MySitePlan Lawsuit

[PLS9591]

Joseph,

It should also be noted that most, if not all, of the sources that Mr. Crownholm pulls from for his data have a variety of disclaimers that state something of the sort:

“This Site is provided to you on an “as is” basis without any warranties of any kind, whether express or implied. To the extent permissible under applicable law, we hereby disclaim all warranties, express or implied, including but not limited to, warranties of merchantability, fitness for a particular purpose, title and non-infringement. We do not warrant that the materials on our Site will be error-free, that defects will be corrected or that our Site or its servers are free of viruses or other harmful components. We do not warrant or make any representations regarding the use of the materials on our site with respect to their accuracy or reliability. In addition, we make no representations, warranties, or guarantees that our Site will be secure, accessible continuously and without interruption.”

Would you provide dimensions to anything on a plan to the nearest 0.01′ without any verification of the data on your own based on the note above? I guess you don’t have anything to lose right?

Bryan Mundia, PLS 9591

[jelfelt]

To paraphrase, the building code requires site plans to have measurements that are made by a surveyor unless a waiver is granted. I am not seeing any language in the building code that limits the scope of a waiver or that requires any specific process for granting a waiver.
Seems to me that a waiver could allow site plans to be accepted that contained measurements that are made by home owners, landscapers, builders, Ryan’s company, etc. Which, of course, is exactly the widespread practice that has been going on for many years.
Certainly the local building official would always have the discretion to require a survey if necessary.

[PLS9591]

Joseph,

That isn’t what I am saying. What I am saying is that a site plan, unless the requirement is waived or modified by the building official, must be based on an “accurate boundary line survey”. Now, the building code does not define what an “accurate boundary line survey” actually is but one should take caution in showing their measurements to 0.01′ with only using GIS Data that hasn’t been verified or warranted free from defects or errors, wouldn’t you agree?

I haven’t even gotten into the thought of him taking GIS data based from 1991.35 epoch and merging that with data on 2017.50 epoch. I know that you are in Washington and might not realize this but between those two epochs there is an approximate 3.0′ shift horizontally due to movement between the Pacific and North American Plates here in California.

If you don’t have any validation as to where the data came from, you could potentially have GIS Parcel Boundaries on one epoch and Aerial Photogrammetry on another and an approximate 3.0′ shift Northwesterly but since you didn’t perform a field survey, or heck even visit the site, you would ever know anything is wrong. Can you see where the knowledge of a professional surveyor is required to show the parcel lines in conjunction with fixed works on the ground yet? I know that there are a number of GISP folks out there that understand epochs and datum shifts but a general contractor who realistically has very little GIS knowledge and background is doing this work by using folks overseas to compile the data. I would suggest you read Mr. Crownholm’s Declaration for the case, it is eye opening to both professions in my opinion.

[jelfelt]

Yes, I certainly agree. Showing distances to 0.01 feet on Ryan’s drawings is really strange. But that does not negate the fact that the building code certainly seems to let the local officials grant waivers and accept site plans with measurements that are not made by surveyors.

[PLS9591]

Joseph,

But what you don’t seem to be getting is that the building officials can either waive the site plan entirely or modify the definition of a site plan pursuant to the California Building Code. The creator of the map cannot call it a “site plan” and then say that they created the site plan based on a non-existent waiver.

If I was to call a plat a “boundary survey” you would expect it to be exactly that by definition correct? How about a “topographic survey”? There are certain criteria that allow you to call your map what it is. The problem is that without being able to call his plats “site plans”, Mr. Crownholm doesn’t have a viable business. Who is going to pay him for a “site exhibit” or a “site improvement map” or some other variety of the same so he stays away from a “site plan”?

