Chowchilla Municipal Code Ch. 17.38 Creation of Easement by Covenant for Easement

A. Purpose. The purpose of this chapter is to allow for the creation of easements through the imposition of covenants.

B. Authority. This chapter is adopted pursuant to Government Code [Section] 65870 allowing for the imposition of covenants pursuant to Article 2.7 of Title 7 of Division 1 of Chapter 4 of the Government Code.

(Ord. No. 492-18, § 2(Att. A), 12-11-2018)

In addition to any other method for creation of an easement, an easement may be created by a recorded covenant of easement made by an owner of real property to the city. An easement created pursuant to this section may be created for parking, ingress, egress, emergency access, light and air spaces, landscaping, or open space purposes, or any other purpose permitted by Article 2.7 of Title 7 of Division 1 of Chapter 4 of the Government Code.

(Ord. No. 492-18, § 2(Att. A), 12-11-2018)

At the time of recording of the covenant of easement, all the real property benefitted or burdened by the covenant shall be in common ownership. The covenant shall be effective when recorded and shall act as an easement pursuant to Chapter 3 (commencing with Section 801) of Title 2 of Part 2 of Division 2 of the Civil Code, except that it shall not merge into any other interest in the real property. Section 1104 of the Civil Code shall be applicable to the conveyance of the affected real property.

(Ord. No. 492-18, § 2(Att. A), 12-11-2018)

A covenant of easement recorded pursuant to this chapter shall be recorded in the county where all or a portion of the restricted properly is located and shall contain the following:

A. Legal descriptions of the real property subject to the easement and the real property benefited by the easement; and

B. An identification of the approval, permit, or designation granted which relied upon or required the covenant; and

C. A provision describing how the easement shall be maintained; and

D. A provision that the burdens of the covenant shall be binding upon, and the benefits of the covenant shall inure to, all successors in interest to the real property.

(Ord. No. 492-18, § 2(Att. A), 12-11-2018)

A covenant executed pursuant to this chapter shall be enforced by the successors in interest to the real property benefitted by the covenant.

(Ord. No. 492-18, § 2(Att. A), 12-11-2018)

The covenant of easement shall be executed and acknowledged by the owner of the real property.

(Ord. No. 492-18, § 2(Att. A), 12-11-2018)

A. Release of Covenant. A covenant for easement under this chapter may be released pursuant to the procedures set forth in this chapter.

B. Procedure. In accordance with Government Code 65874, the procedure for release of covenant for easement shall be as follows:

1. Public Hearing. A request for a release of covenant under this chapter shall require a public hearing by the council.

2. Any person may file a written request for a public hearing for the release of a covenant of easement with the city clerk. Said request shall contain the following:

a. A conformed copy of the recorded easement; and

b. Legal descriptions of the real property benefitted and the real property burdened by the easement; and

c. The fee required pursuant to this chapter.

C. Upon receipt of a completed request for hearing and payment of the fee, the city clerk shall notify the council of the request for hearing.

D. Upon notification and receipt of the request for a hearing for the release of covenant, the council shall set a date and time for a public hearing regarding the release of a covenant of easement recorded pursuant to this chapter.

E. At the conclusion of the public hearing, the council shall determine and make a finding by resolution whether or not the restriction of the property is necessary to achieve the land use goals of the city. If the council determines that the restriction of the property is no longer necessary to achieve the land use goals of the city, a release of the covenant shall be recorded by the city in the county where the restricted property is located.

(Ord. No. 492-18, § 2(Att. A), 12-11-2018)

The council may impose a fee to recover the reasonable costs of processing a release of covenant from those persons requesting the release pursuant to Section 17.38.070.

(Ord. No. 492-18, § 2(Att. A), 12-11-2018)