Conservation Easement Deed 2005-0125622
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APN 277-220-06 2005.0125622
Project Nos. MDRA 03-73 I MCUP 03-09
CONSERVATION EASEMENT DEED
NO DOCUMENTARY TRANSFER TAX DUE
THIS CONSERVATION EASEMENT DEED is made this iff day of ..)",,1"\ 2005, by Anthony M.
Dubreville and Marlene R. Dubieville, Trustees of the Dubreville Family Trust, dated July 7, 1997,
("Grantor"), in favor of City of Poway ("Grantee"), acting by and through its Development Services
Department, with reference to theJollowing facts.
RECITALS
A. Grantor is the sole owner in fee simple of certain real property in the City of Poway,
County of San Diego, State of California, more particularly described in Exhibit "A" and Exhibit "B"
attached hereto and incorporated. by this reference (the "Property").
B. The Property possesses wildlife and habitat values (collectively, "conservation values") of
great importance to the Grantee, the people of the City of Poway, the people of the State of California,
and the people of the United States.
C The Property provides high quality Coastal Sage, Scrub. Coastal Sage Scrub is the
habitat of the California Gnatcatcher; which is listed as a threatened species on the Federal Endangered
Species list. Conservation of this property therefore will preserve habitat ota protected species.
D The City of Poway is authorized to hold conservation easements for the preservation of
land in its natural, scenic, agricultural, historical: forested, or open space condition. The City of Poway
has authority to hold easements for these purposes pursuant to California Civic Code Section 815.3(b).
E. The State of California, by and through its Department of Fish and Game (CDFG), has
jurisdiction, pursuant to the Fish and Game Code Section 1802, over the conservation, protection,. and
management of fish, wildlife, native plants and the habitat necessary for biologically sustainable
populations of,those species.
F The United States Fish and Wildlife Services (USFWS) has jurisdiction over the
conservation, protection, restoration, enhancement and management of fish, wildlife and native plants
and the habitats on ,which they depend under the Endangered Species Act, 16 U.s.C. Section 1531 ef
seq. '(ESA), the Fish and Wildlife Coordination Act, 16 U.S.C. section 661-666c and other applicable laws.
G. The Biological Resources Analysis prepared by P&D Environmental, dated January
2000, for subdivision TTM 98-02, "Heritage II Estates Biological Technical Report", identified impacts to
Coastal Sage Scrub (CSS) habitat. Mitigation of impacted hab'ftai was resolved as part of the Final
EnvironmentallnipacfReport, Sth. No. 98091083, through the preservation of open space easements on
. -. -
each parcel throughout the subdivision. Open space areas were identified on the map no. 14388, filed in
the office of the County Recorder of San Diego (';ounty, California, on May 8, 2002, file number 2002-
0391382, on Lot 06, for impacts to CSS Recordation 6f Biological Conservation Easements will ensure
preservation of'areas set aside for Coastal Sage Scrub'habitat.
a5 -D,31
~ . 6410
CQ.!lser;vation Easement._
I Page 2
H. Grantor intends t()convey to Grantee the right to preserve and protect the conservation
values of the,Property in perp~tuity in..accordance with Covenants, Terms, Conditions, and Restrictions
contained herein in exchange for Grantee permitting Grantor's construction of a single-family residence
within Heritage II.Estates.
I. Grantee agrees by accepting this grant to honor the intentions of Grantor stated herein
and to preserve and to protect in perpetuity the conservation values of the property in accordance with
the terms otthis Conservation Easement for the benefit of this generation, and the generations to come.
COVENANTS. TERMS. CONDITIONS AND RESTRICTIONS
In consideration of the above recitals and the mutual covenants, terms, conditions, and
restrictions contained herein, and pursuant to California law, including Civil Code Section 815,. ef seq.,
Grantor hereby voluntarily deeds and conveys to Grantee conservation easement in perpetuity over the
Property of the nature and character and to the extent hereinafter set forth ("Easement").
