Covenant Regarding Real Property 2018-0056405RECORDING REQUEST BY:
CITY OF POWAY
WHEN RECORDED MAIL TO
CITY CLERK
CITY OF POWAY
P O BOX 789
POWAY CA 92074.0789
DOC# 2018-0056405
111111 IIIII IIIII IIIII IIII 111111 IIIII IIIII IIIII IIIII IIIII IIIII IIII IIII
Feb 12, 2018 04:31 PM
OFFICIAL RECORDS
Ernest J. Dronenburg, Jr.,
SAN DIEGO COUNTY RECORDER
FEES: $125.00 (SB2 Atkins: $75.00)
(This space for Recorder's Use)
APN: 275-271-32
MCUP 16-003
COVENANT REGARDING REAL PROPERTY
PAGES: 13
Dawn and Alan McEwan ("OWNER" hereinafter) is the owner of real property commonly known as
13775 Highlands Terrace ("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) 16-003 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In the event that MCUP 16-003 expires or is rescinded by City Council, or the OWNER terminates
the use permitted by MCUP 16-003, upon the request of the OWNER the CITY shall expunge this
Covenant from the record title of the PROPERTY and MCUP 16-003 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.
Dated:
Dated: L J
OWNER OR AUTHORIZED AGENT:
AT-aii c wa (Notarize)
J
Dawn McEwan e (Notarize)
! CITY
Dated: / 2 % By:
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CALIFORNIA ALL- PURPOSE
CERTIFICATE OF ACKNOWLEDGMENT
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 ` i E }
On Z 01 before me
ereinsen name an eo co mer
personally appeared � �G rni �i �% / J�Gr/�L/ fin" ty), ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he4ho/they executed the same in his�heir authorized capacity(ies), and that by
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which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
DENNIS DEAN BUTTS
ES my hon offi ' seal. v Commission S 2896781
Notary Puhlic - California z
San Diego County -
My Camra.
Expires Jan 1 i,
otary Public Signature (Notary Public Seal)
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EXHIBIT A
Legal Description
For APN/Parcel ID(s): 275-271-32-00
PARCEL A:
PARCEL 4 OF PARCEL MAP NO. 14000, IN THE CITY OF POWAY, COUNTY OF SAN DIEGO, STATE
OF CALIFORNIA, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY,
OCTOBER 29, 1985 AS FILE NO. 85-404022 OF OFFICIAL RECORDS
PARCEL B-
AN EASEMENT AND RIGHT OF WAY FOR INGRESS AND EGRESS, ROAD AND UTILITY
PURPOSES, INCLUDING BUT NOT LIMITED TO ELECTRIC POWER, TELEPHONE, GAS, WATER,
SEWER AND CABLE TELEVISION LINES AND APPURTENANCES THERETO, OVER, UNDER,
ALONG AND ACROSS THOSE PORTIONS OF PARCELS 1 AND 2 OF PARCEL MAP NO. 14000, IN
THE CITY OF POWAY, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, FILED IN THE OFFICE OF
THE COUNTY RECORDER OF SAN DIEGO COUNTY, OCTOBER 29, 1985, AS FILE NO. 85-404022
OF OFFICIAL RECORDS, LYING WITHIN THE "PROPOSED 40 FOOT ROAD AND UTILITY
EASEMENT' AS DELINEATED AND DESIGNATED ON SAID PARCEL MAP.
EXHIBIT B
RESOLUTION NO. P-17-21
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
POWAY, CALIFORNIA, APPROVING MINOR
DEVELOPMENT REVIEW APPLICATION 16-030 AND
MINOR CONDITIONAL USE PERMIT 16-003 ASSESSOR'S
PARCEL NUMBER 275-271-32
WHEREAS, Minor Development Review Application 16-030 and Minor Conditional
Use Permit (MCUP) 16-003 were submitted by William C. Yen, Applicant, for a proposal
to construct a recreational court with eight lights on a residential property located at 13775
Highlands Terrace, in the Rural Residential -B (RR -B) zone; and
WHEREAS, on December 5, 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 for MDRA 16-030, in accordance with PMC 17.52.010
Purpose of Development Review, are made as follows:
A. The recreational court has been designed to be visually compatible with
surrounding residential development, to minimize landform alteration, and
conform to City zoning, development and grading standards. Therefore, the
project respects and recognizes the interdependence of land values and
aesthetics to the benefit of the City.
B. The project has been designed to minimize impacts on surrounding residential
development by utilizing dark colored fencing materials and installing landscaping
to screen the recreational court in a manner that is compatible with surrounding
development. Therefore, the proposed development respects the public concerns
for the aesthetics of development, and encourages the orderly and harmonious
appearance of structures and property within the City.
C. The granting of the MDRA would not be materially detrimental to the public health,
safety or welfare within the community since the proposed development will
comply with grading and storm water treatment requirements required to install
the recreational court.
