There is a saying, attributed to an ancient Chinese curse that goes, “May you live in interesting times.” Well for surveyors and the profession of Surveying, these are definitely interesting times, and may well seem cursed on occasion. The services we provide have changed much over the course of my 40-year career. I won’t belabor my point by giving a list of the things a land surveyor does. But I still feel compelled to offer a list, probably because I’m a list-maker, and that’s how I stay organized and in charge of my workload. This is a short list of the things that used to fall exclusively in our domain. GIS, construction site control, construction staking, topographic mapping, orthophotography, land development site plans. The list goes on and each item on the list could be argued. But GIS is long gone, grade setters are replacing construction stakers who (gasp!) often do their own control work, unlicensed folks with drones and scanners are producing mapping and orthophotography (sound familiar?) and plenty of planning companies, many being just sole proprietorships bereft of a licensee, have been creating site plans for property development for years. As much as these lost functions sound like mere opinion, they are facts. Interesting times, indeed.
State to state, many of these things are protected by the laws that define surveying and surveyors. Some boards of licensure are more proactive than others with respect to enforcement. It is important to remember that licensing boards are empowered to protect the public from us, and so are not necessarily our strongest ally in combatting unlicensed competition. And all, or nearly all licensing boards are under attack by a new libertarian mindset that says everyone has a right to offer a service and the marketplace is the ultimate arbiter of enforcement that will weed out malpractice through, I guess, litigation. It stands to reason that attorneys tend to support this libertarian approach because more litigation means more work for them. If a law were passed that every property needed a boundary survey, every one of us would support it, because hey, baby needs a new set of wheels, right?
By virtue of its size, population and economic clout, California tends to be the bellwether for many things in the U.S. With respect to Land Surveying, unfamiliar concepts, trends and threats often get an airing here before being common knowledge elsewhere. California surveyors tend to be vigilant, so when an issue first arises, the California Land Surveyors Association (CLSA) Forum site sees an increase in participation. Recently an issue has arisen in the Golden State, (and in the pages of the CLSA forum), that probably has implications far beyond its borders—site plans. More specifically, who is legally authorized to prepare site plans? There are 58 counties in California and numerous cities and towns, and each of those has a policy regarding what is required on a site plan. And some of these municipal requirements fall squarely within the practice of land surveying as defined by California Business and Professions Code 8726. While this may be true, it is thought by some to be debatable as to whether a license is needed and if so, it is rarely enforced by the agencies receiving these site plans.
A person, including any person employed by the state or by a city, county, or city and county within the state, practices land surveying within the meaning of this chapter who, either in a public or private capacity, does or offers to do any one or more of the following:
(b) Determines the configuration or contour of the earth s surface, or the position of fixed objects above, on, or below the surface of the earth by applying the principles of mathematics or photogrammetry.
(c) Locates, relocates, establishes, reestablishes, or retraces any property line or boundary of any parcel of land, right-of-way, easement, or alignment of those lines or boundaries.
As part of an effort to get a handle on the proliferation of site plan issues in California, a peer committee was organized by Michael Pallamary, PLS under his organization – the Land Surveyors Advisory Council on Technical Standards (which is not affiliated with CLSA). You might recognize Mr. Pallamary from all his years writing for American Surveyor.
In a long and wide-ranging telephone call with Mr. Pallamary, he revealed that the genesis of the white paper goes back some seven years and evolved out of several clashes with municipal agency staff, who take site plans in without ever seeming to grasp the bigger issue of who is responsible for the data on the plan. After the first few of these clashes, Mr. Pallamary posted to the CLSA Forum asking who else takes exception to this and long strings of commentary ensued. At some point he solicited interest in forming a committee to look deeper into the issue. This committee, made up of surveyors from across the state and from both private and public practice, gathered checklists from as many local agencies as they could and waded through them to identify commonalities of requirements and intent. Seeing that the majority of the municipal checklists required delineation of boundary or property lines and rights of way, including dimensions to those lines from certain features such as existing or proposed structures, the consensus was clear, this is work that requires input from a licensed land surveyor.
The committee then assembled all the research information, the relevant portions of state law, and a clear concise conclusion, into a ‘white paper’ covering who should be preparing and reviewing these site plans. This white paper, (available at http://bit.ly/3X8WlBL) has been deemed complete and has been distributed at the July 2022 CLSA Board of Directors meeting for circulation throughout the various chapters of CLSA. It has also been sent to the County Engineers Association of California for review. Following is the introduction taken from the paper:
Within California, there is considerable confusion as to what constitutes a “Site Plan.” Moreover, state law does not define how one is to be used and, more importantly, who can prepare one. An examination of state, county, and municipal regulations reveals no uniform definitions of a Site Plan despite its widespread and misunderstood usage. This paper aims to adopt a standardized definition and place the Site Plan in proper context as it relates to land surveying, land planning, architecture, civil engineering, construction, and land development in the State of California.
The paper goes on to discuss the definition of a site plan:
A Site Plan is a formal map that depicts the location of boundary lines of real property along with easements, encumbrances, and other features that can only be located and defined by their relationship to the site boundary. A Site Plan generally shows the location of existing and proposed features. Section 107.2.6 of the California Building Code, commonly known as the “CBC,” describes a Site Plan…
After discussion of the various types of site plans and their contents, who uses them and how, the paper asserts the following:
So long as a Site Plan includes a property boundary or easements, and shows the positional relationship of features to such boundary or easements, then the depiction of the existing boundary, easements, and features represented in the Site Plan must be prepared under the responsible charge of a Land Surveyor…. The establishment and depiction of property lines, easements, and related data is information that can only be determined by measurements made by a Land Surveyor, as defined under California law.
