This section applies to all development.
(A) Drainage and utility easements. All developments submitted for approval must allocate areas for drainage and utility easements. All easements and corresponding utility location plans must be complete and approved prior to the final approval of any plan. When located between lots, easements should be centered on the lot line so each lot is encumbered by half the easement width, unless otherwise approved by the Administrator or the appropriate utility provider. Before determining the location of easements, the plan must be discussed with the local public utility companies to assure proper placement and installation of such services. No improvements (e.g., accessory buildings, buildings, driveways, fences, retaining walls, structures) are permitted within a drainage and utility easement, unless otherwise granted an encroachment permit.
(B) Surface drainage. If any stream or necessary surface drainage course is within the development area, an easement is established along all sides of the drainage course according to the County Surveyor or Indiana law if a regulated drain, or 20 feet per side (measured from the top of bank) if not a regulated drain. The easement is for widening, deepening, sloping, improving, or protecting the stream or surface drainage course.
(C) Easement instrument specifications. Where an easement is required by this chapter but the standards for the easement type are not specified, or an easement is required per a commitment or condition of approval, then the property owner ("grantor") must execute the easement instrument in favor of the appropriate party or entity ("grantee"). The instrument must:
(1) Specify the docket numbers of the complete applications of the associated with the easement;
(2) Specify the activities the grantee is authorized to perform in the easement;
(3) Specify the activities the grantor is prohibited from performing in the easement;
(4) Be binding on all heirs, successors, and assigns to the property where the easement is located;
(5) Be enforceable by the grantee and the town;
(6) Specify other specially affected persons and classes of specially affected persons entitled to enforce the easement;
(7) Provide for modification in the manner stipulated in this chapter;
(8) Be cross-referenced to the most recently recorded deed to the property where the easement is to be established;
(9) Include a metes and bounds description of the easement;
(10) Be signed by an authorized representative of the property owner of record granting the easement and by an authorized representative of the grantee accepting the easement.
(D) Easement certificate.
(1) When a secondary plat is being recorded, the applicant may print an easement certificate on the secondary plat, the content of which has been approved by the Administrator or Town Council.
(2) If a declaration of covenants, conditions, and restrictions is included or cross-referenced on the secondary plat, an easement certificate must be clearly separate from, and not incorporated into, the declaration of covenants, conditions, and restrictions.
(E) Cross-access easements.
(1) Easement instrument specifications. When required by this chapter, each property owner ("grantor") must execute a cross-access easement instrument in favor of the adjoining property owner ("grantee"). The instrument must:
(a) Specify the docket numbers of the complete applications and/or the project numbers of the permits associated with the easement;
(b) Grant the public the right to utilize the easement for purposes of accessing adjoining parking facilities;
(c) Prohibit the parking of vehicles within the easement;
(d) Prohibit any person from placing any obstruction within the easement;
(e) Be binding on all heirs, successors, and assigns to the properties where the easement is located;
(f) Be enforceable by each party to the easement and by the town;
(g) Specify any other specially affected persons and classes of specially affected persons that are entitled to enforce the easement;
(h) Provide for modification or termination in the manner stipulated in this subchapter;
(i) Be cross-referenced to the most recently recorded deeds to the properties where the easement is to be established;
(j) Include a metes and bounds description of the easement;
(k) Be signed by an authorized representative of each property owner granting the easement and by an authorized representative of each property owner accepting the easement.
(2) Cross-access easement certificate. When a secondary plat is being recorded, the applicant may print the following cross-access easement certificate on the plat: "There are shown on this instrument areas designated as 'Cross-Access Easement' or abbreviated as 'C-A.E.' Such easements are established in favor of the adjoining property owner ('grantee') and grant the public the right to enter the easement for purposes of accessing adjoining parking facilities. These easements prohibit any person from parking vehicles within the easement and prohibit the property owners or any other person from placing any obstruction within the easement. These easements are binding on all heirs, successors, and assigns to the property where they are located. The grantee or the town may enforce the provisions of the easement. [ ] is also entitled to enforce the provisions of the easement. The easement may only be modified or vacated in the manner stipulated in the Bargersville Development Code, or its successor ordinance."
(a) The dedication and acceptance of easements shown on a recordable instrument must be accomplished via a certificate of dedication signed by the property owner, and a certificate of acceptance signed by the grantee or its agent.
(b) If a declaration of covenants, conditions, and restrictions is included on the secondary plat, then the cross-access easement certificate be clearly separate from, and not incorporated into, the declaration of covenants, conditions, and restrictions.
(F) Private street easements.
