the citation and earlier decisions against me were based on a “mischaracterization of the evidence”.

Page 7. “However, words have meaning. By ignoring Petitioner’s disclaimers, the Board is twisting Petitioner’s statements into something they are not: a representation that he will provide “accurate” coordinates.”

At the superior court hearing I represented myself (remotely!) and therefore was able to cross examine the surveyor the board hired to be an expert witness against me. I was able to extract testimony from that witness which showed that the citation was based in part on the speculation that my clients would use the approximate coordinates I provide to mark their property corners.

Page 8. “Petitioner cannot be found guilty of a misdemeanor for violating Business and Professions Code section 8792(a) based on speculation that his clients might misuse the information at some time in the future.”

Page 8 bottom. Always read the footnotes.

[jacobm]

Bruce – thank you for your fantastic synopsis.

Joseph – I appreciate your work on the Servers list!! Have referenced it many times. And thank you for your valuable input here on this case.

Let’s keep the conversation going!

[BruceJoffe]

Joseph,
Please send me your direct contact info.
Bruce.Joffe [at] gmail

Thanks

[PLS9591]

So as a Licensed Land Surveyor I am going to jump in here as I feel the entire case has not been explained.

Although there is a question as to what constitutes Land Surveying as a professional practice, it should be noted right off the bat that Mr. Crownholm and MySitePlan.com had an opportunity for both an informal meeting and to have the case heard by an administrative judge. Both of these opportunities were not taken and as a matter of fact, just 5 days before a scheduled hearing with an administrative law judge (“ALG”), Mr. Crownholm removed his request and accepted the matters of the citation. It should also be noted that Mr. Crownholm’s claims in his Federal Case regarding constitutionality are issues that could have been heard by the ALG and did not require a filing in Federal Court.

Now on to the opinion portion of this post. I believe that Mr. Crownholm is practicing Land Surveying without a license. The practice of taking GIS Data/Layers and compiling them onto a digital or paper plan is not what is in question to me and what makes this land surveying. The part that constitutes land surveying is when he adds new data (i.e. dimensions from property lines to fixed works) to his plans. Even with a disclaimer on his maps, this is land surveying based on the law. You may say that his disclaimer is telling the property owner to be prudent in the use of his product but what I find fascinating is that in his declaration he even admits that he has the property owner “verify” the dimensions on his plans prior to submitting the set that goes to the agency for site plan review. Tells you a lot about the confidence he has in his own data/work product.

The fact is this, as a professional land surveyor my job above all else is to protect the public, and specifically protect them in regard to their property rights. Am I being a prudent surveyor who is performing my duties if I do not report someone who is telling a property owner that their property line is 15.01′ away from the corner of an existing building?

As GIS Professionals do you want Mr. Crownholm’s practice of passing the buck and denying liability by ways of a disclaimer to be tied to your profession? I know I wouldn’t want that. I would encourage you to read the Professional Land Surveyors Act (California Business and Professions Code Sections 8700-8805) and specifically focus on Sections 8726. You will notice that although slightly different, the California LS Act follows the NCEES Model Laws and Rules pretty close.

Besides that, I would encourage you to read the case documents as well as the citation that was issued by the CA Board. I would be happy to provide that to you if you need it. Feel free to message me and we can talk more.

I want to end with this. I am a young surveyor who has a great appreciation for the benefits of GIS. I use it every day in my work and I work closely with a number of GIS professionals on projects. I am very protective of my license and what it took for me to get licensed, which means I am one who goes after those that break the law. I want to work more with GIS Professionals on how we can work together to bolster both professions (something that hasn’t been done for the last 20+ years thanks to the old salty Surveyors). I look forward to more conversation regarding this case.

[jelfelt]

Hi Brian Mundy (PLS9591),

Thank you for commenting in the thread. I had suspected that the primary concern that surveyors would have is the distance measurements on the drawings. You mention that you work with GIS data so you might already know that with a few keystrokes anyone can:

1. Download parcel line data as a KMZ file from the State of California GIS server. The layer address is:
https://services.gis.ca.gov/arcgis/rest/services/Boundaries/UCD_Parcels/MapServer/0

2. Import that KMZ parcel line data into Google Earth.

3. Click on Google Earth to measure the distance (in feet or inches) between visible fixed works (corner of the house, etc) to the GIS parcel line.

It is hard to believe that in adopting the statutory definition of land surveying that the legislature intended that $1,000 fines could be levied on anyone performing the above steps.