It is similar to your case, the expert didn’t do a great job in regards to the nature of your complaint. Initially, the complaint was regarding your statement of accuracy, that also falls under the definition of land surveying pursuant to California Law. When I filed that complaint that is what it was about, not that you were providing a sketch with a line a calling out the boundary corners pursuant to a record map and overlaying it on a aerial photo. It was in fact that you were telling people your coordinates were +/- whatever they were. The problem is that the layperson doesn’t know the difference between a Lead & Tack and a Spike & Washer or a 2″ Iron Pipe or a 1 1/2″ Iron Pipe. You can see that if you told someone that their corner was within a certain range and they march up to that location only to find an old 2″ fence post within the stated accuracy range you provided, that they may rely on the combination of your map along with the evidence to make an incorrect determination that it is their boundary corner when in fact it is not.

Now take that and fast forward through the beginning of a trial. A competent attorney would require a survey but not all would do so based on the evidence provided by the client. This in turn could cost the client (the general public) a substantial amount of money before it is realized that they are incorrect. Hypothetically speaking of course.

[jelfelt]

Good Morning Bryan,
If I am remembering correctly when you and I were last in touch you had changed careers to something outside of land surveying. Congratulations on returning to the survey world and obtaining your license. I realize that took a vast amount of work and dedication on your part.
In Ryan’s case the court has already held a hearing on his motion for a preliminary injunction. Today the court is holding a hearing on the board’s motion to dismiss. I am guessing that the court will issue an order addressing both motions although that might take a few days.
Since Ryan did not appeal the citation his case is not about whether his work falls within the statutory definition of land surveying. Instead his case offers several theories for why he has a constitutional right to do what he is doing. Of course I am not an attorney and this is just my lay person 30,000 foot view of his case.

[PLS9591]

Good Morning Joseph,

You are correct, I got back into surveying about 3 years ago and immediately went and took my exam for my license.

I understand that the court held a hearing on 12/6/2022 for the Preliminary Injunction that I unfortunately was not able to attend. My understanding is that the date for the Motion to Dismiss was slated for 1/10/2023. Is there a date that I am missing in regard to the hearings that isn’t showing up on the Judge’s calendar?

I also understand the thought process behind his case and that it is a question of constitutional rights versus the legality of his work product, hence while the case was filed in Federal Court. I too am not an attorney, and I am just trying to tread water like you in understanding and observing what this case is really going to argue in regard to constitutional rights.

[jelfelt]

My bad. You are right. Next hearing is in January.

[jacobm]

Update from Bruce Joffe (Jan 11)
_______________________________________

Dear Colleagues,

The lawyers for MySitePlan (IJ.org) filed a request for temporary injunction of the CA Registration Board’s cease-and-desist order. The judge decided in favor of the Board. The attorneys will appeal. This is not the final decision on the issue (were MySitePlan’s actions the practice of survey?) but many of the same arguments were raised, and they did not persuade the judge.

We can help the appeal by signing on to an Amicus Curiae brief that explains some of the technical aspects and distinctions of surveying and GIS, including:

1 – What is GIS mapping? How does it differ from survey mapping?
2 – What is the value of geospatial information? How is GIS-based information useful to the public?
3 – What is at stake if current Board position is upheld?
4 – Explaining the ambiguities in the CA state law

I will draft an Amicus brief, and I welcome help from a few interested people. Please let me know if you want to volunteer some time and effort.

FYI, attached is my analysis of the arguments and counter-arguments, after reading the initial Motion (by IJ.org) to remove the Board’s cease-and-desist order, and the Board’s Opposition Brief response. Disclaimer: It is not complete, and I am not a lawyer.

I have uploaded all court documents to Dropbox. You are welcome to see them and download.
Please send me any analysis or opinions (or questions) you have about this case after reading.
https://www.dropbox.com/sh/iorcuhi2zlm676g/AABG5CQr3Nhl5Juh1lIgiKKoa?dl=0

One important issue is the vagueness of the words “establish”, “reestablish”, “locate”, “relocate”, “retrace”, as their technical definitions pertain to defining the practice of survey. The Miriam-Webster definition is in fact so broad that it could be interpreted to pertain to any lines drawn on a map. Will the Licensed Surveyors who are reading this please send me your understanding of the technical meaning of these words? If possible, please include a source, but if no source, just affirm that “in your professional judgment” this is what the words mean. Thank you.