1 Purpose. The purpose of this Conservation Easement is to ensure the Property will be
preserved in a natural condition in. perpetuity and to prevent any use'of the Property that will materially
impair or interfere with the conservation values of the Property Grantor intends that this Conservation
Easement will confine the use of the Property to such activities, including without limitation, those
involving the preservation and enhancement of native species and their habitat in a manner consistent
with the habitat conservation purposes of this Conservation Easement.
2. Riqhts of Grantee. To accomplish the purposes of this Conservation Easement, Grantor
hereby grants and conveys the following rights to Grantee and the State of California Department of Fish
and Game as a third party beneficiary of this easement by this Conservation Easement Deed:
(a) To preserve and protect in perpetuity the conservation values of the Property' in
accordance with this easement;
(b) To enter upon the property at reascJnable times in. order to monitor Grantor's
compliance with, and to otherwise, enforce the terms of, this Conservation Easement, including Grantor's
obligation to manage the property consistent with Grantor's duties as set forth in section 4, and for
scientific research and interpretive purposes by Grantee or its designees; and CDFG and its designees.
(c) To prevent any activity on or use of the Property that is inconsistent with the
purposes of this Conservation Easement and to require the restoration of such areas or features of the
Property that may be damaged by'any act, failure to act, or any use that is inconsistent with the purposes
of this Conservation Easement;
(d) All mineral, air and water rights necessary to protect and sustain the biological
resources of the Property; and
(e) To enforce. by means including, injunctive relief, the terms and conditions of the
Easement.
3. Prohibited Uses. Any activity on or use of the Property inconsistent with the habitat
conservation purposes of this Conservation Easement and not specifically reserved as a right of Grantor
is prohibited. Without limiting the generality of the foregoing, the following uses by Grantor, Grantor's
agents, and third. parties, are expressly prohibited unless specifically provided for through the Poway
Subarea Habitat Conservation PlanlNCCP
(a) Unseasonable watering, use of herbicides, rodenticides, or weed abatement
activities, incompatible .fire protection activities and any and all other uses which may adversely affect the
purposes of this Conservation Easement;
(b) Use of off-road vehicles; except vehicles used for property maintenance required
by the City of Poway, and then only over existing roads.
~ . ..
C(Jnservation Easement ad 6411
Page 3
(c) Grazing or surface entry for exploration or extraction of minerals;
(d) 'Erection of anyb'uilding, billboard, sign;
(e) Excavating, dredging or removing of loam, gravel, soil, rock, sand or other
material;
(f) Otherwise altering the general topography of the Property, including building of
roads or changing the grade 6f the Property;
(g) Removing, destroying, or cutting of trees, shrubs, or other vegetation, except as
required by law for (1) firebreaks, (2) maintenance of existing foot trails or roads, or (3) prevention or
treatment of disease.
(h) Planting onrees or other vegetation except by written permission from the City of
Poway
4 Grantor's Duties. Grantor shall undertake all reasonable actions to prevent the unlawful
entry and trespass by persons whose activities may degrade or harm the conservation values of the
Property In addition, Grantor shall undertake all necessary actions to protect Grantee's rights under
Section 2 of this Conservation Easement. Grantor further covenants that maintenance of the Property, to
wit: clean up of all trash and debris, shall be the Grantor's responsibility
5. Reserved Riqhts. Grantor reserves to itself, and to its personal representatives, heirs,
successors, and assigns, all rights accruing from its ownership of the Property, including the right to
engage in or to permit or invite others to engage in all uses of'the Property that are consistent with the
purposesotthis Conservation Easement.
