HomeMy WebLinkAbout2022-11-16 - Resolution No. 2022-33RESOLUTION NO. 2022-33
RESOLUTION OF THE BOARD OF DIRECTORS
OF THE YORBA LINDA WATER DISTRICT
ADOPTING AN ENCROACHMENTS POLICY
WHEREAS, it is the policy of the Yorbo Linda Water District to protect its property and
property rights from encroachments because such encroachments may
(a) violate the constitutional prohibition against the 'gift of public funds'
under article XIV, section 6, of the California Constitution, (b) be a trespass
and/or public and private nuisance to District real and/or personal
property, (c) expose the District to liability, and/or (d) threaten the integrity
of District facilities and infrastructure that provide water and sewer service
to District customers: and
WHEREAS, it is the desire of the Board of Directors to establish a procedure to mitigate
or eliminate encroachments on District property or property rights by
adoption of on Encroachments Policy.
NOW THEREFORE BE IT RESOLVED by the Board of Directors of the Yorbo Linda Water District
hereby adopts the Encroachments Policy as attached hereto and by this reference
incorporated herein.
PASSED AND ADOPTED this 16"^ day of November 2022 by the following called vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
ATTEST:
Directors DesRoches, Hawkins, Jones, Lindsey, and Miller
None
None
None
J. WoyneV^Ailler, PhD, President
Yorbo Linda Water District
Annie Alexander, Board Secretary
Yorbo Linda Water District
Reviewed as to form by General Counsel:
Andrew B. Gogen^sq.
Kidman Gagen Jraw LLP
Resolution No. 2022-33 Adopting Encroachments Policy
YORBA LINDA WATER DISTRICT 4010-002-POL
Page 1 of 4
ENCROACHMENTS
Dept/Div: Engineering Approved By: Resolution No. 2022-33
Effective Date: November 16, 2022 Applicability: District Wide
Supersedes: N/A See Also: N/A
1.0 Policy Regarding Encroachments on District Property and Property Rights
1.1 It is the policy of the Yorba Linda Water District to protect its property and property rights
(e.g. easements, licenses, etc.) from encroachments because such encroachments may
(a) violate the constitutional prohibition against the ‘gift of public funds’ under article XIV,
section 6, of the California Constitution, (b) be a trespass and/or public and private
nuisance to District real and/or personal property, (c) expose the District to liability,
and/or (d) threaten the integrity of District facilities and infrastructure that provide water
and sewer service to District customers.
2.0 Purpose of This Policy
2.1. The purpose of this Policy is to establish the procedure to mitigate or eliminate an
encroachment on District property or property rights.
3.0 Determining Whether an Encroachment Violates District Property Rights
3.1 When a potential encroachment is identified, District staff will obtain the documents that
identify the District’s ownership of the property or District property rights in which there is
a potential encroachment.
3.2 District staff, who may consult with District Counsel, will review the documents regarding
the potential encroachment to determine if the potential encroachment violates the
District’s property rights such as a trespass on District property or breach of a written
easement.
3.3 District staff will keep a chronology of communications and attempted contacts
described next with the encroachment owner and City.
4.0 Procedure to Mitigate or Eliminate the Encroachment
4.1. If the District determines that the encroachment is a violation of the District’s property
rights, then District staff will contact the City where the property is located to determine
whether the encroachment is a result of the encroachment owner’s failure to obtain a
building permit required under the City’s municipal code. If so, District staff may ask the
City to enforce its municipal code and remove the unpermitted encroachment. If not or
the City chooses not to do so, then District staff will contact the encroaching owner of
the property and/or owner of encroaching utilities where the encroachment is located
and (a) advise the encroaching owner of the encroachment, and (b) in the District’s sole
discretion, either request the encroaching owner remove the encroachment or sign a
Declaration of Restrictive Covenants (“Declaration”), which is described immediately
YORBA LINDA WATER DISTRICT 4010-002-POL
Page 2 of 4
below. District staff will make at least five total attempts to contact the owner by a
combination of the following, which should include at least two of the following: email,
phone, certified mail, and in person.
4.1.1 The Declaration conditionally permits, among other terms and conditions, the
encroachment as follows: (a) the encroachment owner may continue to
encroach, but the District has the right to request removal in the event of
necessary repairs to District facilities or other actions, (b) no further
encroachments may be installed by the encroachment owner, (c) the
encroachment owner assumes full responsibility and liability, and shall pay, for
any costs or damages to District’s property or facilities arising from
encroachment, and (d) the encroachment cannot be repaired or replaced for
any reason, unless approved by the District. The template for the District’s
Declaration, which may be amended from time to time, is attached hereto as
Exhibit A.
