California Surveyors Forums

Can a city condition private easements for utilities to serve a parcel that is not a party to the subdivision?

They are requiring us to create a couple of new utility and access easements in favor of a neighbor who has a messy access and utility situation which crosses our clients parcel. There are sufficient easements already in place across the parcel for 18+ years. The neighbor in question is a bit hostile towards the subdivision.

Does the neighbor have to accept the new easements by signing the map?

At a minimum, that should be an off-map document. It should not be on the map.

What public purpose is served by imposing the easement burdens upon the subdivided property? Unless the city can demonstrate that a significant cost savings in its own operations will result from the new easements, I don't understand how it can legally require them. Making things cheaper or more convenient for the adjoiner isn't a public benefit.

I think what you really mean to ask is if they can "legally" condition the map. The City can write any condition they want. Your client is free to appeal it within a certain amount of time. If he doesn't appeal or the appeal is denied and he decides not to take it any further, then he is stuck with it. I agree with Mike that it should be an easement by separate document, not on the map. You said the neighbor has a messy access and utility situation, so your next comment saying there are sufficient easements already in place is confusing. If they are adequate, why is it messy? In the interest of being a good neighbor, your client may choose to accept the condition and offer the easements. The neighbor could also appeal, causing potential delays, if he is not happy, so that is something your client would want to consider before pushing back on this matter.

"If they are adequate, why is it messy?"

There is a 10 foot strip for ingress, egress and utilities which crosses the lot, created in 1992. The water and sewer lines are not in the easement but meandering close to it.

A second easement was created in 2001 "over the existing water and sewer line".

The city is requiring the new easements, shown on the map, to be 10' wide centered 5' on either side of the line.

The result is an 80 x 200 lot is 1/3 encumbered by easements and it is a fiasco trying to draw it all on a parcel map.

My opinion is that first of all, the city has no business perfecting the neighbor's private easement rights. Second, if there is some public benefit to taking the client's land for the neighbor's private utilities then the city would be required to compensate the client for the taking.

Thanks for the input. I did some research over the weekend and could not find one example of a private easement being created by a parcel map. I've heard of cases where access was conditioned and performed by separate instrument then shown on a parcel map but not created by the map.

As an aside, I was told recently by an attorney who specializes in easements that a grantee has to accept the easement. He suggested filing a "notice of consent" in hostile situations. All of the easements I see only have a grantor signature....how is this acceptance effected?

I've seen private easements offered in the Owner's Statements on maps and you can record easement offers without an acceptance. The only problem when it comes to offers recorded without acceptances, is that you can't obligate the recipient of the easement to maintain something they haven't agreed to maintain.

See 66474(g) in the SMA

In the Tentative Map approval, there should be findings that discuss whether the design and improvements will conflict with existing easements. I suspect the public agency concluded they did and are requiring alternate easements to mitigate the conflict. The easements should recorded as seperate documents concurrently with the map. In my area, the private easements are illustrated on the map and annotated to be recorded by seperate document.