Chapter 18.40 — COVENANT OF EASEMENT

The method of creation of easements authorized by this chapter shall be in addition to any other method allowed by law. (Ord. 2842-07 § 1)

An easement may be created pursuant to this chapter by a recorded covenant of easement made by an owner of real property to the city, in accordance with the procedures set forth in this chapter. (Ord. 2842-07 § 1)

An easement created pursuant to this chapter may be for one or more of the following purposes:

(a) Parking.

(b) Ingress and egress.

(c) Emergency access.

(d) Light and air access.

(e) Landscaping.

(f) Open space.

(g) Access to and/or operation and maintenance of a storm water treatment measure.

(h) Construction, operation and maintenance of utilities.

(i) Sidewalks and pathways. (Ord. 2842-07 § 1)

At the time of recording of the covenant of easement, all the real property benefited or burdened thereunder shall be in common ownership. (Ord. 2842-07 § 1)

A covenant of easement recorded pursuant to this chapter shall be executed by the owner of the burdened property and shall include:

(a) A legal description of the real property to be subject to the easement;

(b) A legal description of the real property to be benefited by the easement;

(c) Identification of the city approval, permit or designation which was granted in reliance upon recordation of the covenant, or for which recordation of the covenant is or was a requirement; and

(d) A description of the purpose(s) of the easement. (Ord. 2842-07 § 1)

The director of community development, or designee, may accept an easement as described in this chapter 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. 2842-07 § 1)

The covenant of easement shall be recorded in the county recorder's office. A copy of the recorded document shall be provided to the director of community development, or designee. (Ord. 2842-07 § 1)

(a) The covenant of easement shall be effective when recorded and shall act as an easement pursuant to Chapter 3 (commencing with Section 801) of Title 2, Part 2, Division 2 of the Civil Code, except that it shall not merge into any other interest in the real property.

(b) From and after the time of its recordation, the covenant shall impart notice thereof to all persons to the extent afforded by the recording laws of this state. (Ord. 2842-07 § 1)

Upon recordation, the burdens of the covenant shall be binding upon, and the benefits shall inure to, all successors in interest to the affected real property. Nothing in this chapter shall create in any person, other than the city and the owner of real property benefited or burdened by the covenant, standing to enforce or to challenge the covenant or any amendment thereto or release therefrom. (Ord. 2842-07 § 1)

Pursuant to and in accordance with the provisions hereinafter set forth in this chapter, 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. 2842-07 § 1)

A petition for release of a covenant of easement may be made by any person whether or not that person has title to the real property, and shall be filed in writing with the director of public works, or designee, on a form furnished by the director of public works, or designee. The form of the

petition and the information required to be set forth in them shall be prescribed by the director of public works, or designee. The director of public works, or designee, shall not accept any such petition for filing unless:

(a) All information and data is set forth and shown as required by the form;

(b) The petition is verified by the party making the petition; and

(c) The applicable filing fee has been paid. (Ord. 2842-07 § 1)

The fee for filing a petition for release of a covenant of easement pursuant to this chapter shall be as set forth in the schedule of fees established by resolution of the council. (Ord. 2842-07 § 1)

(a) Upon filing of such petition, payment of filing fees, and acceptance of such petition as complete by the director of community development, or designee, the director, or designee, shall set a date for the public hearing by the planning commission. The date of hearing shall be not less than twenty nor more than sixty days after the date the application was accepted as complete by the director of community development, or designee. Notice shall be provided in accordance with Section 19.98.040(c).

(b) The director of community development, or designee, shall provide a report and recommendation to the commission. In addition thereto, the director, or designee, shall file with the commission at its hearing all papers, documents, and exhibits which are part of the file. Within a reasonable time after the commission has concluded its hearing, it shall, by resolution, set forth its findings and decision on the matter. The commission may decide to grant the petition, conditionally grant the petition or deny the petition.

(c) The decision of the commission shall be mailed to all persons entitled to notice under Chapter 19.98.

(d) The decision of the commission shall become final on the fifteenth calendar day after the copy of the written decision of the commission has been placed in the mail to the applicant; provided, however, that if a written notice of appeal is accepted for filing by the director of community development, or designee, as provided in Section 19.98.070 within the ten-day period, the decision of the commission shall not be final, and it shall be of no force or effect. (Ord. 2842-07 § 1)

Any action taken by the planning commission under this chapter may be appealed to the city council by filing with the director of community development, or designee, a written notice of appeal within fifteen days after a copy of the decision of the planning commission has been mailed, as provided in Section 19.98.070. The applicant, or any person, may file such a notice of appeal. The notice of appeal shall be filed with the director of community development, or designee on a form furnished by the director, or designee, and the information and data required

to be set forth in such notice shall be as prescribed by the director, or designee. When such notice has been accepted by the director of community development, or designee, for filing:

(a) The director, or designee, shall, within ten days, file with the clerk of the city council a copy of the application and the notice of appeal.

(b) The council shall hold at least one public hearing on the matter. The hearing of the council shall be de novo. The city clerk shall set the date of the first public hearing by the council, which date shall not be less than ten nor more than sixty days after the date on which the copy of the application and the notice of appeal were filed with the city clerk. Within a reasonable time after the council has concluded its hearing, it shall, by resolution, set forth its findings and decision on the matter.

(c) The decision of the council shall be final. The city clerk shall mail a certified copy of the decision of the council to the applicant and the appellant at the addresses shown for such purpose on the application and notice of appeal. (Ord. 2842-07 § 1)

The planning commission or the city council, on appeal, may grant the petition for release of the covenant of easement only upon a finding that the restriction of the property is no longer necessary to achieve the land use goals of the city. (Ord. 2842-07 § 1)

Within fifteen days after the action of the planning commission or the city council in granting a petition for release has become final, the director of community development, or designee, shall cause the release to be recorded in the office of the recorder for the county of Santa Clara. (Ord. 2842-07 § 1)