4.2. If District staff receives a response from the owner, then District staff will either (a) schedule
a site inspection, if necessary, to prepare the Declaration and/or confirm the scope of
the encroachment, or (b) establish a date for when the encroachment must be
removed. Under (a), if a site inspection is not necessary, or after the site inspection is
concluded, District staff will prepare a Declaration and transmit it to the encroachment
owner for the owner’s signature. In addition to the initial transmission of the Declaration,
District staff will make at least four additional attempts to receive a signed Declaration
from the owner by a combination of the following, which should include at least two of
the following: email, phone, certified mail, and in person.
4.3. If (a) District staff does not receive a response from the encroachment owner under
Sections 4.1 and 4.2, or (b) the encroachment owner rejects the District’s request to
remove the encroachment or sign the Declaration, then District staff will advise the Board
of Directors of (a) or (b) and, unless the Board directs staff differently, refer the matter to
District Counsel.
4.3.1 District Counsel will prepare at least three letters to the owner. The first and
second letter will include a copy of the Declaration and provide the owner with
approximately two weeks to respond. The third or final letter will include a copy
of a draft complaint and provide the owner with approximately two weeks to
respond. Each letter will be transmitted via email and U.S. mail.
4.3.2 If (a) the owner (i) does not respond to the final letter or (ii) rejects the District’s
request to remove the encroachment or sign the Declaration, and (b) the District
Board of Directors has authorized District counsel to initiate litigation against the
owner, then District Counsel will file and serve the complaint against the
encroachment owner.
4.4. Attached as Exhibit B is a flow chart that summarizes the above-described procedure to
mitigate or eliminate the encroachment. If there is any conflict between the flow chart
and language in this Policy, the Policy shall prevail and control.
YORBA LINDA WATER DISTRICT 4010-002-POL
Page 3 of 4
EXHIBIT A
DECLARATION OF RESTRICTIVE COVENANTS
YLWD DoRC Rev. 11/08/22 1
RECORDING REQUESTED BY and when
recorded return to:
Yorba Linda Water District
PO Box 309
Yorba Linda, California 92885-0309
This is to certify that this Declaration of
Restrictive Covenants is presented for
recording under the provisions of Gov.
Code Sec. 27383 by the Yorba Linda
Water District in performance of an
official service thereof.
____________________________________
Richard Mark To y
General Manager
Space Above This Line for Recorder’s Use
DECLARATION OF RESTRICTIVE COVENANTS
(ENCROACHMENT ON YLWD EASEMENT)
THIS DECLARATION OF RESTRICTIVE COVENANTS (“Declaration”) is made and
effective on [DATE] by and between YORBA LINDA WATER DISTRICT (“YLWD”), a public
agency, created and operating under the authority of Division 12 of the California
Water Code, and [NAME(S)] (“Owner”). YLWD and Owner are sometimes referred to
herein individually as “Party” and collectively as “Parties”.
RECITALS
A. The Owner is the legal owner of that certain real property located at
[ADDRESS] (“Subject Property”), which is more particularly described as follows:
PARCEL X IN THE CITY OF YORBA LINDA, COUNTY OF ORANGE, STATE OF
CALIFORNIA, AS SHOWN ON MAP FILED IN BOOK XX, PAGE X OF PARCEL
MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
B. YLWD owns an Easement, as identified on a Deed of Easement, recorded
on Month Day, Year, in Book XXXX, Page XXX, Official Records of Orange County,
California (“Easement”), across a portion of the Subject Property. The Easement is
attached as Exhibit “A”. Within the Easement, YLWD owns and maintains an X-inch
water/sewer main pipeline and appurtenant structures (“YLWD Facilities”).
C. The Owner desires to (collectively
herein referred to as “Improvements”) within and along the Easement area. This
Declaration prohibits Owner, without YLWD’s authorization and a recorded
amendment to this Declaration, from constructing and/or retaining any improvements
(“Unauthorized Improvements”) other than the Improvements.
YLWD DoRC Rev. 11/08/22 2
D. The construction, existence, and/or use of the Improvements within and
along the Easement area is hereinafter referred to as the “Encroachment”, which is
illustrated in Exhibit “B” attached hereto.