6. Grantee's Remedies. If Grantee determines that Grantor is in violation of the terms of
this Conservation Easement'or thata violation is threatened, Grantee shall give written notice to Grantor
of such violation and demand in writing corrective action sufficient to cure the violation. Grantee shall
also notify the California Department of Fish and Game. If Grantor fails to cure the violation within thirty
(30) days after receipt of said written notice and demand from Grantee, or if the cure reasonably requires
more than thirty (30) days to complete and Grantor fails to begin the cure within the thirty (30) day periOd
or fails to continue diligently to complete the cure, Grantee may bring an action at law or in equity in a
court of competent jurisdiction to enforce the terms of this Conservation Easement, to recover any
damages to which Grantee may be entitled for violation by Grantor of the terms of this Conservation
Easement, to enjoin the violation, ex parte as necessary, by temporary or permanent injunction without
the necessity of proving either actual damages or the inadequacy of otherwise available legal remedies,
or for other equitable relief, including, but not limited to, the restoration of the Property to the condition in
which it existed prior to any such violation or injury Without limiting Grantor's liability therefore, Grantee
may apply any damages recovered to the cost of undertaking any corrective action on the Property
If Grantee, in its sole discretion, determines that circumstances require immediate action
to prevent or mitigate sig~ificant damage to the conservation values of the Property, Grantee may pursue
its remedies .under this ,paragraph without prior notice to Grantor or without waiting for the period'provided
for cure to expire: Grantee's rights under this paragraph apply equally to actual or threatened violations
of th~ terms of this..Conservation Easement. Grantor and Grantee agree that Grantee's remedies for any
violation of the terms of this Conservation Easement is the injunctive relief described in this section, both
prohibitive and mandatory, in. addition to such other relief to which Grantee may be entitled, including
specific performance of the terms of this Conservation Easement in each case, without .the necessity of
proving either actual damages or the inadequacy of otherwise available legal remedies. Grantee's
remedies described in this section shall be cumulative and shall be in ,addition to all remedies now or
hereafter existing at law or in equity, including but not limited to, the remedies set forth in Civil Code
Section 815, et seq., inclusive.
Conservation Easement DI . ..
6412
: PageA
If at any'time in the future Grantor or any subsequent transferee uses or threatens to use
such lands' for. purposes inconsistent with this Conservation Easement, notwithstanding Civil Code
Sec~on'815,7, the CaliforniaAttorney General or third-party entitles organized for conservation purposes
have standing as' interested parties in an'y proceeding affecting this Conservation Easement as against
Grantor
The California Department'of Fish and Game (CDFG) as a third party beneficiary of this
easement shall have the same rights as Grantee under this section to enforce the terms of the easement.
6.1 Costs of Enforcement. Any costs incurred by Grantee or CDFG in enforcing the
terms of this Conservation Easement against Grantor, including, but not limited to, costs of suit and
attorneys' fees, and any costs of restoration necessitated by Grantor's violation or negligence under the
terms of this Conservation Easemenrshall be borne by Grantor
6.2. Grantee's Discretion. Enforcement of the terms of this Conservation Easement
by Grantee or CDFG shalJ'be at the discretion of Grantee and CDFG, and any forbearance by Grantee or
CDFG to exercise its rights under this Conservation Easement by Grantor shall not be deemed or
construed to be a waiver by Grantee of such term or of any subsequent breach of the same or any other
term of this Conservation Easement or of any of the Grantee's rights under this Conservation Easement.
No delay or omission by Grantee or CDFG in the exercise of any right or remedy upon any breach by
Grantor shall impair such right or remedy or be construed as a waiver
6.3. Acts Bevond Grantor's Control. Nothing contained in this Conservation
Easement by Grantee shall be at the,discretion of Grantee and CDFG to bring any action against Grantor
for any injury to change in the .Property resulting from caus.es beyond Grantor's control, including, fire,
flood, storm, and earth movement, or any prudent action taken by Grantor under emergency conditions to
prevent, abate, or mitigate significant'injury to the Property resulting from such causes.
6.4 Department of Fish and Game Riqht of Enforcement. All rights and remedies
conveyed to Grantee under this Conservation Easement Deed shall extend to and are enforceable by the
Department of Fish and Game or USFWS.
7 Metal Fence,Stake Installation and Maintenance, In order to identify and demarcate the
boundaries of the Conservation Easement Deed area (property), 18770 Old Coach Way, APN 277-220-
06, within ninety days, the Grantor,shall install and maintain metal fence stakes (T-stakes painted white)
six (6) feet in height [2 feet below grade and 4 feet exposed above grade] as follows: A stake shall be
installed at the property line at the point of intersection with the easement boundaryline and also installed
at intervals of seventy-five (75) feet along the.length of the easement boundary line. The purpose of this
staking is to identity to the lot owner the boundaries of the conservatio'n easement area, and to protect in
perpetuity the conservation values and function of the Property The specific location of all required
stakes shall also be plotted on Exhibit "B" (easement plat) attached hereto.