(1) Easement instrument specification. When required by this chapter, the property owner ("grantor") must execute a private street easement instrument in favor of the owner of the lot ("grantee") to which the private street provides access. The instrument must:
(a) Specify the docket numbers of the complete applications and/or the project numbers of the permits associated with the easement;
(b) Grant the grantee the right to access the easement to access their lot;
(c) Specify the grantee's financial responsibilities with respect to the alteration, repair, maintenance, and removal of the improvements;
(d) Prohibit any person from placing any obstruction within the easement;
(e) Require the private street be built to the standards of the town;
(f) Be binding on all heirs, successors, and assigns to the property where the easement is located;
(g) Be enforceable by the grantee and the town;
(h) Specify other specially affected persons and classes of specially affected persons entitled to enforce the easement;
(i) Provide for modification or termination in the manner stipulated in this subchapter;
(j) Be cross-referenced to the most recently recorded deeds to the properties where the easement is to be established;
(k) Include a metes and bounds description of the easement;
(l) Be signed by an authorized representative of each property owner granting the easement and by an authorized representative of each property owner accepting the easement;
(m) Include the following language: "The property owner expressly covenants and warrants on behalf of itself and all future owners of lots within this subdivision, because the streets are private, that all maintenance, repairs and replacement now and forever must be undertaken at the expense of the lot owners according to the terms and conditions set forth in the owners association bylaws and articles. No governmental entity has any duty or responsibility to maintain, repair or replace any private street."
(2) Private street easement certificate.
(a) When a secondary plat is being recorded, the applicant may print the following easement certificate on the plat: "There are shown on this instrument areas designated as 'Private Street Easement' or abbreviated as 'P.S.E.' Such easements are hereby established in favor of the adjoining property owners ('grantee') and grant the grantee the right to enter the easement for purposes of accessing their lot. These easements prohibit the property owners or any other person from placing any obstruction within the easement. These easements are binding on all heirs, successors, and assigns to the property where they are located. The grantee or the town may enforce the provisions of the easement. [ ] is also entitled to enforce the provisions of the easement. The easement may only be modified or vacated in the manner stipulated in the Bargersville Development Code, or its successor ordinance."
(b) In addition, the secondary plat must include the following language: "The subdivider expressly covenants and warrants on behalf of itself and all future owners of lots within this subdivision that because the streets are private all maintenance, repairs and replacement now and forever must be undertaken at the expense of the lot owners according to the terms and conditions set forth in the owners association bylaws and articles. The subdivider, and their successors and assignees, hereby waive all rights to petition a governmental entity to be responsible for the maintenance and ownership of such private streets. No governmental entity has any duty or responsibility to maintain, repair or replace any private street."
(c) The dedication and acceptance of easements shown on a recordable instrument must be accomplished via a certificate of dedication signed by the property owner, and a certificate of acceptance signed by the grantee or its agent.
(d) If a declaration of covenants, conditions, and restrictions is included on the secondary plat, then the private street easement certificate must be clearly separate from, and not incorporated into, the declaration of covenants, conditions, and restrictions.
(G) Shared driveway easements.
(1) Easement instrument specifications. When required by this chapter, each property owner ("grantor") must execute a shared driveway easement instrument in favor of the adjoining property owner ("grantee"). The instrument must:
(a) Specify the docket numbers of the complete applications and/or the project numbers of the permits associated with the easement;
(b) Grant the adjoining property owners the right to access the easement to maneuver vehicles;
(c) Specify the adjoining property owners' financial responsibilities with respect to the alteration, repair, maintenance, and removal of the improvements;
(d) Prohibit any person from placing any obstruction within the easement;
(e) Be binding on all heirs, successors, and assigns to the properties where the easement is located;
(f) Be enforceable by the parties to the easement and the town;
(g) Specify other specially affected persons and classes of specially affected persons entitled to enforce the easement;
(h) Provide for modification or termination in the manner stipulated in this subchapter;
(i) Be cross-referenced to the most recently recorded deeds to the properties where the easement is to be established;
(j) Include a metes and bounds description of the easement;
(k) Be signed by an authorized representative of each property owner of record granting the easement and by an authorized representative of each property owner accepting the easement.
(2) Shared driveway easement certificate.
(a) When a secondary plat is being recorded, the applicant may print the following shared driveway easement certification the plan: "There are shown on this instrument areas designated as 'Shared Driveway Easement' or abbreviated as 'S.D.E.' Such easements are hereby established in favor of the adjoining property owners ('grantee') and grant the grantee the right to enter the easement for purposes of maneuvering vehicles. The easement prohibits the property owners or any other person from placing any obstruction within the easement. These easements are binding on all heirs, successors, and assigns to the property where they are located. The grantee or the town may enforce the provisions of the easement. [ ] is also entitled to enforce the provisions of the easement. The easement may only be modified or vacated in the manner stipulated in the Bargersville Development Code, or its successor ordinance."
(b) The dedication and acceptance of easements shown on a recordable instrument must be accomplished via a certificate of dedication signed by the property owner, and a certificate of acceptance signed by the grantee or its agent.
(c) If a declaration of covenants, conditions, and restrictions is included on the secondary plat, then the shared driveway easement certificate must be clearly separate from, and not incorporated into, the declaration of covenants, conditions, and restrictions.
