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HomeMy WebLinkAboutEAST MULBERRY CORRIDOR PLAN REZONE - 11-03 - CORRESPONDENCE - EASEMENTSPete Wray_-Avigation Easement Pag ACKNOWLEDGEMENT STATE OF ) ss. COUNTY OF ) BE IT REMEMBERED, that on this day of 1997, before me, the undersigned, a Notary Public in and for the County and State aforesaid, came , who are personally known to me to be the same persons who executed the within instrument of writing and such persons duly acknowledged the execution of the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal, the day and year last above written. Notary Public My commission expires Footnote: Local recordation and subordination practices must also be met. If subordination is necessary, in which case the mortgagee must join in the agreement, the following language is suggested: In consideration of the premises and to assure Grantee of the continued benefits accorded it under this easement, [name of mortgagee], owner and holder of a mortgage dated and recorded covering the premises above described, does hereby covenant and agree that said mortgage shall be subject to and subordinate to this Easement and the recording of this Easement shall have preference and precedence and shall be superior and prior in lien to said mortgage irrespective of the date of the making or recording of said mortgage instrument. CC: Steve Roy Pete Wray - Avigation Easement Page 4 transporting persons or property through the air, by whoever owned or operated. The easement and right-of-way hereby grants to the Grantee the continuing right to prevent the erection or growth upon Grantors' property of any building, structure, tree, or other object, extending into the airspace above the aforesaid imaginary plane, and to remove from said air space, or at the sole option of the Grantee, as an alternative, to mark and light as obstructions to air navigation, any such building, structure, tree or other objects now upon, or which in the future may be upon Grantors' property, together with the right of ingress to, egress from, and passage over Grantors' property for the above purpose. (THE FOLLOWING PROVISION MUST BE INCLUDED IN AN AVIGATION EASEMENT OVER THE RUNWAY PROTECTION ZONE.) The Grantors, for themselves, their heirs, administrators, executors, successors, and assigns, do hereby agree that for and during the life of said avigation easement, they will not hereafter erect, permit the erection or growth of, or permit or suffer to remain upon Grantors' property any structure in the Runway Protection Zone that is an airport hazard or which might create glare or misleading lights or lead to the construction of residences, fuel handling and storage facilities, or smoke generating activities; and the grantors, for themselves, their heirs, administrators, executors, successors, and assigns, further agree they will not permit places of public assembly upon Grantors' property, such as, churches, schools, office buildings, shopping centers, restaurants, child care facilities, and stadiums. AND for the consideration hereinabove set forth, the Grantors, for themselves, their heirs, administrators, executors, successors, and assigns, do hereby agree that for and during the life of said easement and right of way, they will not hereafter erect, permit the erection or growth of, or permit or suffer to remain upon Grantors' property any building, structure, tree or other object extending into the airspace above the aforesaid imaginary plane, and that they shall not hereafter use or permit or suffer the use of Grantors' property in such a manner as to create electrical interference with radio communication between any installation upon said airport and aircraft, or as to make it difficult for flyers to distinguish between airport lights and others, or to permit any use of the Grantors' land that causes a discharge of fumes, dust or smoke so as to impair visibility in the vicinity of the airport or as otherwise to endanger the landing, taking off or maneuvering of aircraft. Grantors furthermore waive all damages and claims for damages caused or alleged to be caused by or incidental to such activities. TO HAVE AND TO HOLD said easement and right of way, and all rights appertaining thereto unto the Grantee, its successors, and assigns, until said [full name of airport] shall be abandoned and shall cease to be used for public airport purposes. It being understood and agreed that the aforesaid covenants and agreements shall run with the land and shall be binding upon the heirs, administrators, executors, successors and assigns of the Grantors until said [full name of airport] shall be abandoned and cease to be used for public airport purposes. IN WITNESS WHEREOF, the Grantors [see footnote] have hereunto set their hands and seals this day of , 19 Grantor(s) (SEAL) Pete Wray - Avigation Easement - _ Page 3 j 6. As an alternative, should the controlling agency exercise its power of eminent domain to purchase either an avigation easement, or title to the subject property? Federal Aviation Administration A MODEL AVIGATION AND HAZARD EASEMENT (Revised November 5, 1997) http://www.netvista.net/—hpb/av-ease3.htmi WHEREAS, [full name of property