Covenant Regarding Real Property 2017-0386258I�W
RECORDING REQUEST BY
CITY OF POWAY
WHEN RECORDED MAIL TO:
CITY CLERK
CITY OF POWAY
P O BOX 789
POWAY CA 92074-0789
DOC# 2017-0386258
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Aug 24, 2017 09:38 AM
OFFICIAL RECORDS
Ernest J. Dronenburg,Jr.,
SAN DIEGO COUNTY RECORDER
FEES: $39.00
PAGES: 9
(This space for Recorder's Use)
APN: 277-230-22
MCUP 17-004
COVENANT REGARDING REAL PROPERTY
Nguyen -Le Living Trust 07-18-08 ("OWNER" hereinafter) is the owner of real property commonly
known as 18701 Heritage Drive ("PROPERTY hereinafter) and more fully described in the legal description
attached hereto as Exhibit A and made a part hereof.
In consideration of the approval of Minor Conditional Use Permit (MCUP) 17-004 by the City of
Poway ("CITY" hereinafter), OWNER hereby agrees to abide by the conditions of approval contained in
the attached Resolution (Exhibit B).
This Covenant shall run with the land and be binding upon and inure to the benefit of the future
owners, encumbrances, successors, heirs, personal representatives, transferees and assigns of the
respective parties.
In the event that MCUP 17-004 expires or is rescinded by City Council, or the OWNER terminates
the use permitted by MCUP 17-004, upon the request of the OWNER the CITY shall expunge this
Covenant from the record title of the PROPERTY and MCUP 17-004 shall be of no further force or effect.
If either party incurs costs as a result of filing a civil action to enforce the provisions of this Covenant,
the prevailing party shall be entitled to full reimbursement of all costs, including reasonable attorneys' fees,
from the other party.
OWNER OR AUTHORIZED AGENT:
Dated: W
Kelvin Nguyen _TrLtASTEE tar re)
Dated: -7 JU 1-7 By:
CITY OF POWAY:
J. Mavis, D1'rect6 bevel pment Services
�Tba
CALIFORNIAr r rr OD
A notary public or other officer completing this certificate verifies only the Identity of the Individual who signed the
document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California )
County of��a- Y1 t�ke )
On92-0111 beforeme, 5 MCbencoG)i, nd+n!+ 4 PUb(tC.
Date Here Insert Name and Title of the Officer
personally appeared
(Lely i n
Name(sJ of Signer b)
who proved to me on the basis of satisfactory evidence to be the per on whose namef is/ao
subscribe to the within Instrument and acknowledg d to me that he/sVo/thy executed the same in
his/h�/tl�r authorized capacity(io), and that by his/h�/th�r signature on the instrument the personal,
or th entity upon behalf of which the person(s1 acted, executed the instrument.
*MY
OFFICIAL SEAL
J. MCDONALD
NOTARY PUBLIC•CALIFORNIAACOMM. NO.2123043SAN DIEGO COUNTY
COMM. EXP. AUG. 11, 2019
Place Notary Seal Above
I certify under PENALTY OF PERJURY under the laws
of the State of California that the foregoing paragraph
is true and correct.
WITNESS my hand and official seal.
Signature , 'e'lZ
Signature of Notary Public
OPTIONAL
Though this section is optional, completing this information can deter alteration of the document or
fraudulent reattachment of this form to an unintended document.
Description of Attached Document
Title or Type of Document:
Number of Pages:
Document Date:
Signer(s) Other Than Named Above:
Capacity(les) Claimed by Signer(s)
Signer's Name:
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Individual ❑ Attorney in Fact
❑ Trustee ❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
Signer's Name:
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Individual ❑ Attorney in Fact
❑ Trustee ❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
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EXHIBIT "A"
Legal Description
For APN/Parcel ID(s): 277-220-32-00
Parcel 1:
Lot 32 of City of Poway Tract No. 98-02, Heritage Ranch Estates, in the City of Poway, County of
San Diego, State of California, according to Map thereof No. 14388, filed in the Office of the County
Recorder of San Diego County, May 8, 2002.
