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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

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