owner(s)], hereinafter called the Grantors, are the owners in fee of that certain parcel of land situated in the City of , County of , State of more particularly described as follows: [Insert legal description of property to be covered by easement] hereinafter called "Grantors' property", and outlined on the attached map (Exhibit 1); NOW, THEREFORE, in consideration of the sum of dollars ($ ) and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Grantors, for themselves, their heirs, administrators, executors, successors and assigns, do hereby grant, bargain, sell, and convey unto [owner and operator of airport; e.g., City of ], hereinafter called the Grantee, its successors and assigns, for the use and benefit of the public, an easement and right of way, appurtenant to [full name of airport] for the unobstructed use and passage of all types of aircraft (as hereinafter defined), in and through the airspace above Grantors' property above an imaginary plane rising and extending in a generally [e.g., southerly] direction over Grantors' property, said imaginary plane running from approximately feet Mean Sea level above [e.g., Point L13] on Exhibit 1 at the rate of one foot vertically for each feet horizontally to approximately feet Mean Sea level above [e.g., Point L11] on Exhibit 1, to an infinite height above said imaginary plane. Said easement shall be appurtenant to and for the benefit of the real property now known as [name of airport] including any additions thereto wherever located, hereafter made by [name of airport owner] or its successors and assigns, guests, and invitees, including any and all persons, firms, or corporations operating aircraft to or from the airport. Said easement and burden, together with all things which may be alleged to be incident to or resulting from the use and enjoyment of said easement, including, but not limited to the right to cause in all airspace above or in the vicinity of the surface of Grantors' property such noise, vibrations, fumes, deposits of dust or other particulate matter, fuel particles (which are incidental to the normal operation of said aircraft), fear, interference with sleep and communication and any and all other effects that may be alleged to be incident to or caused by the operation of aircraft over or in the vicinity of Grantors' property or in landing at or taking off from, or operating at or on said [full name of airport] is hereby granted; and Grantors do hereby fully waive, remise, and release any right or cause of action which they may now have or which they may have in the future against Grantee, its successor and assigns, due to such noise, vibrations, fumes, dust, fuel particles and all other effects that may be caused or may have been caused by the operation of aircraft landing at, or taking off from, or operating at or on said [full name of airport]. As used herein, the term "aircraft" shall mean any and all types of aircraft, whether now in existence or hereafter manufactured and developed, to include, but not limited to, jet aircraft, propeller driven aircraft, civil aircraft, military aircraft, commercial aircraft, helicopters and all types of aircraft or vehicles now in existence or hereafter developed, regardless of existing or future noise levels, for the purpose of `" Pete Ara Avi ation Easement Pa e 2 California Department of Transportation, Aeronautics Program Most developers will, in the spirit of community cooperation, voluntarily grant an avigation easement over their projects. There are, however, those who resist the granting of easements. Land developers who will not voluntarily grant an avigation easement are wont to argue that, if an avigation easement is required as a condition of project approval, there is a "taking" of their property. This, as the argument goes, requires the controlling agency to compensate the land owner for a theoretical decrease in property value. That is a frequent misleading statement. Compensation is required only if the easement causes a substantial decrease in property value. This is explainable by reviewing a land owner's basic rights. A land owner can as a matter of right make only such use of the land as is permitted by valid local zoning laws. The zoning authority can change the zoning to allow a different use. This might be either a higher or lower use. Land owners generally desire zoning that will allow'highest and best use' of their property. But, the California courts have stated clearly that a land owner has no vested right to obtain zoning that would permit a use higher than that permitted by existing zoning. Further, in some instances, the zoning authority may with impunity down -zone property without the owner's consent. Such zoning is discretionary with the responsible city or county if it is reasonably necessary to promote the health, safety, morals or general welfare of the public. Instances in which compensation has been awarded for airport "taking" have mostly related to property in approach zone areas. If approach glide slope height restrictions or low flying aircraft severely limit use of the property, the land owner may be entitled to compensation for diminution in land value. This is based on the