Chapter 17.49 — COVENANT OF EASEMENT

• A. This chapter is adopted pursuant to Government Code Section 65870 et seq.

• B. This chapter shall apply to all development projects approved by the city, its council, commission, voters, officers, and employees. This chapter acts independently from any other authority or method for the city to require an easement. The provisions of this chapter shall only apply when:

  1. The covenant of easement is for ingress, egress, or emergency access.

  2. At the time of recording the covenant of easement, all the real property benefited or burdened by said covenant is in common ownership and the covenant of easement does not grant any right to ingress, egress or emergency access over any other parcel.

  3. The covenant of easement would not facilitate access to or over a private road or easement unless each and all real property benefited or burdened by the covenant of easement possesses the right to use such private road or easement.

• (Ord. 437 § 4, 2018)

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)