Parcel 2:
An easement and right of way for road and utility purposes, over, under, along and across Lot "F"
(commonly known as "Old Coach Drive"), Lot "H" (commonly known as "Old Coach Drive"), Lot
"N" (commonly known as "Old Coach Drive") and Lot "K" (commonly known as "Old Coach
Drive"), of City of Poway Tract No. 89-13R, The Heritage, Phase 1, Unit 1, according to map thereof
No. 13708, filed in said County Recorder's Office.
Parcel 3:
Non-exclusive easements for access, ingress, egress, inspection, maintenance, repair, drainage,
encroachment, support and for other purposes, all as described in the Declaration, and any
amendments thereto.
Exhibit B
RESOLUTION NO. P-17-11
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF POWAY, CALIFORNIA, APPROVING MINOR
CONDITIONAL USE PERMIT 17-004 ASSESSOR'S
PARCEL NUMBER 277-220-32
WHEREAS, Minor Conditional Use Permit (MCUP) 17-004 was submitted by
Nguyen -Le Living Trust/Kelvin Nguyen, Applicant, for a proposal to install eight lights on
a recreational court on a residential property located at 18701 Heritage Drive, in the Rural
Residential A (RR -A) zone; and
WHEREAS, on July 18, 2017, the City Council held a duly advertised public
hearing to solicit comments from the public, both for and against, relative to this
application.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Poway
as follows:
Section 1: The project is Categorically Exempt from the California
Environmental Quality Act (CEQA), as a Class 3 Categorical Exemption, pursuant to
Section 15303(e) of the CEQA Guidelines, in that the project proposes the construction
of accessory structures/equipment on an existing single-family residential property.
Section 2: The findings, pursuant to Section 17.48.070 of the Poway Municipal
Code (PMC), to approve MCUP 17-004 to allow the installation of eight lights on a
recreational court, are made as follows:
A. The location, size, design and operating characteristics of the proposed use are in
accord with the title and purpose of Chapter 17.48 PMC (Conditional Use Permits
Regulations), the General Plan, and the development policies and standards of the
City in that the design of the proposed recreational court lighting will meet the
required lighting type, height limit and operating hours, and will otherwise comply
with all of the relevant codes and standards of the City of Poway.
B. The location, size, design, and operating characteristics of the proposed use will
be compatible with and will not adversely affect or be materially detrimental to
adjacent uses, people, buildings, structures, or natural resources in that existing
landscaping on the adjacent properties and landscaping that will be installed
around the perimeter of the recreational court on the subject lot will reduce the
visibility of the lights from surrounding properties and light impacts to natural
resources. Additionally, the lights are required to be shielded and a dense
windscreen will be installed on the court fence which will minimize light affects.
Lastly, court light use is prohibited between the hours of 10 p.m. and 7 a.m.
Resolution No. P-17-11
Page 2
C. The PMC requires that the lighting for the recreational court be limited to a
maximum of eight lights, with a maximum height of 18 feet. Therefore, the
harmony in scale, bulk, coverage, and density of the project is consistent with
adjacent uses.
D. There are adequate public facilities, services and utilities available at the subject
site to serve the proposed use.
E. The proposed lighting will be directed to within the court boundaries, will be
shielded, and will be screened by landscaping to reduce visibility of the lights from
the surrounding properties. Therefore, there will not be a harmful effect upon
desirable neighborhood characteristics.
F. Installing the court lights will result in a temporary increase in traffic from
construction related vehicles. This generation of traffic, however, will be minor and
will not adversely impact the capacity and physical character of the surrounding
streets and/or the Circulation Element of the General Plan.
G. The site is suitable for the type and intensity of use or development that is proposed
in that a lighted recreational court is an accessory use that is permitted in a
residential zone, and the proposed lighting will be directed to shine downward
within the court boundaries, will be shielded, and will be screened by landscaping
to reduce visibility of the lights from the surrounding properties.
H. There will not be significant harmful effects upon environmental quality and natural
resources in that the project is limited in scope and built within a developed portion
of the parcel; additionally, landscaping will be installed around the perimeter of the
recreational court and a dense windscreen will be installed on the court fence
which will reduce light impacts; therefore, there will be no significant harmful effects
upon environmental quality and natural resources.
