[jelfelt]

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

[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.

[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.

[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.

[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.

[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.

[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.

[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.

[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]

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]

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.

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