Resolution No. P-17-21
Page 2
D. The project has been designed to be consistent with development in the
surrounding residential area by dark colored fencing materials and will provide
landscaping to screen the proposed recreational court. Therefore, the proposed
development respects the public concerns for the aesthetics of development.
E. The project will not have an adverse effect on the aesthetics, health and safety,
or an architecturally -related impact upon adjoining properties, as the recreational
court is consistent with other recreational courts in the surrounding residential
neighborhood and is compatible with nearby residential development.
F. The design and improvements of the proposed lighted recreational court are
consistent with all elements of the Poway General Plan, as well as the project
conforms with the provisions of the Zoning Code.
Section 3: The findings, pursuant to Section 17.48.070 of the Poway Municipal
Code (PMC), to approve MCUP 16-003 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.
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.
Resolution No. P-17-21
Page 3
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.
J. A lighted recreational court is an allowable accessory use in the RR -B 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.
Section 4: The City Council hereby approves MDRA 16-030 and MCUP 16-003,
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
Resolution No. P-17-21
Page 4
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 MDRA and 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 16-003 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 16-003 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.
H. Prior to issuance of a Grading Permit, the applicant shall comply with the following:
(Engineering)
1. Applicant shall incorporate Low Impact Development (LID) design features
into the site development. These shall be clearly shown and identified on
the site plan and be appropriately sized for the proposed level of
development.
2. Submit a precise grading plan for the development prepared on a City of
Poway standard sheet at a scale of 1" = 20', unless otherwise approved by
the City project engineer. Submittal shall be made to the Department of
Development Services Engineering Division for review and approval. The
grading design shall be 100 percent complete at the time of submittal, ready
for approval and issuance of permit. Incomplete submittals will not be
accepted. All materials as required by Chapter 16.48 of the PMC shall be
Resolution No. P-17-21
Page 5
submitted. All existing and proposed easements within the project site shall
be shown on the grading plans.
3. A drainage study addressing the impacts of the 100 -year storm event
prepared by a registered Civil Engineer is to be submitted and approved.
The study shall evaluate existing and proposed hydrologic and hydraulic
conditions to the satisfaction of the City project engineer.
4. Water Quality Control — Design and Construction
The project shall comply with the City and Regional Water Quality Control
Board stormwater requirements. The project is considered a Priority
Development Project and will be subject to all City and State requirements.
A Storm Water Quality Management Plan (SWQMP) prepared by a
registered Civil Engineer is to be submitted and approved.
a. Provide two copies of an Operation & Maintenance (O&M) plan in
accordance with Chapter 16.104 of the PMC, and a signed PDF
version.
b. Property owner shall execute an approved Storm Water
Management Facilities Maintenance Agreement accepting
responsibility for all structural BMP maintenance, repair and
replacement as outlined in the Operations and Maintenance plan.
The operation and maintenance requirements shall be binding on the
land throughout the life of the project as outlined in Section 16.104
of the PMC.
5. Grading securities in the amount and form described in Section 16.46 of the
PMC shall be posted with the City prior to grading plan approval. This will
include a minimum cash security of $2,000 in all instances.
6. Any existing and proposed public easements shall be depicted on the
grading plans. Any proposed public easement dedications shall be
submitted prior to grading permit issuance.
7. Any private improvements within any publicly held easement or right-of-way
may require an encroachment agreement as determined necessary by the
City Engineer. All necessary encroachment agreements shall be approved
and executed prior to grading permit issuance.
8. Following approval of the grading plans, posting of securities and fees, and
receipt of four copies of the approved plans, the applicant shall attend a pre -
construction meeting at the Department of Development Services. The
scheduling request shall be submitted on a City standard form available
from the City's project engineer.
9. Construction staking is to be installed and inspected by the Engineering
Inspector prior to any clearing, grubbing or grading. As applicable, provide
Resolution No. P-17-21
Page 6
two copies of a written certification, signed and sealed in accordance with
the Business and Professions Code, by the engineer of record stating that
all protected areas have been staked in accordance with the approved
plans.
10. Landscape and irrigation plans shall be submitted prior to the issuance of
the Grading Permit. The project site shall be landscaped and irrigated in
compliance with the City of Poway Landscape and Irrigation Design Manual,
Chapter 17.41 PMC, and all other applicable standards in effect at the time
of landscape and irrigation plan check submittal.
The landscape and irrigation plan submittal is a separate submittal from
other project plan check submittals, and is made directly to the Planning
Division. Landscape and irrigation plan review fees are required and are
the responsibility of the applicant.
a. The plans for landscaping shall, at minimum, show irrigation, and
sizes and species for Fire Fuel Management Zones as required by
the Fire Marshal, and all manufactured slopes steeper than 5:1.
b. The plans shall show landscaping to be installed between the fence
and property line. Landscaping shall consist of 15 -gallon or larger
sized evergreen trees and 5 -gallon evergreen shrubs installed
adjacent to the fence around the sports court to reduce visibility from
surrounding properties. It shall include fast-growing evergreen
canopy type trees, planted one each adjacent to light poles so as to
obscure views of the pole and light from neighboring properties.
