Whenever the approving authority 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 17.49.010(B)(1),
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, executable by the city engineer
on behalf of the city; or
2. 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. 437 § 4, 2018)
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 benefited parcels are under
common ownership;
B. A consent
to said covenant of easement and the recording thereof by the record
owner(s);
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 city of Malibu code section, which sets forth the
procedure for release of the covenant;
H. Identification
of the city as a third-party beneficiary for purposes of enforcing
the covenant of easement, but such status shall not give the city
any right to ingress, egress or emergency access over any real property;
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. 437 § 4, 2018)
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 such determination in any 12 month period
as indicated below:
A. To
obtain a determination mentioned above, a "request for determination"
application shall be made and filed with the planning department.
Said application shall include a fee as set by resolution of the council.
B. Upon receipt of a completed application, the planning department shall set the matter for public hearing before the approving authority in a manner consistent with Chapter
17.04 (Administration and Enforcement).
C. At
the conclusion of the public hearing, the approving authority shall
determine and make a finding, based upon substantial evidence in the
record, whether the restriction imposed by the covenant of easement
is no longer necessary to achieve the land use goals of the city.
D. 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.
E. Planning commission and planning director action on the continuing need for the covenant of easement is subject to appeal in accordance with Chapter
17.04 (Administration and Enforcement).
F. The
city council's determination shall be final and conclusive.
(Ord. 437 § 4, 2018)
Nothing in this chapter shall create in any person other than
the city and the owner of the real property burdened or benefited
by the covenant of easement standing to enforce or to challenge the
covenant or an amendment thereto or release therefrom as set forth
in Section 65875 of the California
Government Code. The city shall
have the right, but not the obligation, to enforce the covenant.
(Ord. 437 § 4, 2018)