ARTICLE 170
COVENANTS FOR EASEMENTS

25-170-1: GENERAL:

A. Authority For Adoption: This article is adopted pursuant to Government Code sections 65870 to 65875.

B. Application Of This Article To Development Projects: This article shall apply to all development projects approved by the city, its city council, planning commission, voters, officers, and employees, which are not a part of the subdivision process, and acts independently from any other authority or method for the city to require an easement.

The provisions of this article shall only apply when:

1. The covenant for easement is for:

a. Parking;

b. Ingress, egress, or emergency access;

c. Light and/or air access;

d. Landscaping; and/or

e. Open space purposes.

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

3. When the development project for which the approval is sought is not an approval under the subdivision map act. (Ord. #1563, §3)

25-170-2: PROCEDURES:

Whenever the planning commission or city council determines, independently or based upon the recommendation of city staff, that a covenant of easement is needed for one or more of the purposes identified in subsection 25-170-1B1 of this article, the approval, permit, or designation shall not become effective unless or until said covenant of easement is recorded.

A. Whenever a covenant of easement is required herein, the covenant shall either:

1. Be in a form and manner approved by the city attorney based upon the advice of the city engineer and director of development services; or

2. Be prepared by the city attorney. 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. #1563, §3)

25-170-3: CONTENT OF COVENANT:

Any covenant of easement prepared pursuant to this article 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 and to be burdened 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 65871(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 section of this municipal code which sets forth the procedure for release of the covenant;

H. An appropriate section for execution of said covenant of easement by the record owner or owners of the subject real property. (Ord. #1563, §3)

25-170-4: RELEASE OF COVENANT; PROCEDURE:

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 body, i.e., city council or planning commission, that took final action on the original application. A person shall be entitled to only one such determination in any twelve (12) month period.

A. 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 city council.

B. Upon receipt of a completed application, the city clerk shall set the matter for public hearing before the planning commission or city council, as appropriate, 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 three hundred feet (300') of the property.

C. At the conclusion of the public hearing, the planning commission or city council, as appropriate, 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 or city council, as appropriate, determines that the covenant for easement is still required, the planning commission or city council, as appropriate, shall by resolution determine that the need still exists.

D. If the planning commission or city council, as appropriate, finds that the covenant of easement is no longer necessary, the planning commission or city council, as appropriate, 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.

E. Planning commission action on the continuing need for the covenant of easement is subject to appeal in accordance with article 100 of this chapter.

F. The city council’s determination in subsections C and D of this section shall be final and conclusive. (Ord. #1563, §3)