Article XI — Covenant of Easement

The city may require certain easements to be recorded over properties currently held in common ownership for the benefit of future owners. This chapter allows for the recording of a covenant by the current owner to dedicate easements with the future transfer of said property. This chapter shall apply to all development projects approved by the city, its council, planning commission, officers, and employees and acts independently from any other authority or method for the city to require an easement. The provisions of this chapter shall only apply when the covenant of easement is for parking; ingress, egress, or emergency access; light and/or air access; signage; landscaping; and/or open space purposes. The provisions of this

chapter shall only apply when all the real property benefited or burdened by said covenant is in common ownership at the time of recording the covenant of easement. This chapter is adopted pursuant to Government Code Sections 65870 et seq.

(Ord. No. 1037, § 2, 11-14-2017)

Whenever the approving authority determines, independently or based upon the recommendation of city staff, that a covenant of easement is needed for one (1) or more of the purposes identified in Section 16.24.370 (General), the approval, permit, or designation shall not become effective unless or until said covenant of easement is recorded. Whenever a covenant of easement is required herein, the covenant shall either be in a form and manner approved by the city attorney based upon the advice of the city engineer and director, executable by the city engineer on behalf of the city; or be prepared by the city attorney, executable by the city engineer on behalf of the city. Whenever the city attorney prepares a covenant of easement, the city shall be entitled to reimbursement from the applicant for the costs associated therewith.

(Ord. No. 1037, § 2, 11-14-2017)

A covenant of easement prepared pursuant to this chapter shall contain, at a minimum, the following elements:

A.

Identification of the owner and/or owners of the real property to be burdened, including a statement that both the burdened and benefited parcels are under common ownership;

B.

A consent to said covenant of easement and the recording thereof by the record owner and/or owners to the covenant;

C.

Identification of the real property to be benefited by said covenant, including a legal description of the same;

D.

A statement that said covenant shall act as an easement pursuant to Chapter 3 (commencing with Section 801) of Title 2 of Part 2 of Division 2 of the California Civil Code, including an express statement that said easement and covenant of easement shall not merge into any other interest in real property pursuant to California Government Code Section 65 871(b);

E.

State that said covenant of easement shall run with the land, be binding upon all successors in interest to the burdened real property, inure to all successors in interest to the real property benefited, and shall be

subject to California Civil Code Section 1104;

F.

Identify the approval, permit, or designation granted, which required the covenant;

G.

A statement identifying the code section, which sets forth the procedure for release of the covenant;

H.

Identification of the city as a third party beneficiary;

I.

Provisions concerning maintenance and the scope of use of the easement; and

J.

An appropriate section for execution of said covenant of easement by the record owner, or owners of the subject real property.

(Ord. No. 1037, § 2, 11-14-2017)

Any person may request that the city make a determination as to whether or not the restriction imposed by the covenant of easement is still necessary to achieve the city's land use goals. The determination of the need for the covenant of easement shall be made by the approving authority that took final action on the original application. A person shall be entitled to only one (1) such determination in any twelve (12) month period as indicated. To obtain a determination mentioned above, a "request for determination" application shall be made and filed with the city clerk. Said application shall include a fee as set by resolution of the council. Upon receipt of a completed application, the city clerk shall set the matter for public hearing before the approving authority and cause notice thereof to be given pursuant to Government Code Section 65090, and a copy of the notice shall be mailed to the record property owner or owners, as shown on the tax assessor's latest equalized roll if other than the applicant, and to all record property owners within one thousand (1,000) feet of the property.

At the conclusion of the public hearing, the approving authority shall determine and make a finding, based upon substantial evidence in the record, whether or not the restriction imposed by the covenant of easement is still necessary to achieve the land use goals of the city. If the approving authority determines that the covenant for easement is still required, the approving authority shall, by resolution, determine that the need still exists. If the approving authority finds that the covenant of easement is no longer necessary, the approving authority shall, by resolution, make the determination and finding and direct the city attorney to prepare a release thereof and transmit the same to the city clerk for recording. The approving authority's determination shall be final and conclusive.

(Ord. No. 1037, § 2, 11-14-2017)

Chapter 16.28 - PLAN CHECKING AND INSPECTION FEES