8. Access. This Conservation Easement Deed does not convey a general right of access to
the public.
9. Costs and Liabilities. Grantor retains all responsibilities and shall bear all costs and
liabilities of any kind related to the ownership, operation, upkeep, and maintenance of the Property
9,1 Taxes. Grantor shall pay before delinquency all taxes, assessments, fees, and
charges of whatever description levied on or assessed against the Property by competent authority
(collectively "taxes"), including any taxes imposed upon, or incurred as a result of, this Conservation
Easement,ahd shall furnish Grantee and'CDFG with satisfactory evidence of payment upon request.
9.2. Hold Harmless. Grantor shall hold harmless, indemnity, and defend Grantee and
CDFG and its members, direCtors, officers, employees, agents, contractors, and their heirs, and
representatives, successors and assigns (collectively "Indemnified Parties") from and against all liabilities,
penalties, costs, losses, damages, expenses, causes of action, claims, demands, or judgments, including
without limitation, reasonati'le attorneys' fees, arising from or in any way connected with: (1) injury to or
C~nservation EasemenEDI . 6413
Page 5 the deatholany'p_erson, or physical damages to any property resulting from any act, omission, condition,
orother'rnatter related to or occurring on or about the Property, regardless of cause; (2) the obligations
specified in Sections 4,9, and 9,,1, and'(3) the existence or administration ofthis Conservation Easement.
9,3. Condemnation. The purposes of the Conservation Easement are presumed to
be the best and most necessary public use as defined at Code of Civil Procedure Section 1240.680
notwithstanding Code of Civil Procedure Sections 1240.690 and 1240,700.
10. Assiqnment This Conservation Easement may not be transferred, ass,igned, or
extinguished without the prior written approval of CDFG. Grantee may assign its rights and obligations
under this Conservation Easement only to an entity or organization authorized to acquire and hold
conservation easements pursuant to' Civil Code Section 815.3. Grantee shall require the assignee to
record the assignment in the county where the' Property is located.
11 Subsequent Transfers, Grantor agrees to incorporate the terms of this Conservation
Easement in any deed or other legal instrument by which Grantor divests itself of any interest in all or a
portion of the Property, including, without,limitation, a leasehold. interest Grantor further agrees to give
written notice to Grantee or the CDFG of the intent to transfer any interest at least forty-five (45) days
prior to the date of such transfer Grantee shall have the right.to prevent subsequent transfers in which
prospective subsequentclaimants oltransferees are not given notice ofthe covenants, terms, conditions
and restrictions of this Conservation Easement. The failure of Grantor or Grantee to perform any act
provided in this section shall not impair the validity of this Conservation Easement or limit its enforceability
in any way Grantor shall not grant additional easements or other interests in the property without the
prior written authorization of Grantee.and CDFG.
12. Notices. All notices. demands, requests, consents, approvals, or communications from
one party to another shall be personally delivered or sent by fa<;:simile to the persons set forth below or
shall be deemed given five (5) days after deposit in the United States mail, certified and postage prepaid,
return receipt requested and addressed as follows, or at such other address as any party may from time
to time specify to the other parties' in writing:
To Grantor' Anthony M. and Marlene-R. Dubrevilie
Trustees of the Dubreville Family Trust
18770 Old Coach Way
Poway, CA 92064
To Grantee: City of Poway
POBox 789
Poway CA 92074
With a copy to: Department of Fish and Game
Natural Community Conservation Planning
4949 Viewridge Avenue
San Diego, CA 92123
The parties agree to accept facsimiie signed documents and agree to rely upon such
documents as iltheybore original signatures. Each party agrees to provide to the other parties, within
seventy-two (72) hou'rs after transmission of a facsimile, docu'ments that bear the original signatures,
13. Amendment. This Conservation Easl)ment may be amended by Grantor and Grantee
only by mutual written agreement approved in writing by CDFG Any such amendment shall be
consistent with the purposes of this Conservation Easement and, shall not affect its perpetual duration.