(H) Subdivision sign easements.
(1) Easement instrument specification. When required by this chapter, the property owner ("grantor") must execute a subdivision sign easement instrument in favor of the subdivision's homeowners' association ("grantee"). The instrument must:
(a) Specify the docket numbers of the complete applications and/or the project numbers of the permits associated with the easement;
(b) Grant the grantee the right to alter, repair, maintain, or remove the improvements;
(c) Prohibit any person from placing any obstruction in front of, altering, removing, or otherwise impairing the improvements within the easement;
(d) Be binding on all heirs, successors, and assigns to the property where the easement is located;
(e) Be enforceable by the grantee and the town;
(f) Specify other specially affected persons and classes of specially affected persons entitled to enforce the easement;
(g) Provide for modification or termination of the easement in the manner stipulated in this chapter;
(h) Be cross-referenced to the most recently recorded deed to the property where the easement is to be established;
(i) Include a metes and bounds description of the easement;
(j) Be signed by an authorized representative of the property owner granting the easement and by an authorized representative of the grantee accepting the easement;
(2) Conflict. Subdivision sign easements must be exclusive of drainage and utility easements. Improvements within such an easement must comply with § 154.099.
(3) Subdivision sign easement certificate.
(a) When a secondary plat is being recorded, the applicant may print the following subdivision sign easement certificate on the plat: "There are shown on this instrument areas designated as 'Subdivision Sign Easement' or abbreviated as [' ']. Such easements are hereby established in favor of the [ ] Homeowners' Association ('grantee') and grant the grantee the right to enter the easement for purposes of altering, repairing, maintaining, or removing the improvements. These easements prohibit the property owner or any other person from placing any obstruction in front of, altering, removing, or otherwise impairing the improvements within the easement. These easements are binding on all heirs, successors, and assigns to the property where they are located. The grantee or the Town may enforce the provisions of the easement. [ ] is also entitled to enforce the provisions of the easement. The easement may only be modified or vacated in the manner stipulated in the Bargersville Development Code, or its successor ordinance."
(b) The dedication and acceptance of easements shown on a recordable instrument must be accomplished via a certificate of dedication signed by the property owner, and a certificate of acceptance signed by the grantee or its agent.
(c) If a declaration of covenants, conditions, and restrictions is included on the secondary plat, then the subdivision sign easement certificate must be clearly separate from, and not incorporated into the declaration of covenants, conditions, and restrictions.
(I) Tree preservation easement. When a secondary plat is being recorded and an easement is required or proposed for tree preservation, then an applicant must record an easement, or an applicant may print the following tree preservation easement certificate on the plat: "There are shown on this instrument an area(s) designated as 'Tree Preservation Easements' or abbreviated as 'T.P.E.'. These easement(s) must be regulated and maintained according to the following:
(1) Permitted activities. The following activities are permitted:
(a) Removal of invasive species (e.g., bush honeysuckle), where appropriate, including the use of professionals to apply herbicides or identify and remove such invasive species;
(b) Removal of an overabundance of combustible material (e.g., dead, fallen trees, and leaves);
(c) Removal of vines growing on and up a tree;
(d) Removal of hazardous, exotic and invasive species and/or dead, hazardous and at risk trees;
(e) Planting of native trees;
(f) Removal of trees directed to be removed by municipal, county, state or federal agencies or departments or by a public utility;
(g) Installation of minor improvements such as identification signs; provided such are designed and installed in a manner that does not removed or damage any trees to the greatest extent possible; and
(h) Installation, mowing, and maintenance of access easements paved or unpaved trails, or utility and drainage improvements; provided, however, that any such improvements and easements must be as narrow or small as reasonably possible with no blanket easements.
(2) Prohibited activities. The following activities are prohibited:
(a) Mowing any portion of existing, naturally vegetated areas;
(b) Dumping of leaves or other debris;
(c) Seeding, including grass seed, prairie mix seed, sod or the planting of any type of vegetable garden;
(d) The construction of permanent structural improvements including, but not limited to: pools, sheds, garages, fences, playground equipment, tree houses, fire pits, and other permanent or semi-permanent structures; and
(e) Active recreational activities that adversely impact the natural characteristics of the preservation area, including the placement of playground equipment, paving for basketball or tennis courts or swimming pools.
(3) All maintenance activity must be completed according to industry standards using the latest ANSI Z133.1 and A-300 approved practices and methods.
(4) Signs identifying a "Tree Preservation Area" must be posted every 1,000 feet near the perimeter of all tree preservation easements. Such signs must state "Natural Preservation Area. No mowing or spraying. Restricted Area."
(5) Any person or entity causing damage or destruction or that violates the provisions of this easement is responsible for replacing removed or damaged trees with trees (a minimum of three inches in caliper) of an equivalent caliper to the removed or damaged vegetation, and to return the damages areas of the easement to its original natural state.
(Ord. 2022-17, passed 7-19-2022)