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Property Taxes Law Guide – Revision 2010
 

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Health and Safety Code

DIVISION 20 MISCELLANEOUS HEALTH AND SAFETY CODE PROVISIONS

CHAPTER 6.5 Hazardous Waste Control

Article 9 Permitting of Facilities

Article 11 Hazardous Waste Disposal Land Use

Chapter 6.5. Hazardous Waste Control

Article 9. Permitting of Facilities

25202.5. Restrictive covenant upon uses. (a) With respect to any hazardous waste facility permitted pursuant to Section 25200 or granted interim status pursuant to Section 25200.5, the department may do either of the following:

(1) Enter into an agreement with the owner of the hazardous waste facility that requires the execution and recording of a written instrument which imposes an easement, covenant, restriction, or servitude upon the present and future uses of all or part of the land on which the hazardous waste facility subject to the permit or grant of interim status is located and on all or part of any adjacent land held by, or for the beneficial use of, the owners of the land on which the hazardous waste facility subject to the permit or grant of interim status is located.

(2) Impose a requirement upon the owner of the hazardous waste facility, by permit modification, permit condition, or otherwise, that requires the execution and recording of a written instrument which imposes an easement, covenant, restriction, or servitude upon the present and future uses of all or part of the land on which the hazardous waste facility subject to the permit or grant of interim status is located and on all or part of any adjacent land held by, or for the beneficial use of, the owners of the land on which the hazardous waste facility subject to the permit or grant of interim status is located.

(b) The easement, covenant, restriction, or servitude imposed pursuant to subdivision (a) shall be no more restrictive than needed, as determined by the department, to protect the present or future public health and safety and shall not place any restriction on any land that limits the use, modification, or expansion of an existing industrial or manufacturing facility or complex. The instrument shall be executed by all of the owners of the land and by the director, shall particularly describe the real property affected by the instrument, and shall be recorded by the owner in the office of the county recorder in each county in which all, or a portion of, the land is located within 10 days of the date of execution. The easement, covenant, restriction, or servitude shall state that the land described in the instrument has been, or will be, the site of a hazardous waste facility or is adjacent to the site of such a facility, and may impose those use restrictions as the department deems necessary to protect the present or future public health. The restrictions may include restrictions upon activities on, over, or under the land, including, but not limited to, a prohibition against building, filling, grading, excavating, or mining without the written permission of the director.

A certified copy of the recorded easement, covenant, restriction, or servitude shall be sent to the department upon recordation. Notwithstanding any other provision of law, except as provided in Section 25202.6, an easement, covenant, restriction, or servitude executed pursuant to this section and recorded so as to provide constructive notice shall run with the land from the date of recordation and shall be binding upon all of the owners of the land, their heirs, successors, and assignees, and the agents, employees, and lessees of the owners, heirs, successors, and assignees. The easement, covenant, restriction, or servitude shall be enforceable by the department pursuant to Article 8 (commencing with Section 25180).

(c) Except as provided in subdivisions (d) and (e), any land on which is located a hazardous waste disposal facility permitted pursuant to this chapter shall be surrounded by a minimum buffer zone of 2,000 feet between the facility and the outer boundary of the buffer zone. The department may impose an easement, covenant, restriction, or servitude, or any combination thereof, as appropriate, on the buffer zone pursuant to subdivision (a). If the department determines that a buffer zone of more than 2,000 feet is necessary to protect the present and future public health and safety, the department may increase the buffer zone by restricting the disposal of hazardous waste at that facility to land surrounded by a larger buffer zone.

(d) Subdivision (c) does not apply to any hazardous waste property, as defined in paragraph (1) of subdivision (a) of Section 25117.3, which was actually and lawfully used for the disposal of hazardous waste on August 6, 1980.

(e) If the owner of a hazardous waste disposal facility proves to the satisfaction of the department that a buffer zone of less than 2,000 feet is sufficient to protect the present and future public health and safety, the department may allow the disposal of hazardous waste onto land surrounded by a buffer zone of less than 2,000 feet.