Any such amendment shall be recorded in the official records of San Diego County, State of California.
14 Recordation. Grantor shall promptly record this instrument in the official records of San
Diego County, California and immediately notify the Grantee and CDFG through the mailing of a
confirmed copy onhe recorded easement.
Conservation Easement D! . 6414
Page 13 .
15. General Provisions.
(a) Controllinq Law The interpretation and performance of this Conservation
Easement shall oe.governed bythe'laws of the State of California.
(b) Liberal Construction. Any general rule of construction to the contrary
notwithstanding, this Conservation Easement shall be liberally construed in favor of the deed to effect the
purposes of this Conservation Easement and the policy and purpose of Civil Code Section 815, ef seq. If
any provision in this instrument is fou'ndto be ambiguous, an interpretation consistent with the purposes
of this Conservation Easement that would render the provision valid shall be favored over any
interpretation that would render it invalid,
(c) Severabilitv If a court of competent jurisdiction voids or invalidates on its face
any provision of this Conservation Easement Deed, s'uch action shall not affect the remainder of this
Conservation Easement Deed: If a court of competent jurisdiction voids or invaiidates the application of
any provision of this Conservation Easement Deed to a person or circumstance, such action shall not
affect the application of the provision to other persons or circums'tances.
(d) Entire Adreement. This instrument sets forth the entire agreement of the parties
with respect to the Conservation Easement and supersedes all prior discussions, negotiations,
understandings, or agreements relating to the Conservation Easement, all of which are merged herein,
No alteration or variation of this instrument shall be valid or binding unless contained in an amendment in
accordance with Section 13.
(e) No Foneiture. Nothing contained herein will result in a forfeiture or reversion of
Grantor's title in any respect.
(f) Successors. The covenants, terms, conditions, and restrictions of this
Conservation Easement Deed shall be binding upon, and inure to the benefit of, the parties hereto and
their respective personal representatives, heirs, successors, and assigns and shall continue as a
servitude running in perpetuity with the Property These covenants hereunder benefiting Grantee. shall
also benefit CDFG.
(g) Termination of Riqhts and Obliqations.A party's rights and obligations under this
Conservation Easement shall terminate only upon transfer of the party's interest in the Conservation
Easement or Property, except that liability for acts or omissions occurring prior to transfer shall survive
transfer
(h) Captions. The captions in this instrument have been inserted solely for
convenience of reference and are not a part of this instrument and shall have no effect upon its
construction or interpretation.
(i) Counterparts. The parties may execute, this instrument in two or more
counterparts, which shall, in the aggregate, be signed by 'Grantor and Grantee; each counterpart shall be
deemed an original instrument as against any party who has signed it. In the event of 'any disparity
between the counterparts produced, the recorded counterpart shall be controlling.
U) Modification. This Easement is not subject to modification or amendment except
in writing and signed by Grantor, Grantee and CDFG or their permitted successors or assigns.
(k) Exhibits. All Exhibits referred 10 in this Easement are attached and incorporated
herein by reference.
(I) Appropriations. The duty of the City of Poway and CDFG to carry out their
respective obligations under this Easement shall be subjeCt to the availability of appropriate funds.
(m) Effective Date. This Easement shall be effective upon recording with the San
Diego County Recorder's Office.