[PLS9591]

Hello Joseph,

Good to hear from you again. I don’t disagree with you but let me put it this way. Most any car now can go over the posted speed limit on any street, highway, expressway, etc. and every time you drive over the posted speed limit there is a chance that you may receive a citation. Moral of the analogy is, just because you can doesn’t mean that you should nor is it legal to do so if you don’t get caught.

Ignorance of the law based on your intentions does not recuse you from the law. I am sure Mr. Crownholm has good intentions but the fact is he is surveying and honestly I think he got off too easy with a $1,000 fine based on the number of “site plans” he has illegally prepared.

In response to your suggestion, you aren’t wrong, anyone could do it but what do you think would happen if this was brought to court? In addition to this, I think even the layperson who could do what you are proposing, would see that when they click on the corner of the house and measure it to the line they imported, they are not clicking exactly on each point defined correct? They could take 15 measurements and end up with 15 different results.

Besides this, Mr. Crownholm’s CYA note on his maps states “This is not a legal survey, nor is it intended to be or replace one”. Can you tell me what the definition of a “legal survey” is and where I can find reference for that? In my mind, I read that note and think of it as follows “this is an illegal survey”. The CYA note is almost an admission of guilt and a loophole for him to say “well I told them it wasn’t a legal survey” like the general public knows what that means.

In addition to the note, Mr. Crownholm’s website invites reliance with statements such as:

“Guaranteed Acceptance,”

“Widely accepted by building departments and HO’s for residential permitting purposes,”

“OUR SITE PLANS ARE GREAT FOR

 Demolition permits. . . .
 Conditional Use Permits. . . .
 Construction Permits. . . .
 Sign Permits. . . .
 Residential and Commercial Site Plans. . . .
 Tree Removal Permits. . . .
 [etc.].

“SAVE TIME AND MONEY [¶] If your building department DOES NOT REQUIRE a
Surveyor, Engineer, or Architect Stamp our plans are just what you need. We have created
plans in almost every jurisdiction in the U.S. and our plans meet or exceed requirements.

If you read the California Building Code and how it defines a “site plan” do you think that Mr. Crownholm’s work product meets or exceeds the requirements for the State of California which require a site plan to be based on an “accurate boundary survey”?

I am not here to tell GIS Professionals what they can and cannot do, I would encourage some collaboration on how we can work together to better serve the public and do it in a way that is legal in the State.

I appreciate the feedback and welcome the discussion, by no means do I mean any malice or harm to anyone by the discussion, instead I want to bring to light the side of how a professional land surveyor looks at this case and practice.

[jelfelt]

Brian: “If you read the California Building Code and how it defines a “site plan” do you think that Mr. Crownholm’s work product meets or exceeds the requirements for the State of California which require a site plan to be based on an “accurate boundary survey?”

Joseph: Site plans are addressed at 2022 California Building Code, Title 24 [A] 107.2.6 which states as follows.

“The construction documents submitted with the application for permit shall be accompanied by a site plan showing to scale the size and location of new construction and existing structures on the site, distances from lot lines, the established street grades and the proposed finished grades and, as applicable, flood hazard areas, floodways, and design flood elevations; and it shall be drawn in accordance with an accurate boundary line survey. In the case of demolition, the site plan shall show construction to be demolished and the location and size of existing structures and construction that are to remain on the site or plot. The building official is authorized to waive or modify the requirement for a site plan when the application for permit is for alteration or repair or when otherwise warranted.”

Note that the last sentence allows the local official to waive the requirement for a survey. Apparently that has happened in the CA jurisdictions that accept Ryan’s drawings.

[PLS9591]

Joseph,

Exactly, as it states in the definition you provided “…shall be drawn in accordance with an accurate boundary line survey.”

The last line which pertains to the building official waiving or modifying the requirements is done by the building official, not Mr. Crownholm. The waiver would need to remove the need for ties from the boundary lines to fixed works but without those boundary lines what good does the site plan do for the building official? I guess it is ok if you are building a pool in the middle of a 4 acre property but it wouldn’t be sufficient for building a fence or a wall on the boundary line or adding on to a house to maximize the use in accordance with the setback lines.

Mr. Crownholm’s base plan provides ties from the building corners and other fixed works to the boundary lines complying with the minimum requirements pursuant to the Code. If Mr. Crownholm left off the ties then I would see a need for a citation but I do imagine a building official would return the site plan asking for the boundary lines and ties to be shown which would trigger a survey.

Does the GIS Profession approve non-professional practitioners who base their work solely from loopholes in the practice or look only for grey areas to perform their work in (Granted I think this is pretty clear cut and not in any grey area of the law)? I am not savvy enough to think of a parallel with the GIS community that would work but I would imagine it is out there.

Bryan Mundia

[Author]

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