Covenant Regarding Real Property 2001-0924365
, ~:' ~1 . DOC . 2001-0924365
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~EC9RDING;R.E9UE~T BY: ) DEe :1,7" 200:1. 8::23 AM
) .' OFFICIAl.RECORDSi
.GI;rV OF POWAY ) SAN DIEGO COUNTYiRECORDER'S OFFICE
) GffGORV J. iSMlTHi COUNIY',RECORDER
WHEN R.ECOR.DED MAIL TO: ) FEES: 41.00
)
CITY CLERK )
f~ CITY OF POWAY )
POBOX 789 )
t~ POWAY CA 92074-0789 )
)
~ No TransferTax Due ) (This space for Recorder's Use)
COVENANT REGARDING REAL PROPERTY
Poway Nierman; LP; P~ROPERTY OWNER ("OWf:'JER" hereinafter) is the owner
of real property described in Exhibit A which is attached hereto and made a p~rt hereof
and which is cbmmonlyknown as Assessor's Parcel Number 317-153-25
("PROPERTY"hereinafter), In consideration of the approval of CUP 01-12/MDRA 01-
80, by the City of Poway("CITY" hereinafter), OWNER hereby agrees to abide by
conditions 'of 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, encumbrancers, successors, heirs, personal
representatives, transferees:and assigns of the respective parties.
In the ElvElnttl}?t CUP 01-12/MDRA 01-80 expires or is rescinded by City Council
at the request ofthe OWNER,'CITY shall expunge this 'Covenant from the record title of
the PROPERTY
In the event oflitiga!ioh tb:enforce the provisions of this Covenant, the prevailing
party shall be entitled to full reimbursement of all costs, inc:luding reasonable attorneys'
fees, from the other party,
Poway'Nierman, LP
Dated: DtrbrlP:C72. 3 2001
/ (Notarize)
NIER./Mq/l/ r"o4l~D G f' LLe
rrevl5it:0t. /'#!7'1/#f:.. 13 'I '
JAM€,5 $, /Il/{;R/?1~ C60
CITY OF POWAY
Dated. 1t/t'~1
lopment Services
~,~'jC^r>) 9J'j}q 1)1-JCl-:r
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EXHIBIT" A"
PARCEL A:
Parcels I, 2, 3 and 4 of ParceL Map. No. 13714, in the City of Poway, County of San
Diego, State ofCalifomia;f1led in the Office of the County Recorder of San Diego County,
March 12, 1985 as File No. 85c080780 of Official Records.
PARCEL.B.
Non"exclusive easements for ingress and egress and for the passage of motor vehicle into,
out. of, on, over and acros~ those certain easements described,in Article i of.that certain
document entitled "Reciprocal Mutual Access Easement Agreement" recorded July 2, 1985
as File No. 85"238010 of Official Records, in the Office'of,the County Recorder of San
Diego County
APN 317"153"24,25,26 and 27
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CALIFORNIA All~PURPOSE\ ACKNOWl~DGM,ENT
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t.St~teof KY~~f8.
County, Qf &N1)~{)
Oii,~~ before me , t-!; "'.' .'" " C
personally appeare:"~~fS\3. N lF~~ J"'D"".Not,~P"b1"')
Name(s) o!Signef(~)
O'pers8Rally ItAS',':R Iv ",6 ~ OR -~roved to me on the basis'of"satisfacto evidence to be,the person(;;1
. whose name( sl' subscribed to the withininstrument
and acknowledged :to'me,that@el!hey,executed' t~e
., , same ir(@Lb~irauthorized capacily(~.,andthatbY
~ - - - ~ -, .~ "~ ,~ :':"'. ~ :"- ~ ~r signature~on the instrument the person~,
. M'GMCC W'"'' " ,eo ,,"" 'oo'''''''''' w",,, ~, ".of> ,d^"
_ . --. " , CommlsSlon'# 1270376 - " ,
~ ~ . Notory'PlJblic _ california ~ executed the Instrument.
- . Son, Djego County. ~
. . Mycornrr;.f)(plresJlJl.l'O.2004
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OPTIONAL I
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Though the information below is noUequfrf?d'tw taw, it may pro~'e valuable to personiNelving on the docurrient'andcoufdprevent
fraudulent remova1'and reattachment of this tomi to another document. .!
Description cjf'AttachedDocument I
Title or Type of Document: !