Cqnservation EasemenfDI . 6415
Page 7
1i'J WITNESS THEREOF:, Grantor and Grantee have entered into this'Conservation'Easement the
day. and year first.above written,
GRANTOR:
Anthony M. Dubreville and Marlene R. Dubreville, Trustees of the Dubreville Family Trust, dated
July 7, 97, roperty 0 ners By~~?a~
By'
Marlene R. Dubreville
Approved as to Form:
Office of the City Attorney
Tamara Smith, City Attorney
By' CfL~bvA-
Tamara Smith, City Attorney
M:lplanninglpeggylmcup 20031mcup 03,009mdra 03,731mcup 03,73 mcup 03,009 Cons Easemenl.doc
. . 6416
CALIFORNIA ALL.PURPOSE ACKNOWLEDGMENT
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County 01 Jk0 i) } ss. :
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I personally appeared
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ljl(proved to me on the basis of satisfactory
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to be the person(s) whose name(s) )S'/are
I' ~ - - - - - - - - - - - - f subscribed to the within inslrument and
I @ PHYlLIS SHINN acknowledged to me that 1>\lls'l,Mhey executed
I ,'-" Commission # 1450304 the same in fuSlhBfltheir authorized
I. ~ ,-e_ Nolory PublIc, CalIlomla I capacity(ies). and th;'t by l)iSIh'llf/their I
1 ~. .San. . ~Counly I signature(s) on the instrument the person(s). or I
MyComm! ExpInjsNov9. 2007 the entity, upon behalf of which the person(s)
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I Sign~ture of Notary Public !~
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I OPTIONAL
l Though the information below is nor required by law, it may prove valuable to persons relying on the document and could prevent
l fraudu,'ent removal and reattachment of this form to another document.
1 Description of Attached Document ':
, Title or Type 01 Document:
I
I, Document Date: Number 01 Pages: 1
'I
Signer(s) Other Than Named Above:
I' 'I
1 Capacity(ies) Claimed by Signer ':
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Signer's Name:
1 1
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I' 0 Corporate Officer - Title(s):
1 0 Partner - 0 Limited 0 General
I 0 Attorney,in,Fact
I, 0 Trustee
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1 0 Other'
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1 Signer Is Representing:
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Conservation Eas'ement DI . 6417
Page 8 '
CERTIFICATE OF ACCEPTANCE
This is to Certify t~aUhe interest in real property conveyed by the Conservation Easement, dated
Januarv 26. 2005 , by Anthony Dubreville and Marlene Dubreville, Trustees of the
DubrevilleFamilyTrust, July 7, 1997, to the City of Poway, Grantee, and to the California Department of
Fish and Game, as a third party beneficiary, a governmental agency (under Government Code Section
27281), is hereby accepted by the undersigned officer on behalf 'of, the City of Poway, pursuant to
authority conferred by Resolution No. 34 of the City of Poway on January 20, 1981
GRANTEE, City of Poway
By X~, cdL~
Title: L. Diane Shea, Citv Clerk
Authorized Representative
Date: February 4, 2005
. . . 6418
(- EXHIBIT A
BIOLOGICAL CONSERVATION EASEMENT
THAT CERTAIN AREA SHOWN AS OPEN SPACE EASEMENT ON
LOT 6 OF CITY OF POWAY TR<\CT NO. 98"02 HERITAGE RANCH
ESTATES, ACCORDING TO MAP NO. 14388,. FILED IN THE OFFICE
OF THE COUNTY RECORDER OF SAN DIEGO COUNTY,
CAL~FORNIA ON MAY 28, 2002, FILE NUMBER 2002-0391382
OF OFF,-CIAL RECORDS..
.
. EXHIBIT B .
I"' 6""41
Lot 6
Individual Lot Declaration
(
Legend The Heritage Estates ./,
Proper'!J Une -...-- ~
top ~ I
?J:,en Space ---- Slope Location ')~e /
asement Uno
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Storm Drain Inlet I ~ Drainage Swale! CU/Vlr! = = City of Poway ~
Open Space / I
S /Qrm Drain ~~~ I
Building Envelope I I ~
Sewer Une - s- ~
Wakr Une - w- 'Common Area .-<
Sewer Une Connection @ Maiiztenance. V//~/~~
Easement HCEA
Water Une Connection @ Maintained
~
Utility. Connection: @ p ~
Telephone, Gat, Street Ught /
Ekctri~ TV Cables Fire IfIdrwit ~ ~
~
LotNltmber ~ ~ Open Space
LotSize ____ ~ ~ ~ CO'\. EaSement
4.64 /
Finirhed Pad . A;:::
Elevation ~
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Fuel Modiflcatlon ~"
Zone I Setback ~ Fuel Modification
Owner MaIntained ZOne I Setback-
Owner Maintained
6' Parkway - HCEA
MaIntaIned
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lot Dimension
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