ALJDEC

99F-C96124-BTR · Board of Technical Registration · 1998-08-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 5, 1998 APPEARANCES: The State Board of Technical Registration (“Board”) was represented by Assistant Attorney General Gretchen Aliabadi. Lawrence J. Wetstein (“Respondent”) did not appear. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________

The commencement of the scheduled hearing was delayed approximately thirty minutes to allow for the late arrival of the Respondent. Counsel for the Board and its witnesses were timely present for the hearing. The hearing was then convened and the hearing conducted without the presence of the Respondent or an attorney authorized to represent him. Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT

1. Respondent, Land Surveyor No. 17558, was granted registration with the Board on September 13, 1984 and his registration will expire on December 31, 1998, unless renewed. 2. Respondent’s Land Survey Registration No. 17558 is on active status and not on retirement status. 3. The Board issued a Complaint and Notice of Hearing which advised that a hearing would be convened before the Office of Administrative Hearings, a separate and independent state agency, on a complaint issued by the Board alleging that Respondent had violated specified provisions of state statutes involving his land survey of the following described lands:

PARCEL NO. 4: That part of Lot 11, STEPHEN SUBDIVISION, according to the plat of record in the office of Maricopa County Recorder (“MCR”), in Book 11 of Maps, Page 1 (“MCR 11- 1”), described as follows: BEGINNING at the Northeast corner of said Lot 11; thence West 146 feet; thence South 400 feet; thence East 144 feet; thence North 400 feet to the POINT OF BEGINNING; EXCEPT therefrom the North 270 feet and the East 8 feet thereof. ( hereinafter referred to as “Parcel No. 4”).

4. The Stephen Subdivision is a portion of Tract 13 of Section 16, Township North, Range 3 East, Maricopa County, Arizona. 5. On Wednesday, May 27, 1998, at approximately 4:40 p.m., Mark E. Naugle, acting as the Board’s Chief Enforcement Officer, personally delivered a true copy of the Complaint and Notice of Hearing for this matter to Respondent at 2009 North 51st Way, Phoenix, Arizona. It is determined that Respondent had proper notice of the allegations being made against him by the Board and notice of the time, place and location of the scheduled hearing. 6. On or about April 7, 1996, Respondent performed a survey and prepared a survey plat map which included Parcel No. 4, as well as Parcels No. 1, 2, and 5. In his result of survey, Respondent certified under seal “… that (Respondent’s) map or plat and the survey on which it is based were made in accordance with the ‘Minimum Standard Detail Requirements for Land Title Surveys’ jointly adopted by ATA and ACSM IN 1962. There are no other easements or rights-of-way in use or in evidence over or under the subject property, nor any encroachments onto, contiguous property nor any encroachments of improvements from adjoining property onto subject property, other than shown on said plat and provided by said Title Report[1]”. (emphasis added). 7. It is determined that a plat recorded in the office of the Maricopa County Recorder is superior to a county assessor’s plat map or a City of Phoenix quarter section map for land surveying purposes. A recorded plat gives public notice of land surveys for a described property. A county assessor’s plat map is a reference document which indicates tax parcel numbers for use in tax assessments. The assessor’s plat map is not an accurate land survey. The City of Phoenix quarter section map is not a land survey product but is used by the municipality to identify the City’s property and for identification of property addresses. 8. When Respondent and his employee began their survey they had difficulty in determining the location of the Northeast corner of Lot 11, which is the starting point for surveying Parcel No. 4. 9. Respondent relied upon the legal description of the Parcel No. 4 contained in a title report, Order No. G363,674, issued by Commonwealth Land Title Insurance Company (“Commonwealth”) to determine the true location of the Northeast corner of Lot 11. Respondent consulted with the title examiner who authored that title report in an attempt to determine the true location. The title examiner, who was not a registered land surveyor, advised Respondent that the Northeast corner of Lot 11 was “…approximately 17 feet short of the Gibson Land centerline dimension shown on the Stephen Subdivision plat. Also note the north-south dimensions from Gibson Lane R/W (right-of-way) to and including Parcel No. 4 on the enclosed County Assessors Plat and the City of Phoenix ¼ Section plat”[2] . 10. When Respondent and his employee were in the field to determine the location of the Northeast corner of Lot 11, they found a 1” iron pipe in pothole located in the center of Gibson Lane. Rather than use that monument as the location of the Northeast corner of Lot 11, Respondent relied upon his review of the Stephen Subdivision plat MCR 11-1 and his discussions with Commonwealth’s title examiner to conclude instead that the actual location was a point approximately 17’ Southwest of the 1” iron pipe monument. 11. After Respondent determined what he believed to be the location of the Northeast corner of Lot 11, he then proceeded to perform field measurements to survey the boundaries of Parcel No. 4. 12. At the time of Respondent’s survey, Parcel No. 4 had a 6’ high fence running east to west across the parcel located approximately 415’ South of the center of Gibson Lane. Respondent’s land survey determined that the Southern boundary for Parcel No. 4 was approximately 17’ South of the existing fence location. 13. The recorded Stephen Subdivision plat, MCR 11-1, was prepared on February 20- 22, 1922, by Harry E. Jones, registered surveyor. The recorded plat does not specifically identify the location of the Northeast corner of Lot 11 by either symbol or notation, but does show a centerline down Gibson Lane and Hamilton Road, the latter being a roadway running in a North/South direction along the Eastern boundary of Lot 11. There are notations on the recorded plat indicating a distance of 17’ between the centerline of those roads and the edges of the roads. 14. Freeman Place is a subdivision of Lot 13, Stephen Subdivision, part of the Southwest Quarter of the Southeast Quarter (SW/4SE/4) of Section 16, Township 1 North, Range 3 East, Maricopa County, Arizona. The Freeman Place plat is recorded at Maricopa County Recorder, Map 43, page 50 (“MCR 43-50”). The survey of Freeman Place plat was done by Harry E. Jones, registered surveyor on July 12, 1948. Lot 13 is located two lots to the West of Lot 11 and is bordered by Gibson Lane on the North. The recorded Freeman Place plat MCR 43-50 contains both symbols and notations indicating that the Northeast and Northwest corners of Lot 13 are fixed points in the center of Gibson Lane approximately 17’ South of the North side of the road. The recorded plat MCR 43-50 shows that the portion of Gibson Lane between the Northeast corner and Northwest corner of Lot 13 widens from a standard width of 34’ to a width of 42’, the added footage being to the South, for a distance of approximately 231.47’. 15. Dream Homes is a subdivision of Lots 8 and 10 of Stephen Subdivision, being part of the Southeast Quarter of Section 16, Township 11 North, Range 3 East, Maricopa County, Arizona. The plat is recorded in the Maracopa County Records at Map 44, Page 6 (“MCR 44-6”). Lots 8 and 10 of Stephen Subdivision lie directly East of Lot 11 separated by a roadway. Dream Homes plat MCR 44-6 contains notations which indicate that the Northwest corner of Lot 8 and the Southwest corner of Lot 10 are located 17’ East of the West edge of 14th Street, which was named Hamilton Road on Stephen Subdivision plat MCR 11-1. Dream Homes plat MCR 44-6 identifies 14th Street as measuring approximately 43’ in width. 16. The weight of credible and reliable evidence of record supports the finding that the 1” iron pipe in pothole located by Respondent in the center of Gibson Lane is the monument marking the location of the Northeast corner of Lot 11. The recorded plats for Stephen Subdivision MCR 11-1, Freeman Place Subdivision MCR 43-50 and Dream Homes Subdivision MCR 44-6 give sufficient public notice that the lot boundaries are in the middle of the roadways identified on those recorded plats. 17. Respondent’s result of survey is determined to have incorrectly located the Northeast corner of Lot 11 and to have used the incorrect location as a starting point for performing field measurements to identify the boundaries of Parcel No. 4. 18. It is determined that Respondent failed to properly research all of the available recorded plats of adjacent subdivisions that would have aided Respondent in determining the proper location of the Northeast corner of Lot 11. Respondent had a duty to investigate the recorded plats described in Finding No. 16 but instead elected to rely on inferior and unreliable data sources. 19. Respondent’s result of survey has material discrepancies between controlling monuments with the Stephen Subdivision. Respondent’s incorrect location for the Northeast corner of Lot 11 resulted in the legal description for Parcel No. 4 being in error by 17’ to the South and 17’ to the West. Such discrepancies are determined to have a material affect on the boundaries of Parcel No. 4 and the properties surrounding it. 20. It is uncontroverted that Respondent did not record his result of survey with the Maricopa County Recorder as required.

