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Thread: Building over easements

  1. #1
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    Building over easements

    Allowing construction over an easements sounds like a bad idea to me. I would like to
    introduce an ordinance that would prohibit this. Is anyone aware of such an ordinance? Please share your thoughts and any appropriate verbiage. thanks!

  2. #2
    Cyburbian KSharpe's avatar
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    Quote Originally posted by Colorado View post
    Allowing construction over an easements sounds like a bad idea to me. I would like to
    introduce an ordinance that would prohibit this. Is anyone aware of such an ordinance? Please share your thoughts and any appropriate verbiage. thanks!
    It is already prohibited. That's why its an easement. Technically, if you build something in a utility easement, for example, the utility company has the right to tear it down.
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    Cyburbian zman's avatar
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    Should be outright prohibited without the necessity of an ordinance...

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  4. #4
    Cyburbian cch's avatar
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    There are so many different types of easements (ingress/egress, utility, drainage, conservation, etc), and some of them are enforced to differing degrees, by different people. But usually the whole point of recording an easement in the first place is to make sure nobody builds over it. No need for an ordinance.

  5. #5
    Cyburbian Otis's avatar
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    Whether you can build over an easement depends on the terms of the easement. It is possible that there is a state law that says you can't build over a public utility easement. You might check you state subdivision laws.

    Beyond that, everyone should know that you build over an easement at your own peril. Utility companies are not shy about demolishing something that gets in their way and is not allowed by the easement.

    Remember that an easement is just an interest in land, giving the easement holder a right to do something with it. The owner of the underlying property retains the right to do anything reasonable with the easement area that is not inconsistent with the terms of the easement.

  6. #6
    On the stuff we require permits for, we don't allow it. For things we don't, fences, landscaping, etc, I tell people not to become attached to what you put there. If whoever has the easement needs to use it, whatever is in the way, won't be.
    When did I go from Luke Skywalker to Obi-Wan Kenobi?

  7. #7
    Unfrozen Caveman Planner mendelman's avatar
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    We generally allow for the construction of "permanent" structures like detached garages, shed, gazebos, etc. within easements, but we require that the applicant get a letter of release (permission to built in the easement) from the applicable utility companies before a permit can be issued. That usually deters people sufficiently because they know the red tape at the typical utility company would take too long.
    I'm sorry. Is my bias showing?

    The ends can justify the means.

  8. #8
    Cyburbian Cardinal's avatar
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    Following up on what others have hinted at, an easement is essentially a contract between the property owner and the entity to which the easement is granted. That may be a municipality, a utility, another property owner, or just about anything. It does not matter. The easement will contain terms which effectively determine what may be done with the property. I see no reason for a blanket prohibition of development over an easement. All that will do is raise acquisition costs and make development more difficult.
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    Cyburbian The One's avatar
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    well.....

    I wouldn't build anything in an easement unless the owner of the easement allowed the construction in writing. We have major easement owners that have extensive special development rules that must be followed before construction or use takes place. Things get built in easements all the time, most often for the purpose of the easement, then sometimes for things like trails, landscaping, walls and other infrastructure as allowed by the easement owner, sometimes under licence or agreement. Some easements like view corridor easements or viewshed easements limit the height of structures, but still allow for a home to be built.
    “The way of acquiescence leads to moral and spiritual suicide. The way of violence leads to bitterness in the survivors and brutality in the destroyers. But, the way of non-violence leads to redemption and the creation of the beloved community.”
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    Thanks for the input- I do understand the concept of easements. The problem is that I am in a very old Town and many people have built over utility easements and more people wish to do the same. I feel that if we require a letter of release from the utility company (as stated above - thanks) that can solve this issue.

  11. #11
    Cyburbian zman's avatar
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    We got a lot of "this was historically done here, son..."
    Well, here it doesn't mean they can do it now.

    Just let them know that the utilities can come in if they need to, tear up their improvements within the easement and do not have to replace anything.

    I think it is a Colorado revised statute, but I am not sure. Defer to the state.

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  12. #12
    Cyburbian
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    I disagree

    Quote Originally posted by Colorado View post
    Thanks for the input- I do understand the concept of easements. The problem is that I am in a very old Town and many people have built over utility easements and more people wish to do the same. I feel that if we require a letter of release from the utility company (as stated above - thanks) that can solve this issue.
    By requiring permission from the utility company you are giving the utility a veto power that they may not possess by reason of their contract with the property owner. You are acting illegally under "color of law", a Federal crime. These issues are, or should have been addressed in the original agreement. In any event it is between the parties and your interferrnce is probably not welcome.

  13. #13
    Cyburbian Zoning Goddess's avatar
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    Quote Originally posted by Robert MacKeil View post
    By requiring permission from the utility company you are giving the utility a veto power that they may not possess by reason of their contract with the property owner. You are acting illegally under "color of law", a Federal crime. These issues are, or should have been addressed in the original agreement. In any event it is between the parties and your interferrnce is probably not welcome.
    It's only a local planning issue. If you have an easement by plat and an adopted process to vacate, that is perfectly legal. We vacate portions of easements, rights-of-way, all the time.