History.—Added by Stats. 1980, Ch. 655, in effect January 1, 1981. Stats. 1984, Ch. 1736, in effect September 30, 1984, added "(a)" before "in addition", substituted "easement, covenant, restriction, or servitude" for "restrictive covenant" in the first and second sentences, and substituted "easement, covenant, restriction, or servitude" for "covenant" in the fourth, sixth, seventh, and eighth sentences therein; added subdivisions (b), (c), and (d); and made other nonsubstantive changes. Stats. 1989, Ch. 906, in effect January 1, 1990, deleted "In addition to any other condition of a hazardous waste facilities permit imposed by the department pursuant to this chapter, the department may impose a requirement for" after "(a)" and added the text after "(a)" through "that requires" in subdivision (a)(2), added "or grant of interim status" after "subject to the permit" in subdivision (a)(2), added subdivision (b) commencing with the former second sentence of subdivision (a), added "imposed pursuant to subdivision (a)" after "or servitude" in the first sentence of subdivision (b), added "office of the" after "owner in the", "recorder in each county" after "county", and "all, or a portion of," before "the land is located" in the second sentence of subdivision (b), added the second paragraph in subdivision (b) commencing with the former sixth sentence of subdivision (a), added "and recorded so as to provide constructive notice" after "pursuant to this section" in the second sentence of the second paragraph of subdivision (b), substituted subdivision letters (c), (d) and (e) for former subdivision letters (b), (c) and (d), substituted "(d)" for "(c)" and "(e)" for "(d)" in the first sentence of subdivision (c), and substituted "(c)" for "(b)" in the first sentence of subdivision (d).

Note.—Section 25 of Stats. 1984, Ch. 1736, provided no payment by state to local governments because of this act, however, a local agency or school district may pursue any remedies to obtain reimbursement.

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Article 11. Hazardous Waste Disposal Land Use

25229. Designation of land as hazardous waste property or border zone property. (a) If, after the hearing, the director makes the decision that the subject land should not be designated a hazardous waste property or border zone property, the director shall issue that decision in writing and serve it in the manner provided in subdivision (c).

(b) If, after the hearing, the director makes the decision, upon a preponderance of the evidence, including any evidence developed at any time prior to the hearing, that the land should be designated a hazardous waste property or a border zone property, the director shall issue that decision in writing, which shall identify the subject land, or portion thereof, by street address, assessor's parcel number, or legal description and the name of the owner of record, contain findings of fact based upon the issues presented, including the reasons for this designation, the substances on, under, or in the land, and the significant existing or potential hazards to present or future public health and safety, and order every owner of the designated land to take all of the following actions:

(1) Execute before a notary a written instrument which imposes an easement, covenant, restriction, or servitude, or any combination thereof, as appropriate, upon the present and future uses of the land pursuant to Section 25230. The written instrument shall also include a copy of the director's decision.

(2) Return the executed instrument to the director within 30 days after the decision is delivered or mailed. Within 10 days after receiving the instrument, the director shall execute the written instrument and return the instrument to the owner.

(3) Record the written instrument pursuant to Section 25230 within 10 days after receiving the written instrument executed by the director, as specified in paragraph (2).

(4) Return the recorded written instrument to the director within 10 days after the owner records the instrument, as specified in paragraph (3).

(c) Copies of the determination shall be delivered or sent by certified mail to the owner of the property, the legislative body of the city or county in whose jurisdiction the land is located, and any other persons who were served pursuant to Section 25222 or who were permitted to intervene in the proceeding pursuant to Section 25226.

(d) Failure or refusal to comply with any order issued pursuant to this section shall be treated in the manner provided by Article 12 (commencing with Section 11455.10) of Chapter 4.5 of Part 1 of Division 3 of Title 2 of the Government Code.

History.—Added by Stats. 1980, Ch. 1161, in effect January 1, 1981. Stats. 1984, Ch. 1736, in effect September 30, 1984, completely revised section. Stats. 1989, Ch. 906, in effect January 1, 1990, substituted "makes the decision" and "that" for "determines" and "a" after "hearing, the director" and "director shall issue" in subdivisions (a) and (b), and added a comma after "decision in writing" in subdivision (b). Stats. 1995, Ch. 938, in effect January 1, 1996, operative July 1, 1997, substituted "Article 12 . . . Title 2" for "Section 11525" after "provided by" in subdivision (d).

Note.—Section 25 of Stats. 1984, Ch. 1736, provided no payment by state to local governments because of this act, however, a local agency may pursue any remedies to obtain reimbursement.