Dana Point City Zoning Code
CHAPTER 9
45 COVENANTS FOR EASEMENTS
§ 9.45.010 Authority for Adoption.
This Chapter is adopted pursuant to Government Code Sections 65870 to 65875.
(Added by Ord. 93-16, 11/23/93)
§ 9.45.020 Application of this Chapter to Development Projects.
This Chapter shall apply to all development projects approved by the City, its Council, 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 Chapter shall only apply when:
(b)
At the time of recording the covenant of easement, all the real property benefitted or burdened by said covenant shall be in common ownership.
(c)
The development project for which the approval is sought is not an approval under the Subdivision Map Act.
(Added by Ord. 93-16, 11/23/93)
§ 9.45.030 Procedures.
Whenever the 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 Section 9.45.020, 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 Director of Public Works and the Director of Community Development; 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.
(Added by Ord. 93-16, 11/23/93; amended by Ord. 94-09, 5/24/94)
§ 9.45.040 Content of Covenant.
Any 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 benefitted 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 benefitted 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)
A statement 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 benefitted, 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 Municipal Code Section 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.
(Added by Ord. 93-16, 11/23/93)
§ 9.45.050 Release of Covenant-Procedures.
Any person may request that the City Council 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. A person shall be entitled to only one such determination in any 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 City Council 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 role if other than the applicant and to all record property owners within 500 feet of the property.
(c)
At the conclusion of the public hearing, the City Council 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 City Council determines that the Covenant for Easement is still required, the City Council shall by resolution determine that the need still exists.
(d)
If the City Council finds that the Covenant of Easement is no longer necessary, the City Council 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.
(Added by Ord. 93-16, 11/23/93)