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Request before Council: Understanding easements

Posted 5/17/23

Many Fountain Hills residents have found themselves in the position of wanting to make an improvement to their property – a pool, fence, wall, etc. – only to find they cannot do so because the …

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Request before Council: Understanding easements

Posted

Many Fountain Hills residents have found themselves in the position of wanting to make an improvement to their property – a pool, fence, wall, etc. – only to find they cannot do so because the project would encroach on a public easement.

A request before the Town Council recently prompted Town Engineer David Janover to provide the council (and the public) with a primer on what easements are and the process a property owner must use to have the easement abandoned to allow personal use of the property.

“An easement is defined as a specified area on a lot or parcel of land reserved or used for the location of and/or access to utilities, drainage or other physical access purposes, or for the preservation of undisturbed terrain for the benefit of the general public,” Janover said. “The easement area is owned by the property owner for which the easement lies on but can be used or accessed by others.”

The various specific types of easements include drainage, public utility, non-vehicular access, hillside protection and private easements (to allow for a shared driveway, for instance).

Property owners are not allowed to construct permanent improvements within these designated easements. This is because all utility companies reserve the right to enter property to install new infrastructure as needed or to enter the property to access and maintain existing infrastructure. The utility would be allowed to enter the property and remove any permanent improvements that encroach on the easement to install or maintain infrastructure.

Janover said Fountain Hills has many of what he describes as “pre-incorporation easements.” The original master plan included many public utility and drainage easements between parcels.

“It is uncommon to place easements as a matter of course, without knowing where they will be needed,” Janover said.

As a result, there are numerous easements in place where there will be no need for utility infrastructure, but since the easement exists anyone who wants an improvement within the easement must ask for an abandonment.

Process

Most types of abandonment require a resolution with Town Council approval. There are a number of steps the property owner must take to get a resolution before the council.

The owner must contact each of the six utility companies that operate infrastructure within the Town asking for their approval of the abandonment. The agencies include EPCOR Water, Fountain Hills Sanitary District, Southwest Gas, SRP, Cox and Lumen (formerly Century Link).

The property owner must receive a letter of approval from all these utility companies to proceed.

The Town has an online application homeowners can use to submit their request for abandonment. This is through the Town’s TOPPS online permitting system. The application is to include a map/exhibit; the utility approval letters; and an easement abandonment application fee of $750.

Town engineering staff reviews the application, ensures the approval of the utilities and conducts a drainage/topographic review to ensure that historic drainage patterns can be maintained. Staff will create additional exhibits if needed and draft a resolution for council consideration.

The staff process also includes sending letters to owners of all adjacent properties notifying them of the request and the date of council consideration. If approved the Town has the resolution recorded with Maricopa County.

Normally such resolutions that have been through the process are added to the council consent agenda and approved without discussion.

Concerns

A property owner on Leo Drive had recently removed mature trees and vegetation from their yard and it appears as well as adjacent properties. When neighboring property owners objected to the work the Neighborhood Property Owners Association (NPOA) directed the property owner to replace the vegetation and trees. (The Town does not have jurisdiction over a homeowner’s decision to remove or plant trees or vegetation on their property).

The homeowner did submit a landscape plan and a courtesy review was conducted by the Town’s planning department.

Landscaping is not considered the same as a “permanent” structure such as a wall or pool so there was no need for an easement abandonment. However, the property owner requested one to assure the planting could not be disturbed in the future and protect their investment in the project, according to Janover.

The neighboring property owners objected to the abandonment citing concerns about encroachment onto their property and preservation of a “buffer” between properties. The council did not agree with the arguments of the neighbors and approved the abandonment resolution.