There are no relevant negative impacts of the proposed use that cannot be
mitigated.
A lighted recreational court is an allowable accessory use in the RR -A zone.
Therefore, the impacts, as described in subsections A through I of this Section,
and the proposed location, size, design, and operating characteristics of the
proposed use and the conditions under which it would be operated or maintained
will not be detrimental to the public health, safety or welfare, or materially injurious
to properties or improvements in the vicinity, nor be contrary to the adopted
General Plan.
K. That the proposed minor conditional use will comply with each of the applicable
provisions of this title, except for approved variances.
Resolution No. P-17-11
Page 3
Section 3: The City Council hereby approves MCUP 17-004, as shown on the
approved plans on file with the City, subject to the following conditions:
A. The applicant shall defend, indemnify, and hold harmless the City, its agents,
officers, and employees from any and all claims, actions, proceedings, damages,
judgments, or costs, including attorney's fees, against the City or its agents,
officers, or employees, relating to the issuance of this permit, including, but not
limited to, any action to attack, set aside, void, challenge, or annul this
development approval and any environmental document or decision. The City may
elect to conduct its own defense, participate in its own defense, or obtain
independent legal counsel in defense of any claim related to this indemnification.
In the event of such election, applicant shall pay all of the costs related thereto,
including without limitation reasonable attorney's fees and costs. In the event of a
disagreement between the City and applicant regarding litigation issues, the City
shall have the authority to control the litigation and make litigation related
decisions, including, but not limited to, settlement or other disposition of the matter.
However, the applicant shall not be required to pay or perform any settlement
unless such settlement is approved by applicant.
B. Approval of this MCUP request shall apply only to the subject project and shall not
waive compliance with all sections of the Zoning Ordinance and all other applicable
City Ordinances in effect at the time of Building Permit issuance.
C. Within 30 days of the date of this approval, and before the issuance of any permit:
(1) the applicant shall submit in writing that all conditions of approval have been
read and understood; and (2) the property owner shall execute a Covenant
Regarding Real Property. In order for the City to prepare the Covenant, the
applicant must first submit a legal description of the subject site.
D. The use conditionally granted by this approval shall not be conducted in such a
manner as to interfere with the reasonable use and enjoyment of surrounding uses.
E. The conditions of MCUP 17-004 shall remain in effect for the life of the subject use
and shall run with the land and be binding upon future owners, successors, heirs,
and transferees of the current property owner.
F. MCUP 17-004 may be subject to annual review, as determined by the Director of
Development Services, for compliance with the conditions of approval and to
address unresolved operational concerns that may have been raised during the
prior year.
G. The site shall be developed in accordance with the approved plans on file in the
Development Services Department and the conditions contained herein. A final
inspection from the appropriate City departments will be required.
Resolution No. P-17-11
Page 4
H. The applicant shall obtain a Building Permit. Prior to issuance of a Building Permit,
the applicant shall comply with the following:
1. A Building Permit shall be obtained for the lighting structures (i.e., light
poles) that exceed six (6) feet in height. An Electrical Permit shall be
obtained for the proposed recreational court lighting. The building plans
shall clearly show and identify how the project complies with the following
requirements:
a. The maximum height of the fence (measured from the finished grade
of the court) shall not exceed 10 feet.
b. The light poles shall not exceed 18 feet in height. Lighting fixtures
shall not exceed 1,000 -watts, high-pressure sodium lights as
required by Chapter 17.30 PMC. Metal halide lighting is prohibited.