E. YLWD conditionally consents to the Encroachment as stipulated in this
Declaration. The Owner is aware and hereby acknowledges that the Encroachment
may lead to problems affecting and/or interfering with YLWD’s use of the Easement
and access to YLWD Facilities.
F. Although the construction and subsequent existence of the Improvements
within and along the Easement area may interfere or restrict YLWD’s Easement rights,
which may cause the Improvements to be damaged or demolished as authorized
under this Declaration, the Owner wishes to proceed with the Encroachment.
DECLARATION
NOW, THEREFORE, in consideration of the mutual promises, covenants, and terms
and conditions herein, the Parties declare as follows:
1. Covenant Running with Land. This Declaration constitutes a covenant
running with the land as provided by the California Civil Code Section 1468 and shall
benefit, burden, and bind the successive owners of the Subject Property and the
Easement.
2. Successors and Assigns Obligation. Since the Owner wishes to retain the
Encroachment, this Declaration obligates the current and future owners of the Subject
Property to remedy any current and future adverse events and to fund any necessary
maintenance and repair costs on the Easement and/or Subject Property that may arise
in full or in part due to the existence, construction, or damages to the Easement and/or
YLWD Facilities caused by the Encroachment.
3. Damages to YLWD Facilities. The Owner assumes full responsibility and
liability and shall pay for any cost(s) or damage(s) to the YLWD Facilities, arising from the
Encroachment. YLWD shall not be responsible for any cost(s) or damage(s) to the YLWD
Facilities that arise from the Encroachment.
4. Damages to Third Parties. The Owner, its successors or assigns, agrees to
defend, indemnify and hold YLWD, its officers, directors, employees, agents, and
consultants, harmless against any third-party claims arising out of the Encroachment.
5. Damages to Improvements. The Owner acknowledges that the
Improvements may be damaged or demolished to permit access to, or work within and
under, the Easement area and YLWD Facilities. YLWD, its officers, directors, employees,
agents, and consultants, shall not be responsible or liable for any damage(s) to, or
demolition of, the Improvements which result from YLWD’s exercise of rights under the
Easement. The Owner, its successors or assigns, waives all known, unknown, and future
claims, liabilities, causes of action, and expenses (including, but not limited to, attorneys’
fees) against YLWD, its officers, directors, employees, agents, and consultants, for losses
and damages to the Improvements and from any obligation to protect, preserve, repair,
or replace the Improvements.
YLWD DoRC Rev. 11/08/22 3
6. Unauthorized Improvements. Unless approved in writing by the District,
Owner shall not construct and/or retain any improvements other than the Improvements.
If Owner constructs and/or retains any improvement other than the Improvements
without District approval, YLWD may (a) require the improvement to be removed
promptly at the Owner’s expense, (b) revoke the Encroachment, and/or (c) exercise any
other legal remedy available to YLWD. Such Unauthorized Improvements shall be
treated as Improvements and subject to this Declaration until YLWD makes it election
under (a), (b), and/or (c) of this provision.
GENERAL PROVISIONS
7. Recitals. The above recitals are true and correct.
8. Entire Agreement. This Declaration represents the entire and integrated
agreement between the Parties and supersedes all prior negotiations, representations, or
agreements, either written or oral.
9. Amendment to this Declaration. This Declaration may be amended only by
written instrument signed by the Parties.
10. No Implied Waivers. If any term, condition, or provision of this Declaration is
breached by either Party and thereafter waived by the other Party, that waiver will be
limited to the specific breach so waived, and will not be deemed either to be a continual
waiver or to waive any other breach under this Declaration.
11. Governing Law and Interpretation. This Declaration is to be governed under
the laws of the State of California and interpreted according to its plain meaning as if
drafted by both YLWD and Owner.
12. Relationship of Parties. Nothing in this Declaration shall be deemed to
create any form of business organization between the Parties, including, without
limitation, a joint venture or partnership.
13. Resolution of Disputes. Pursuant to California Code of Civil Procedure
Sections 638 et seq., any dispute arising out of this Declaration shall be resolved by judicial
reference, in Orange County, by one judicial referee to determine all issues in dispute,
whether of fact or of law, and to report a statement of decision. This is a waiver of any
right that may exist to a jury trial, but the right to appeal is preserved.
The Parties shall meet to select the referee no later than thirty (30) days after
service of the initial complaint on all defendants named in the complaint. The referee
must have substantial experience in the type of matter in dispute and without any
relationship to either Party, unless the Parties agree otherwise.