legal theory of governmental inverse condemnation. In such an instance a city or county as airport owner could, as an alternative action, exercise its power of eminent domain and purchase an avigation easement, or the property in fee, paying to the land owner a reasonable price. As a practical matter, in most cases avigation easements over commercial or residential developments do not interfere with the land owner's use and do not decrease property value any substantial or measurable amount. But, this 'taking' argument, often urged by developers along with a threat of litigation, has been used repeatedly to mislead and intimidate land use planners. A threat of a lawsuit by a developer can understandably be a powerful influence on conscientious planners - most of whom rarely have available effective legal counsel regarding airport -related matters. If a project sponsor refuses to voluntarily grant an avigation easement, the question then becomes: Can the sponsor be required to grant an avigation easement as a condition for receiving desired zoning and the permits required to continue with the project? In most cases the answer is "YES". Legal authority for a city or county to require an avigation easement as a condition for approving a project is based on the police power as described in the California Constitution and California case law. Police power can generally be described as the power of a governmental entity to take such reasonable action as necessary to promote the health, safety, morals or general welfare of the public. For planners who are called on to evaluate a specific project, here is a checklist of questions that need to be answered with respect to a proposed project: 1. Would the proposed project present a potential safety hazard for persons on the ground or in aircraft using the nearby airport? If the answer is 'yes' the project should not be approved. 2. Would occupants of the project area be subject to adverse aircraft noise? 3. Is an avigation easement needed? 4. Will the property owner voluntarily grant an avigation easement? 5. Should the controlling agency exercise its police power to require an avigation easement as a condition for approving any rezoning or building permits? Pete Wray_ Avigation Easement Page 1 00 'n From: Mike Wermuth r b To: Gregory Byrne; Pete Wray Date: 4/16/03 8:58AM Subject: Avigation Easement Greg / Pete / Steve "Avigation Easement" is the answer to Mr. Kastein's question about legal notification to property owners concerning their proximity to an airport and noise. The comments last night were correct that avigation easements are not an effective tool for notification of renters and therefore does not help much in minimizing noise complaints from renters. I have attached an article from California (equally applicable to Colorado) that gives an "executive summary" of avigation easements. I have also attached a sample easement found on the FAA website. The origins of avigation easements are found in CFR 14 Part 150 (Federal Aviviation Regulations). Steve may want to go to this website for more detailed leagl information: http://www. bc.ed u/bc_org/avp/law/lwsch/journals/bceal r/28_2-3/04_TXT. htm I know there is an "aviation easement" associated with the deeds for Eagle Ranch Estates. There is more information available if you are interested. If you like, I can call the American Association of Airport Executives (AAAE) legal office and see if they know anything about renter notification. I hope this helps. Mike Wermuth, CM AVIGATION EASEMENTS http://www.calpilots.org/cpanew/priorloun69/0699avigatn.html by Jay C. White The use of avigation easements in California land use planning to help preserve airports is a well -established precept. There is, however, considerable confusion among land use planners as to the nature and use of avigation easements. The purpose of an avigation easement is to assure that an airport will be free to continue operating in a normal manner after a nearby development project is completed. It is to allow aircraft operation in a lawful manner without exposing the airport owner or aircraft operator to litigation or liability. Essentially, an avigation easement is intended to maintain the operational status quo. A development project within an airport protection zone can often be made airport -compatible if an avigation easement is granted to the airport owner. There are three compatibility factors addressed by an avigation easement: (1) aircraft noise impact on the project area, (2) the right of aircraft operators to continue to use the related airspace in a safe and normal manner in accordance with Federal Aviation Regulations and state law, (3) noticed recorded in a deed so that future owners or occupants of the project site will know in advance that an airport is situated nearby. Whether there is a need for an avigation easement in a given instance is a factual question to be answered by reviewing the nature of the project and its proximity to the airport. 'Reasonableness' is the key factor in evaluating the need. The AIRPORT LAND USE PLANNING HANDBOOK is a valuable planning reference source for this purpose. The Handbook is sponsored by and available from the