Dense screening planting is required to be installed in the setback
area adjacent to the outside of the court fencing, to the satisfaction
of the Director of Development Services.
C. The plans shall provide for landscaping and irrigation of areas that
have been previously disturbed.
d. If construction does not commence within 90 days of completion of
grading, all manufactured slopes steeper than 5:1 shall be
hydroseeded and irrigated to the satisfaction of the Director of
Development Services.
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 fencing and lighting structures
that exceed six (6) feet in height. An Electrical Permit shall be obtained for
the proposed recreational court lighting.
2. The site shall be developed in accordance with the approved grading plans
on file in the Development Services Department and the conditions
contained herein. Grading of the lot shall be in accordance with the Uniform
Resolution No. P-17-21
Page 7
Building Code, the City Grading Ordinance, the approved grading plan, the
approved soils report, and grading practices acceptable to the City.
3. Erosion control shall be installed and maintained by the developer from
October 1 to April 30. The developer shall maintain all erosion control
devices throughout their intended life.
4. Applicant shall obtain a Grading Permit and complete rough grading of the
site. The grading shall meet the approval of the Engineering Inspector and
the project's geotechnical engineer. Following completion of rough grading,
please submit the following:
a. Three copies of certification of line and grade for the lot, prepared by
the engineer of work.
b. Three copies of a soil compaction report for the lot, prepared by the
project's geotechnical engineer.
The certification and report are subject to review and approval by the City
5. Prior to start of any work within a City -held easement or right-of-way, a
Right -of -Way Permit shall be obtained from the Engineering Division of the
Development Services Department. All appropriate fees shall be paid prior
to permit issuance.
6. 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 indicating that the lighting will be shielded from the adjacent
properties, to the satisfaction of the Director of Development
Services.
Resolution No. P-17-21
Page 8
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.
7. Landscape Plan — The plan submitted prior to the issuance of a grading
permit shall be approved prior to issuance of a Building Permit.
Prior to final inspection approval:
The site shall be developed, and the building elevations shall be constructed
in accordance with the approved plans on file in the Development Services
Department and the conditions contained herein.
A final inspection from appropriate City departments will be required.
All existing and proposed utilities or extension of utilities required to serve
the project shall be installed underground. No extension of overhead
utilities shall be permitted.
The drainage facilities, slope planting measures, and all utility services shall
be installed, and completed by the property owner, and inspected by the
Engineering Inspector for approval. All new utility services shall be placed
underground.
4. An adequate drainage system around the new pad capable of handling and
disposing all surface water shall be provided to the satisfaction of the
Engineering Inspector.
The applicant shall repair, to the satisfaction of the City Engineer, any and
all damages to public improvements caused by construction activity from
this project.
6. After completion of all work, record drawings, signed by the engineer of
work, shall be submitted to Development Services for review prior to a
request of occupancy, per Section 16.52.130B of the Grading Ordinance.
Approval of record drawings is required prior to issuance of occupancy and
release of grading securities. Initial submittal of record drawings at least
three weeks prior to a request for occupancy is recommended.
Landscaping and irrigation shall be installed per the approved landscape
plans.
Resolution No. P-17-21
Page 9
8. 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. The lighting contractor shall certify that all light fixtures have been
designed, constructed, mounted light shields installed, and
maintained such that the maximum illumination intensity measured
at the property line shall not exceed one-half foot-candle above
ambient light levels.
K. Upon establishment of the proposed use, pursuant to MDRA 16-030 and MCUP
16-003, the following shall apply:
Pursuant to 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. The plant materials along the recreational court fence installed per the
approved landscape plan shall be maintained in a flourishing manner to the
satisfaction of the Director of Development Services.
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 5: The approval of MDRA 16-030 and MCUP 16-003 shall expire on
December 5, 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 6: 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.
PASSED, ADOPTED AND APPROVED by the City Council of the City of Poway,
California, at a regular meeting this 5th day of December 2017.
C
Steve Vaus, Mayor
Resolution No. P-17-21
Page 10
ATTEST:
i
gahcyNelfffeld, CMC, City Clerk
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-17-21 was duly adopted by
the City Council at a meeting of said City Council held on the 5th day of December 2017,
and that it was so adopted by the following vote:
AYES: CUNNINGHAM, GROSCH, MULLIN, LEONARD, VAUS
NOES: NONE
ABSENT: NONE
DISQUALIFIED: NONE
Ninc(/ �
Nan N of Id, CMC, City Clerk
City of Poway