Chapter 17.13 — COVENANTS FOR EASEMENT

This chapter provides procedures for the creation of easements through the execution and recordation of covenants, pursuant to California Government Code Sections 65870 to 65875 . (Ord. 19-408 § 1)

• A. This chapter shall apply to all development projects approved by the city, and acts independently from any other authority or method for the city to require an easement.

• B. The provisions of this chapter shall only apply when the covenant for easement is for:

  1. Parking;

  2. Ingress, egress;

  3. Emergency access;

  4. Light or air access;

  5. Landscaping;

  6. Open space purposes.

• C. At the time of recording the covenant of easement, all the real property benefited or burdened by said covenant shall be in common ownership.

• (Ord. 19-408 § 1)

Whenever a covenant of easement is required, the covenant shall be either:

• A. In a form and manner approved by the city attorney based upon the advice of the city engineer and community development director; or

• B. Whenever the city attorney prepares a covenant of easement, the city shall be entitled to reimbursement from the applicant for all associated costs.

• (Ord. 19-408 § 1)

A covenant of easement required by this chapter shall contain, at a minimum, the following elements:

• A. Identification of the owner 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 the covenant of easement and its recording by the record owner or owners to the covenant.

• C. Identification and legal description of the real property to be benefited and to be burdened by the covenant.

• 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 the easement and covenant of easement shall not merge into any other interest in real property pursuant to California Government Code Section 65871(b) .

• E. A statement that the 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 be subject to California Civil Code Section 1104 .

• F. A statement of the purpose of the easement (i.e., for access, parking, etc.).

• G. Identification of the approval, permit, or designation granted which required the covenant.

• H. A statement identifying the Lathrop Municipal Code section which sets forth the procedure for release of the covenant.

• (Ord. 19-408 § 1)

The community development director or the city manager's designee may accept an easement on behalf of the city when such an easement is required as a condition of a land use approval, permit or designation pursuant to this title.

(Ord. 19-408 § 1)

Pursuant to and in accordance with the provisions hereinafter set forth in this part, the planning commission and the city council, on appeal from a decision of the planning commission, may approve and authorize recordation of a release of a covenant of easement. (Ord. 19-408 § 1)

• A. Any person may request that the city make a determination as to whether 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 planning commission. A person shall be entitled to only one such determination in any 12 month period.

• B. The petition for release of a covenant of easement shall be filed in writing with the community development department. The application shall include a fee as set by city council resolution.

• (Ord. 19-408 § 1)

• A. Upon receipt of a completed application, the community development director shall set the matter for public hearing before the planning commission, in a manner consistent with Section 17.124.040 (Notice of public hearing).

• B. At the conclusion of the public hearing, the planning commission 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 planning commission determines that the covenant for easement is still required, the planning commission shall, by resolution, determine that the need still exists.

• C. If the planning commission finds that the covenant of easement is no longer necessary, the city shall record a release of the covenant of easement in the office of the San Joaquin County recorder's office.

• (Ord. 19-408 § 1)

• A. The planning commission action on the continuing need for the covenant of easement is subject to appeal to the city council by following the procedure set forth in Chapter 17.125 (Appeals).

B. The city council's determination shall be final and conclusive. (Ord. 19-408 § 1)