The Board’s actions are in response to a complaint filed March 3, 2021 by Bryan Mundia, a licensed surveyor working for D.Woolley & Associates. Apparently, he does not recognize a distinction between a preliminary site plan sketch (drawing) which is allowed by most CA building departments, and a construction document site plan that specifically depicts the measured distances between authoritative property line locations and buildings or other fixed works. The Board, likewise, does not make the distinction and classifies all site plans that depict distances between buildings, fixed works and property lines as survey products, whether or not they are stamped or marked with a disclaimer such as, “this is not a survey product.”

Richard Moore, Executive Officer of the California Board for Professional Engineers, Land Surveyors and Geologists,stated, “The critical distinction between drafting, which does not require a license, and land surveying, which does, is that land surveying deals with the relative positions of fixed works (such as buildings or fences) or natural objects (topographic features, contours, elevations, etc.) in relationship to property lines. Land surveyors are rendering a professional opinion as to the spatial relationship between fixed works or natural objects and the property line.” (EFC 13-1, pp.15 L5)

In the Board’s opinion, this includes any site plan, not just those intended to guide actual construction, which should be differentiated from preliminary planning purposes. (EC-13 p.28 L6)

Subsequently, the Board filed similar Orders of Abatement to cease-and-desist against several other companies doing similar site plan drawings, including:

GVS Drafting & Design (10-28-21)
GetASitePlan (12-28-21)
USA Site Plans (12-28-21)
24HPlans (12-28-21)

If all site plans were to be considered survey products, then surveyors would have to supervise all kinds of documents that they do not generally engage with, including:

Demolition Permits
Conditional Use Permits
Sign Permits
Tree Removal Permits
Landscaping Plans

Doggedly,
Bruce

[PLS9591]

So as a Professional Surveyor I will chime in on this and what I think about what has been said above. I welcome anyone to respond and have an open dialogue about the subject.

First, lets define what is a site plan at least here in the State of California. Pursuant to Section 107.2.6 of the California Building Code, commonly known as the “CBC”, a Site Plan is defined 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 where the application for permit is for alteration or repair or
where otherwise warranted.”

According to this definition a Site Plan shall be drawn in accordance with an accurate boundary line survey. According to Miriam-Webster, accurate is defined as “free from error especially as the result of care”. Black’s Law Dictionary defines accurate as

“The lack of error in accounting. All the values are deemed correct. The range of possible error in engineering. The amount of difference between predicted performance and actual performance. The closeness an instrument measures.”

Taking this into consideration please think of the following. If a site plan shall be based from an accurate boundary line survey, can someone utilize data from a GIS source to determine the accurate locations of boundary lines? Most agency GIS websites and sources have a distinct disclaimer stating that the data is “as-is” and there is no guarantee to its accuracy or correctness. Can you tell me that a measurement is good to the nearest 0.01′ between a building corner and a property/boundary line only using data from a GIS source?

In addition to this, Mr. Crownholm has claimed through his Declaration that he doesn’t use just one source for his data, instead, he uses multiple sources to compile the data for his site plan. As GIS Professionals, is there an understanding of Epochs and how they effect the location of data shown on a map? If not, let me try to explain this to you. In California, we sit between two tectonic plates, The North American Plate and the Pacific Plate. The joining line between these two plates is the San Andreas Fault. The State of California has significant movement between these two plates. As a matter of fact, there are a few articles written on the effect of plate tectonics that you can easily find by just using Google to search “understanding epochs”. One particular article written has tracked the movement of just one of our many Continuously Operating GPS Reference Stations in Orange County and found that in 26 years, that same point has moved roughly 3 feet! The difficult thing about this is that it is not a consistent movement year to year, it varies substantially.