    What are we supposed to do, call ATF if somebody wants to put a 4 x 6 shed in an easement? It is soooo not a "federal crime".

  14. #14
    Cyburbian
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    Sooo...How would you all feel about actually putting part of a house over the utility line(s) that occupy such an easement?

    Don't ask why I'm asking...

  15. #15
    Cyburbian
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    Power Easements

    Quote Originally posted by Zoning Goddess View post
    It's only a local planning issue. If you have an easement by plat and an adopted process to vacate, that is perfectly legal. We vacate portions of easements, rights-of-way, all the time.

    What are we supposed to do, call ATF if somebody wants to put a 4 x 6 shed in an easement? It is soooo not a "federal crime".
    I am heir to a 45 year old power easement contract. The county has no business assigning additional property rights to the easement owner at my expense. Progress Energy execs are big boys, they don't need help from the bureaucrats. I see planners putting all kinds of restrictions on developers that are not mandated by the codes. The developers cave in because the delays to fight about this stuff just cost too much. When a public employee forces unwarranted mandates on a developer, he/she is acting under "color of law". this is a Federal offense under Sec. 1983. The problem is that it is so expensive to prove the point that it is seldom pursued. When it is, the offending party is personnally responsible for acting outside the scope of his authority.
    You "vacate easements all the time" only when your county owns them. You have no right messing with private property property easements

  16. #16
    Gunfighter Mastiff's avatar
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    Quote Originally posted by Inventor View post
    I am heir to a 45 year old power easement contract. The county has no business assigning additional property rights to the easement owner at my expense. Progress Energy execs are big boys, they don't need help from the bureaucrats. I see planners putting all kinds of restrictions on developers that are not mandated by the codes. The developers cave in because the delays to fight about this stuff just cost too much. When a public employee forces unwarranted mandates on a developer, he/she is acting under "color of law". this is a Federal offense under Sec. 1983. The problem is that it is so expensive to prove the point that it is seldom pursued. When it is, the offending party is personnally responsible for acting outside the scope of his authority.
    You "vacate easements all the time" only when your county owns them. You have no right messing with private property property easements
    Well, you stated it perfectly. If the imposition is unwarrented, your point is valid. Anyone coming in with a plot plan showing construction over an exisiting easment would be denied. The denial is warrented, because the city is responsible for the proper application of codes when it comes to permitting structures. Do you think the "big boys" review all of the building permit applications where they have easements?

    Case in point. We had two houses built a few years back in an easement that belongs to Bonneville Power & Electric. It went unnoticed by staff... BP&E had failed to give copies of the easements to the county assessor. That, according to our municipal attorney, who knows much more about the law than most, is all that saved the city from a lawsuit. The utility "big boys" are still making them move the houses.

    Now, of course, I have all their easement maps so I could deny the permits, thus saving them the incredible headache the other two have... which is to try and sue the title company. I hear that isn't going well, because title companies are notorious for weasle clauses that keep them from paying out on their title insurance.

    Your arguments really fall apart when you apply them to real situations, don't they? I bet you'd be pretty fired up if you built a million dollar home, permitted by the county, over that 45 year old easement... then had to tear it down.
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  17. #17
    Cyburbian
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    Utility Easments

    Quote Originally posted by Mastiff View post
    Well, you stated it perfectly. If the imposition is unwarrented, your point is valid. Anyone coming in with a plot plan showing construction over an exisiting easment would be denied. The denial is warrented, because the city is responsible for the proper application of codes when it comes to permitting structures. Do you think the "big boys" review all of the building permit applications where they have easements?

    Case in point. We had two houses built a few years back in an easement that belongs to Bonneville Power & Electric. It went unnoticed by staff... BP&E had failed to give copies of the easements to the county assessor. That, according to our municipal attorney, who knows much more about the law than most, is all that saved the city from a lawsuit. The utility "big boys" are still making them move the houses.

    Now, of course, I have all their easement maps so I could deny the permits, thus saving them the incredible headache the other two have... which is to try and sue the title company. I hear that isn't going well, because title companies are notorious for weasle clauses that keep them from paying out on their title insurance.

    Your arguments really fall apart when you apply them to real situations, don't they? I bet you'd be pretty fired up if you built a million dollar home, permitted by the county, over that 45 year old easement... then had to tear it down.
    Hello Mr Mastiff,
    We are in agreement. The kind of thing I am complaining about is when the County insists on set-backs from the easement when the setback is really the responsibility of the power company to keep their wires a distance from the lot line. In essence the county is giving the power company additional land.
    Let me tell you of a particularly outrageous abuse of authority. County planners recently attempted to severely curtail building within a 5 mile radius of the Crystal River nuke plant. This would effectively give Progress Energy an easement on the area. The power company never asked for this because they are evidently in compliance with State and NRC regs already. They were silent as the issue played out because they obviously did not want to get involved in a situation where they would have to pay for the land to mitigate a safety issue about their operation. What is the mind set of planners who think they can supercede the NRC and give away the land owners rights with no compensation whatever ?