CONCLUSIONS OF LAW

1. The complaint against Respondent in this matter was issued by the Board pursuant to A.R.S. §§ 32-101 through -150, A.A.C. R4-30-124 and A.R.S. §§ 41-1061 through -1066, which authorizes the Board to impose disciplinary action against registrants for violations of the Board’s statutes and/or rules. 2. Respondent received proper notice from the Board of the scheduled hearing in this matter to determine whether disciplinary action should be imposed against him. 3. Pursuant to A.R.S. §41-1092.01, the hearing in this matter was conducted by the Office of Administrative Hearings, a separate State agency. 4. The evidence of record is adequate to establish that Respondent violated the provisions of A.R.S. §32-128(B)(4) by violating A.A.C. R4-30- 301(A)(7) in that Respondent failed to apply technical knowledge and skill which would be applied by other qualified registrants who practice surveying in the same area and at the same time performed the surveying of the said lands. 5. The evidence of record is adequate to establish that Respondent violated the provisions of A.R.S. § 32-128(B)(4) by violating A.A.C. R4-30- 301(A)(5) in that Respondent failed to comply with the requirements set forth in A.R.S. § 33-105(A)(1) and (2) by virtue of his result of survey containing material discrepancies with controlling monuments within the Stephen Subdivision and his failure to record his result of survey with the Maricopa County Recorder. 6. Respondent’s material discrepancies between controlling monuments within the Stephen Subdivision contained in his result of survey and his failure to record his result of survey with the Maricopa County Recorder constitute violations of A.R.S. § 32-128(B)(4) by violating A.A.C. R4-30- 301 (A)(17) by failing to comply with the “Minimum Standards for Arizona Land Boundary Surveys”, specifically minimum standard 10.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the Board of Technical Registration impose the following disciplinary penalties against Respondent:

1. An administrative fine in the amount of $1,000.00. 2. Peer review of Respondent’s next five surveys, as approved by the Board, performed within the State of Arizona unlimited by time. 3. An administrative reprimand.

Done this day, August 6, 1998.

_________________________________ BRIAN BRENDAN TULLY Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 1998, to:

Mr. Ronald W. Dalrymple, Executive Director Board of Technical Registration 1951 West Camelback, #250 Phoenix, AZ 85015 ATTN: Mark E. Naugle

By _______________________________

----------------------- [1] Respondent’s result of survey was made with the benefit of Preliminary Memorandum Report Order No. G363,674 dated March 20, 1986 by Commonwealth Land Title Insurance Company. [2] See Exhibit 6.

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Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826