I myself have not found a GIS database or website that explains to you which datum & epoch their data is derived from. So lets take an example, if one GIS Source that you are using to determine boundary line locations is using NAD83, 1991.35 Epoch for the derivation of data and another source you are using for aerial photogrammetry to trace buildings and improvements is using NAD83, 2017.50 Epoch you will have an approximate 3′ shift. Do you think that the layman understands this at all?

Now lets get into some of the questions asked.

1 – What is GIS mapping? How does it differ from survey mapping?
To me as Professional Land Surveyor, GIS Mapping is the derivation and compilation of recorded data placed into a database that can be easily accessed and utilized for reference purposes. It differs from survey mapping in that GIS mapping does not contain a field measurement component. GIS Mapping rarely, if ever, takes into account any measurements performed on the ground.

2 – What is the value of geospatial information? How is GIS-based information useful to the public?
The value of geospatial information is in its ease of use, access and manipulation of data for a number of purposes. It is useful to the public as a reference and a way for the public to obtain organized data that is derived from a variety of measured resources.

3 – What is at stake if current Board position is upheld?
This is my own opinion but I don’t think there is any danger of GIS Professionals being turned into the board for compiling data and using it for reference purposes. My thought is that GIS Professionals will be in trouble if they then take that data and begin to use it to create maps and plats that show dimensions from fixed works to boundary lines.

Now lastly lets get into the definition of the board regarding what is the practice of land surveying. It should be noted that this definition is derived from a National Standard from the NCEES Model Law and Model Rules. In regards to the words the words “establish”, “reestablish”, “locate”, “relocate”, “retrace”, this means that if you shown a dimension on a plan from a building corner to a property/boundary line you are establishing where that line is located in relationship to the building corner. I as the homeowner could take those dimensions shown on your plan and with a tape measure, then place that line on the ground.

Professional Land Surveyors are the only profession who should be dealing with boundary/property lines. We have specific knowledge on how to establish or re-establish these lines. We are rigorously tested on this in order to get our license. I cannot say the same about GIS Professionals. How many GIS Professionals know the intricacies of Junior/Senior property rights or know when to use proportionate measurement to re-establish a boundary line? How many know how to pull a chain of title and understand what that even means? Any technician can read a deed or legal description and draw out the lines described but a Profession Land Surveyor is the one who determines how those boundary/deed/property lines relate to the fixed works on the ground.

I apologize for being so long winded but it is necessary for something like this. I welcome anyone to text me at 714-396-1704 and we can set up a call to discuss further. My email is bryanmundiapls@gmail.com if you are more interested in written correspondence.

Let me end by saying that I am of the thought that as a Professional Land Surveyor I truly value what GIS Professionals bring to the table. I utilize the resources you work hard on preparing every day and I am grateful for what they provide to me. I couldn’t be as efficient at my job with you. I want to work together with GIS Professions and educate them on what Land Surveying is and in turn I hope they can teach me more about GIS. There is plenty of room in the sandbox and together we are stronger in building a relationship that is beneficial for both professions.

[jacobm]

Update from Bruce Joffe (Jan 27)
_________________________________________

Dear Colleagues,

As you know, the CA Board for Professional Engineers, Land Surveyors, and Geologists issued a cease-and-desist order to MySitePlan.com, plus a $1,000 fine. MSP is suing the Board to rescind the order and recognize its right to create site plans from publicly available GIS data.

Today, the Court sided with the Board’s request to dismiss the case.

MSP’s lawyers will appeal. They believe they will ultimately prevail because the Board’s over-reach (all site plans need to be drawn by a licensed surveyor, regardless of purpose or authoritativeness) violates the First Amendment.

You can download the latest Court filings from DropBox at:

https://www.dropbox.com/sh/iorcuhi2zlm676g/AABG5CQr3Nhl5Juh1lIgiKKoa?dl=0

We will be writing an Amicus Brief to support their appeal, and I’ll be asking you to review it and sign it. Hopefully, your professional organizations and colleagues will want to sign it also.

Doggedly,

Bruce

[Author]

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