    Here is another situation that requires some thought :
    I purchased land that had a "blanket" easement on 120 acres for the purpose of one power service to a watering station for cattle. The power companies used to do this to get free easements, and the owners were not smart enough to see a problem. I was fortunate in that the power had been off for 11 years so the easement was abandoned under the Florida Statutes. A planner seeing the recorded easement would be facing a problem. It is certainly the resposibility of planners to head off problems, I just don't like to see them create rights that don't exist.

  18. #18
    Gunfighter Mastiff's avatar
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    Quote Originally posted by Inventor View post
    Hello Mr Mastiff,
    We are in agreement. The kind of thing I am complaining about is when the County insists on set-backs from the easement when the setback is really the responsibility of the power company to keep their wires a distance from the lot line. In essence the county is giving the power company additional land.
    Actually... no. No one is talking about any additional land other than the easement. Not a single post says such a thing. The question pertains to a city not granting a permit over an existing easement. Just the easement... not a millimeter more.

    Quote Originally posted by Inventor View post
    Let me tell you of a particularly outrageous abuse of authority. County planners recently attempted to severely curtail building within a 5 mile radius of the Crystal River nuke plant. This would effectively give Progress Energy an easement on the area. The power company never asked for this because they are evidently in compliance with State and NRC regs already. They were silent as the issue played out because they obviously did not want to get involved in a situation where they would have to pay for the land to mitigate a safety issue about their operation. What is the mind set of planners who think they can supercede the NRC and give away the land owners rights with no compensation whatever ?
    For every piece of anecdotal evidence you can give, I can send twice as much back... let's not, okay?

    Quote Originally posted by Inventor View post
    Here is another situation that requires some thought :
    I purchased land that had a "blanket" easement on 120 acres for the purpose of one power service to a watering station for cattle. The power companies used to do this to get free easements, and the owners were not smart enough to see a problem. I was fortunate in that the power had been off for 11 years so the easement was abandoned under the Florida Statutes. A planner seeing the recorded easement would be facing a problem. It is certainly the resposibility of planners to head off problems, I just don't like to see them create rights that don't exist.
    Blanket easements suck... I agree. When I see that, I'll recommend the owner talk to the holder of the easement. Usually power, they seem to do it a lot. With no description, I wouldn't hold up a building permit.
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  19. #19
    Cyburbian Mercer's avatar
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    You have no right messing with private property property easements
    Want to bet? We frequently require access or use easements to be extingushed upon redevelopment of a parcel. If the reviewing jurisdiction does not like a certain access easement due to fire acess, sight distance triangle issues, or proximity to another driveway, we can make them reposition the access easment. This is perfectly within powers granted by Federal and State law.

  20. #20
    Cyburbian Tide's avatar
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    This really depends on what type of easement.

    Sewer, pipeline, electrical, ingress/egress yes you can pave over those, and in some cases (not ingress egress) put accessory structures (non permanent). However, when it comes to drainage and the new EPA non point regulations we hold a 30 foot buffer from any open drainage easement with NO building (except decks and patios).
    @GigCityPlanner

  21. #21
    Cyburbian The One's avatar
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    On a related note.....

    I like this case out of Colorado....at least the short description provided in this months P&E Law journal:

    JJR 1, LLC v. Mt. Crested Butte, Colorado Court of Appeals, March 22, 2007, 2007 WL 851623

    "Property owners have no protected property interest in scenic view or in participation at hearing on permit for project that would block that view"

    59 PEL 190 Colorado
    “The way of acquiescence leads to moral and spiritual suicide. The way of violence leads to bitterness in the survivors and brutality in the destroyers. But, the way of non-violence leads to redemption and the creation of the beloved community.”
    Dr. Martin Luther King, Jr.
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  22. #22
    Cyburbian
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    Floating Easement

    Quote Originally posted by Mercer View post
    Want to bet? We frequently require access or use easements to be extingushed upon redevelopment of a parcel. If the reviewing jurisdiction does not like a certain access easement due to fire acess, sight distance triangle issues, or proximity to another driveway, we can make them reposition the access easment. This is perfectly within powers granted by Federal and State law.
    I addressed this problem in my deed restrictions. Where lots are reconfigured I mandated that the easement will "float" or move to the newly configured lot lines. There is always a way to work around these things things but it may require some fore sight.

  23. #23
    Cyburbian
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    As CCH and others have stated it all depends on the easement. I've worked for a City that did not allow Home owners to build a fence across easements, thus creating a void area behind the fences! Idiotic if you ask me, but thats how they'd done it and were going to continue. Easements are built on quite frequently though, often time parking lots are built over easements, out structures, etc... etc... As mentioned though, it is really an easement issue and not a ordinance issue and thus each has to be reviewed or created on an individual basis. A wood fence probably isn't a big deal in a (U/E) utility easement, where as the fence might be a huge issue in a (D/E) drainage easement.

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