All costs incurred in connection with the judicial reference proceeding, including
the cost of the stenographic record, shall be advanced equally by the Parties. However,
the referee shall have the power to reallocate such costs among the Parties in the
referee’s statement of decision.
14. Attorney’s Fees. In the event of any claim or legal action arising out of this
Declaration, the prevailing party shall be entitled to reasonable costs and expenses,
including attorney’s fees.
YLWD DoRC Rev. 11/08/22 4
15. Severability. If any provision, right, or covenant of this Declaration is held
by a court of competent jurisdiction to be invalid, void, or unenforceable, the voided
provision, right, or covenant shall be deemed severed from the remaining provisions of
this Declaration, which shall remain valid and enforceable as permitted by law, and the
Parties shall negotiate in good faith to replace the unenforceable provision(s) in
accordance with the original purpose and intent of this Declaration so stated in the
above Recitals.
16. Counterparts. This Declaration may be signed in multiple counterpart
copies (signatures may be by facsimile or electronic mail), each of which shall be
deemed an original.
17. Capacity of Signatory. The undersigned executing this Declaration on
behalf of YLWD and Owner hereby personally warrant by signing this Declaration that
they are authorized to bind such Party in executing this Declaration and are acting within
the course and scope of that authority.
18. Recording of Declaration. This Declaration shall be recorded in the Office
of the Recorder of the County of Orange, California, and shall constitute notice to all
successors and assigns of the title to the Subject Property of the rights and obligations in
this Declaration.
Approved as to Form: YORBA LINDA WATER DISTRICT
Kidman Gagen Law, LLP
_____________________________
General Counsel President
_____________________________
Engineering Manager General Manager
OWNER:
Name of Signer
Name of Signer
YORBA LINDA WATER DISTRICT 4010-002-POL
Page 4 of 4
EXHIBIT B
FLOW CHART PROCEDURE TO MITIGATE OR ELIMINATE THE ENCROACHMENT
EXHIBIT "B" DATE: 11/2022
ENCROACHMENTS POLICY FLOW CHART
LEGEND: (ENCROACHMENT IDENTIFIED )
( START/END 1 I START COMMUNICATIONS LOG
/ 1
DECISION I CONTAC
lT CITY
1
ACTIVITY CITY PERMIT? NO CITY TO ENFORCE AYES
MUNICIPAL CODE?
DOCUMENT YES CITY & YLWD TO
COORDINATE ACTION
MIN. 5 ATTEMPTS TO CONTACT r
OWNER VIA 2 OF THE FOLLOWING:
EMAIL, PHONE, CERTIFIED MAIL OR NO
IN PERSON
SITE INSPECTION
PREPARE & SEND LETTER PREPARE & SEND
TO INFORM OWNER OF DRAFT DORC TO INFORM
ENCROACHMENT REMOVAL DECISION = OWNER
DATE \/
TT
DRAFT DORC
ACCEPTANCE - LTO OWNER SENT
REFUSAL SENT TO OWNER ACCEPTANCE
REMOVED &
FINAL INSPECTION NO RESPONSE NO RESPONSE
MIN. 5 ATTEMPTS TO MIN. 5 ATTEMPTS TO
ACCEPTANCE CONTACT OWNER VIA 2 NO , ADVISEBOARD �� NO CONTACT OWNER VIA 2 ACCEPTANCE
OF THE FOLLOWING: RESPONSE RESPONSE OF THE FOLLOWING:
EMAIL, PHONE, CERTIFIED EMAIL, PHONE, CERTIFIED
MAIL OR IN PERSON MAIL OR IN PERSON
STAFF CONTACTS lDISTRICT COUNSEL
1
SEND LETTER TO OWNER (IF APPLICABLE, ATTACH DORC) VIA EMAIL & U.S. MAIL
REFUSAL- ALLOW 2 WEEKS TO = ACCEPTANCE
RESPOND
NO REPONSE
1 2ND LETTER TO OWNER VIA EMAIL & U.S. MAIL I
REFUSAL ALLOW 2 WEEKS TO ACCEPTANCE
RESPOND
NO REPONSE
1 3RD LETTER & DRAFT COMPLAINT VIA EMAIL & U.S. MAIL
ALLOW 2 WEEKS TO
RESPOND
NO RESPONSE
r r
BOARD TO CONSIDER AUTHORIZING DISTRICT COUNSEL TO INITIATE LITIGATION
r � r
( COMPLAINT DTOEOWNER ) (TAKE OTONBOARD FOR OAPPROVAL)