C. The maximum number of lights on the court shall not exceed eight.
d. The surface area of the recreational court shall be designed, painted,
colored and/or textured to reduce the reflection of light. This
requirement shall be noted on the plans and the proposed court color
shall be noted.
e. Pursuant to PMC 17.30.020.E, the fencing, support posts, light
poles, and fixtures shall be painted a dark non -reflective color so as
to reduce their overall visibility. Vinyl -coated chain link fencing with
fence and light poles painted to match is acceptable. This
requirement shall be noted on the plans and the proposed paint color
shall also be noted.
f. Pursuant to PMC 17.30.020.C, the applicant shall submit a lighting
plan that reflects that the lighting will be shielded from the adjacent
properties, to the satisfaction of the Director of Development
Services. The plans shall show the lights designed, constructed,
mounted and maintained such that the light source is cut off when
viewed from any point above five feet measured at 10 -feet from the
edge of the court, and such that the maximum illumination intensity
measured at the limits of the property line shall not exceed one-half
foot-candle above ambient light levels.
g. To reduce light effects further, the building plans shall clearly show
and note that a dense windscreen mesh will be attached and
maintained on the court fencing.
h. The building plans shall depict and note, to the satisfaction of the
Director of Development Services, that the lighting will be on a timer
of limited duration, and that they will automatically shut off at 10:00
p.m.
2. Landscape Plan — (LP) 17-005 for the subject property was reviewed and
approved by the Development Services Department in March 2017. The
plan provides for landscaping installation around the recreational court
fence and proposes the installation of fast-growing evergreen canopy type
trees, planted one each adjacent to the proposed light poles so as to
obscure views of the pole and light from neighboring properties. All required
landscaping must comply with Section Six of the City of Poway Landscape
and Irrigation Design Manual and Chapter 15.05 PMC as it relates to fuel
management and defensible space.
Resolution No. P-17-11
Page 5
Prior to final inspection approval:
1. Required landscaping and irrigation shall be installed.
2. Written certification shall be provided from a qualified lighting installation
contractor that all lights and light fixtures have been designed and installed
in accordance with the following requirements:
a. Have been designed, constructed and mounted such that the light
source is cut off when viewed from any point above five feet
measured at 10 -feet from the edge of the court;
b. Have been designed, constructed, mounted, and light shields
installed such that the maximum illumination intensity measured at
the limits of the coastal sage scrub habitat that exists approximately
10 -feet from the edge of the court does not exceed one-half foot-
candle above ambient light levels; and
C. The required landscape and irrigation materials on the approved
Planting Plantor Landscape and Irrigation Plan shall be installed
along the recreational court fence.
Upon establishment of the proposed use, pursuant to MCUP 17-004, the following
shall apply:
1. In accordance with PMC 17.30.020.C.3, the recreational court lighting shall
be used only between 7:00 a.m. and 10:00 p.m., and an automatic timer
shall be programmed to automatically shut the lights off at 10:00 p.m.
2. Required court landscaping shall be maintained in a healthy and thriving
condition; and
3. The light standards are limited in number, size, height, and light shields,
which shall meet the requirements for shielding the light fixtures. The
maximum height of lights shall not exceed 18 feet from grade. The applicant
shall comply with the required maximum 1,000 -watt, high-pressure sodium
lighting fixtures pursuant to PMC 17.20.020.G, and shall be maintained to
the satisfaction of the Director of Development Services.
Section 4: The approval of MCUP 17-004 shall expire on July 18, 2019, at 5:00
p.m. unless, prior to that time, a Building Permit has been issued and construction on the
property in reliance on the MCUP approval has commenced prior to its expiration.
Section 5: The parties are hereby informed that the time within which judicial
review of this decision must be sought is governed by Section 1094.6 of the California
Code of Civil Procedure.
Resolution No. P-17-11
Page 6
PASSED, ADOPTED AND APPROVED by the City Council of the City of Poway,
California, at a regular meeting this 18th day of July 2017.
—Steve Vaus, Mayor
ATTEST:
WIN
STATE OF CALIFORNIA )
) SS
COUNTY OF SAN DIEGO )
I, Nancy Neufeld, City Clerk of the City of Poway, California, do hereby certify
under penalty of perjury that the foregoing Resolution No. P-17-11 was duly adopted by
the City Council at a meeting of said City Council held on the 18th day of July 2017, and
that it was so adopted by the following vote:
AYES: CUNNINGHAM, GROSCH, MULLIN, LEONARD, VAUS
NOES: NONE
ABSENT: NONE
DISQUALIFIED: NONE
Nalty P(etfeld, CMC, City Clerk
City of Poway