Res 21-082RESOLUTION NO. 21-082
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
POWAY, CALIFORNIA, APPROVING VARIANCE 21-002 TO
ALLOW A NON -HABITABLE STRUCTURE TO OBSERVE A
REDUCED REAR AND SIDE YARD SETBACK; ASSESSOR'S
PARCEL NUMBER 323-122-08
WHEREAS, Variance (VAR) 21-002, submitted by Mark Supanchick, applicant, and Mark
and Mary Supanchick, property owners, requests approval to allow a non -habitable accessory
structure located at 13409 Neddick Avenue in the Residential Single Family 7 (RS-7) zone, to
observe an approximate 3-foot rear yard setback and a 2-foot, 6-inch interior side yard setback
when 5 feet is required for structures exceeding 8 feet in height and exceeding 120 square feet
in roof area;
WHEREAS, on October 5, 2021, the City Council held a duly advertised public hearing to
solicit comments from the public, both for and against, relative to this application;
WHEREAS, the site and elevation plans for this Variance request are stamped as "Exhibit
A" and dated October 5, 2021 on file in the Development Services Department and are included
in the Agenda Report for this matter;
WHEREAS, the City Council has read and considered the agenda report for the proposed
Variance request and has considered other evidence presented at the public hearing; and
WHEREAS, Section 17.50.070 of the Poway Municipal Code (PMC) establishes findings
required for granting a Variance.
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 involves a Variance to construct a small accessory structure.
SECTION 2: The findings, in accordance with Section 17.50.070 of the PMC, to approve
VAR 21-002, are made as follows:
A. That there are special circumstances applicable to the property (size, shape, topography,
location or surroundings), or the intended use of the property, and because of this, the
strict application of the zoning development ordinance deprives the property of privileges
enjoyed by other properties in the vicinity under identical zoning classification in that the
there are two mature trees that are preserved as a result of the current location of the non -
habitable accessory structure. The structure was built several years ago, 9 feet high, and
approximately 3 feet from the rear property line and 2-foot, 6-inches from the interior side
property line. Since the structure has a projected roof area over 120-square feet and is
above 8 feet in height, the rear yard and the interior side yard setbacks are a minimum of
5 feet. The General Plan Community Development Element Policy B.11 states that
"significant existing natural resources shall be incorporated into the design of new projects
rather than removed. These shall include, but are not limited to, large mature trees..."
Furthermore, Policies B.17, C.6, and C.23 also reiterate that existing mature trees should
Resolution No. 21-082
Page 2
be retained, when feasible, with new development.
B. Granting the Variance or its modification is necessary for the preservation and enjoyment
of a substantial property right possessed by other property in the same vicinity and zone
and denied to the property for which the variance is sought in that many of the surrounding
properties have nonconforming sheds similar in size to the proposed structure.
C. Granting the Variance or its modification will not be materially detrimental to the public
health, safety or welfare, or injurious to the property or improvements in such vicinity and
zone in which the property is located in that this is an ancillary permitted land use within
the RS-7 zone that has minor deviations proposed to the development
standards. Furthermore, the structure will not visually detract from the overall appearance
of the single-family residential neighborhood in which the property is located in that the
small and low -profile shed structure is similar in size or smaller than other non -habitable
accessory structures permitted in the RS-7 zone. The shed has existed for several years
and the City has received no complaints.
D. Granting of this Variance does not constitute a special privilege inconsistent with the
limitations upon other properties in the vicinity and zone in which such property is situated
in that other properties in the neighborhood and the RS-7 zone contain sheds and other
non -habitable accessory structures similar to the subject shed in their relationship to
property lines.
E. The granting of this Variance does not allow a use or activity which is not otherwise
expressly authorized by the zoning development regulation governing the property in that
non -habitable accessory structures are commonly used with single-family residences in
the RS-7 zone.
F. The granting of the Variance or its modification will not be incompatible with the City
General Plan in that the structure is designed as a low -profile small structure which will
complement the overall neighborhood and serve the needs of the property owner, with
negligible visual impacts. The shed is compatible with the design of the existing single-
family residence and surrounding neighborhood and retains mature trees on the property.
SECTION 3: The City Council hereby approves VAR 21-002 as shown on the site and
elevation plans incorporated herein by reference and stamped as "Exhibit A" and dated October
5, 2021 on file in the Development Services Department, except as noted herein, 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
Resolution No. 21-082
Page 3
to pay or perform any settlement unless such settlement is approved by applicant.
B. Approval of this Variance shall apply only to the subject project and shall not waive
compliance with all other 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 the applicant shall submit in writing that all
conditions of approval have been read and understood.
D. The conditions of VAR 21-002 shall remain in effect for the life of the subject structure and
shall run with the land and be binding upon future owners, successors, heirs, and
transferees of the current property owner.
E. Within 30 days of the date of this approval the property owner shall execute a Covenant
Regarding Real Property indicating the detached non -habitable accessory structure shall
never be used as habitable space; shall not have kitchen facilities, heating, or air
conditioning; and the non -habitable structure shall never be rented or leased as a separate
unit.
F The approximate 3-foot rear yard setback and 2-foot, 6-inch interior side yard setback
approved with VAR 21-002 applies to the non -habitable accessory structure only as shown
on the approved Exhibit A.
SECTION 4: 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 at a Regular Meeting of the City Council of the
City of Poway, California on the 5th day of October, 2021 by the following vote, to wit:
AYES: MULLIN, FRANK, GROSCH, LEONARD, VAUS
NOES: NONE
ABSENT: NONE
DISQUALIFIED: NONE
c
Steve Vaus, Mayor
ATTEST:
L.Jetmil
Carrie Gallagher, CMC, City Clerk