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Covenant Regarding Real Property 2021-0769410RECORDING REQUEST BY: CITY OF POWAY WHEN RECORDED MAIL TO: CITY CLERK CITY OF POWAY P 0 BOX 789 POWAY CA 92074-0789 DOC# 2021-0769410 II II IIII III I IIII IIII IIII I IIII IIII II II II 11 III I I 1 IIII III Nov 04, 2021 04:59 PM OFFICIAL RECORDS Ernest J. Dronenburg, Jr., SAN DIEGO COUNTY RECORDER FEES: $32.00 (SB2 Atkins: $0.00) PAGES: 7 (This space for Recorder's Use) APN: 323-122-08 Project No: VAR 21-002 COVENANT REGARDING REAL PROPERTY Mark A. and Mary P. Supanchick ("OWNER" hereinafter) are the owners of real property commonly known as 13409 Neddick Avenue ("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 Variance (VAR) 21-002 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, inure to the benefit of and be binding upon Owner, future owners, encumbrances, successors, heirs, personal representatives, transferees and assigns of the respective parties, and is hereby expressly declared to be enforceable by the City of Poway. In the event that VAR 21-002 expires or is rescinded by City Council, or the OWNER terminates the use permitted by VAR 21-002 upon the request of the OWNER the CITY shall expunge this Covenant from the record title of the PROPERTY and VAR 21-002 shall be of no further force or effect. In the event of litigation 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: OWNER OR AUTHORIZED AGENT: Mark A. and Mary P. Supanchick Mar A. Supanchick CITY OF PO +t' Y: Dated: /O// Vl2( By: A R bert J. Manis, Dire or of`D eervices (Signatures must be notarized) CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 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 San Diego On October 14, 2021 Date personally appeared before me, Yvonne Mannion, Notary Public Here Insert Name and Title of the Officer Mark A. Supanchick Name(s) of Signer(s) 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 he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. YVONNE MANNION Notary Public - California San Diego County Commission # 2363699 My Comm. Expires Jul 1, 2025 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 f j Vb ate- 67K1 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: Covenant Regarding Real Property VAR21-002 Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: D Corporate Officer — Title(s): ❑ Corporate Officer — Title(s): 0 Partner — ❑ Limited ❑ General 0 Partner — 0 Limited 0 General 0 Individual ❑ Attorney in Fact 0 Individual 0 Attorney in Fact 0 Trustee 0 Guardian or Conservator 0 Trustee ❑ Guardian or Conservator 0 Other: 0 Other: Signer Is Representing: Signer Is Representing: ©2016 National Notary Association • www.NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 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 San Diego on October 14, 2021 Date before me, Yvonne Mannion, Notary Public Here Insert Name and Title of the Officer personally appeared Robert J. Manis Name(s) of Signer(s) 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 he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. YVONNE MANNION Notary Public - California San Diego County Commission # 2363699 My Comm. Expires Jul 1, 2025 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 iI 07Y i / V14 J n J OPTIONAL Signature of Notary Public 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: Covenant Regarding Real Property VAR21-002 Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) 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 0 Guardian or Conservator ❑ Other: Signer Is Representing: ©2016 National Notary Association • www.NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 EXHIBIT A The land referred to is situated in the County of San Diego, City of Poway, State of California, and is described as follows: Lot 40 of PARK POWAY UNIT NO. 1, in the City of Poway, County of San Diego, State of California, according to Map thereof No. 4307, filed in the Office of the County Recorder of San Diego County, August 19, 1959. EXHIBIT B RESOLUTION 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. 8. 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 Steve Vaus, Mayor ATTEST: Carrie Gallagher, CMC, City Clerk