The white paper, intended to be circulated to local agencies as a way to make them more cognizant of the aforementioned laws, sums all of this up with a strong conclusion:
Nearly all Site Plans, with very few exceptions, include information that, as stated by codes and practice standard of care, shall be prepared by a Land Surveyor and reviewed and approved by the designated Land Surveyor of the local agency. The review of a Site Plan by an unauthorized individual or subordinate within a government entity/agency violates the Professional Land Surveyors Act. A designated Land Surveyor or their subordinate shall review a boundary survey, easement encumbrances, and title documents submitted supporting the related improvement project. Even in those cases where a Site Plan contains many proposed features drawn by other design professionals, a Land Surveyor must prepare those portions of the Site Plan that depict property boundaries and the location of easements and other existing site features dependent on property boundaries.
For some, this author included, this white paper is strong medicine – maybe too strong. How will CLSA react to the message contained in the White Paper? Will membership rise to support protecting the profession, or will indifference and apathy take the day? After all, is every single plan prepared in the state subject to the LS Act? Would this look from the outside like we are declaring war on planners? Will the local agencies embrace and enforce the arguments contained in the paper, and will the Board of Engineers, Land Surveyors and Geologists (BPELSG) be interested when a local agency squawks? It is doubtful that the licensing board in California will ever get completely behind this idea to the point of enforcing that preparation of site plans constitutes the practice of Land surveying. However, anything is possible.
Recently the California BPELSG reviewed the facts of a complaint against an unlicensed practitioner from Los Angeles who has been preparing site plans in California and beyond for quite some time. The board came to the conclusion that a violation had indeed occurred. They issued the offending company and individual both a fine and cease and desist letter. This action brought them a lawsuit, filed at the end of September 2022. This is a remarkable case not only because it is directly related to what has been discussed herein but also because the plaintiff’s argument is one of Constitutionally guaranteed rights and is the third in a series of related litigations which, taken together, present a serious threat to our profession, well beyond the borders of California.
Sites and Suits
Ryan Crownholm, the California owner/proprietor of MySitePlan.com a company that prepares site plans across the nation, brought suit against the California BPELSG. He had been cited and fined by the Board for practicing elements of Surveying without a license. Mr. Crownholm does not hold a license as a professional surveyor and as far as can be ascertained from public information, does not have a background in surveying. Since he uses only public information available from a plethora of on-line sources to prepare his work product, he does not believe he needs a surveying license to operate his business. And so, he is fighting his citation by suing the BPELSG. His legal representation is the Institute for Justice.
You may remember the Institute for Justice from their successful battle against the Oregon engineering board in 2018. There, an unlicensed individual calling himself an “Engineer” but not holding a license in that state (or any other) was directed to cease and desist doing so. The Institute made a case of his First Amendment protections, saying in effect that claiming he is an engineer is free speech and the Board’s order to stop was a violation of that right to free speech. The plaintiff won. In Oregon, previously protected titles such as Engineer and Surveyor are now not exclusively used by licensees.
Currently there is a similar (and similarly ominous) case playing itself out in the courts in North Carolina, that could also impede a licensing board’s ability to enforce state laws. In this one, the North Carolina Board of Examiners for Engineers and Surveyors ordered an unlicensed individual to stop flying his drone and providing orthorectified imagery to his clients, as the production of orthophotography is a ‘protected’ function, only allowed to licensed surveyors. The plaintiff was also showing ‘approximate’ property lines on his photography and had developed a disclaimer that said the lot lines were approximate and a land surveyor should be consulted for actual locations. His case also relies on First Amendment protections, saying the board has violated his right to free speech by making him stop producing this imagery for his clients.
The Institute for Justice, to quote from their website, “…is a nonprofit, public interest law firm whose mission is to end widespread abuses of government power and secure Constitutional rights that allow all Americans to pursue their dreams.” Similar to the Oregon and North Carolina cases, they are making a case for Mr. Crownholm, arguing that the “creation and dissemination of information are speech within the meaning of the First Amendment”. The quoted portion was taken directly from a US Supreme Court decision. The nuance that he is depicting ‘boundary lines’ with dimensions is completely lost in their legal argument. But think about it, in the hierarchy of law in this county, nothing is higher than the Constitution. By going to Defcon 1 right out of the chute, the Institute for Justice has made this a very difficult case to win for the BPELSG. Who will stand up and file Amicus briefs for this case? Probably CLSA, hopefully NSPS, maybe NCEES? It is likely that help from all three will be needed.
As this lawsuit develops, we will be watching it closely because it has significant implications for the Profession of Land Surveying. Does the right to free speech trump a Board of regulation’s duty and authority to protect the public? If so, everybody needs to move over because the Surveying bus is going to get very crowded with the great unwashed. The Oregon decision and the North Carolina Board of Dental Examiners before that are like termites gnawing through two table legs. The North Carolina Drone case is a third and the California case is a fourth. The table won’t stand much more of this.
So, as you can see, we are indeed living in interesting times.