Document Date: Number of Pages: I
1
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name: Signer's Name:
o Individual o Individual
o Corporate Officer o Corporate'Officer
TitIe(s): Titl",(s):
p Partner - 0 Limited 0 General o Partner -0 Limited 0 General
o Attorney-incFact o At10rney.in-Fact
o Trustee D Trustee
o Guardian,or Conservator . 0' Guardian or Conservator
D Other' Top of thumb here o Other' Top althumb here
Signer Is Representing: Signer Is Representing:
I
01994 National NotarY Associalion . 8236 R~mmel Ave., P.O.- Box 7184. Canoga Par1<;, CA 913097184 Prod. No. 5907 Reorder: Call ToU Free 1.600-8~i6.6a27
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,,- . EXHIBIT B
RESOLUTION NO. P- 01~59
A RESOLUTION OF THE CITY COUNCl.L
OF TRE;CITY',.OF'.POWA Y, CALIFORNIA I.\PPR0VING
, coNofTIONAL USE PERMIT Ot-12,
AND MINORDEV.EJ.-OPMENT REVIEWAPPLlCATION 01-80
ASSESSOR'SPARCEL NUMBER'317-153-25
WHEREAS, CUP 01-12 and MDRA Ot-80 suqmitted by Poway-Niernian LP,
applicant requestaConditibnal Use Permit to e~tabli,~b a Starbucks drive-through
restaurant with outdoor,seating restaurant within'an exi!;ting commercial building located
within Pomerado Plazalocated'at12202 Poway Roadwithin'theCommunity Business (CB)
Zone and Poway Road Specific Plan, and
WHEREAS, on November 13, 2001, the City Council held a duly advertised public
hearing to solicit commentsfron1 the public, both pro and 'con, relative to this application.
NOW, THEREFORE, the City Council does hereby resolve as follows:
Section 1 The City Council. finds that Conditional Use ,Permit 01-12 and MORA 01-80
are Categorically ExerT) ptfro m the provision!; ofthe,C~lif6rnia Environmental Qualityl.\ct,
asa Class 1 exemptionpursuClnt t6iSec. 15301 (a) of the CEQA guidelines, ,b'ecause they
are a permits for an existing structure involving only minofinteriorand exterior alterations.
Section 2: The findings, in accordance with Section 17 .'48.070 of the Poway Municipal
Code for Conditional Use Permit 01-12 to establish a drive-through restaurant at 12202
Poway Road within the Community Business (CB) Zone and PowayHoad Specific Plan,
are rl1ade as follows:
A. The proposedfaciiity would be located.in an ,existing shopping center which building
has been designed to 'accommodate a drive-through restaurant. The size of the
facility is apprqpriate for the use and locatioR. The design of the facility. is
appropriate for the use and the su~rounding area. 'The proposed project is a
permitted lJse in the.GB zone" with the approval of a Conditional Use Permit. The
proje'ctwill,comply with all oftherelevantcodes and standardsioftheCity of Po way,
Therefore, the proposed location,.siz~, design and operating characteristics of the.
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proposed use are;in accord with thetitle:and purpose. of Section 17048.070 of the
Poway MU,nicipalCode, the purpose 6fthe zone ihwhich the site is located~ the City
General Plan, and'the'development policies and standards of the City
B The new driye~through restaurant wduld belocatediwithin an existing commercial
centeran(j Will inclUde upgrades to t~eexisting landscaping. The facility will meet
City of Poway stal1dards for parking, Therefore, the location, size, design and
qperatit'lg characteristics of the proP9,sed use Will J!le compatible with and will not
adversely'affect orbe materially detriinentano adjacent uses, residents, buildings,
structures, or natural resources.
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, Resolution No. P-01-59
Page 2
,C~ The,dr,ive,-throughrestau(antwill occypy ~n existing bilfl,ding'l?c/.3ted.ip an existing'
shopping. ,center The prqposed usre will meet or exceedstanc:Jard? for scale,
'coverage'ana:density Therefore, the harmony in scale, bulk, coverage and density
of the project is consistent with adjacent uses.
D There are public facilities, 'services and utilities'available:to the site.
E. The proposed use will not impact neighboring residential areas because the
speaker by the driv~-through lane would be located over 200 feet away from the
nearesHesidence and shielded by either the existing building or the,vehicle in the
drive~through lafle, Landscaping will maintain the ei<isting,aesthetics appeal of the
corner. The proposed' addition to the commercial building will match the existing
design, ,colors, and materials. Therefore, there will be no harmful effect upon
desirable neighborhood characteristics.
F The proposed drive-through restaurant will be'located ona major arterial and will be
accessed via existing driveways. A combination dense landscaping and if
necessary a wall will limit car light from shining onto adjacent sidewalk and streets.
Landscaping will provide 'screening of the walls; drive-through, lane, and cars, and
provide an aesthetically pleasing focal point of the' northeast, corner of Poway Road
and Oak Knoll Drive. 1herefore"the capacity and physical characterofsurrounaing
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streets will not beirnpatted and the project ,is consistent with the Circulation
Element of the Geh,eral Plan.
G. Th,e pr.oposed driVe~tl:ffoLigh restaurant is allo\N~tlle ilJ the zone,:and wiil be:located
adjacellt to a major arterial and on an existingcomme'rcial site designed to
accommodate a arive-throughlane, Therefore, the site is suitable for proposed
building and uses.
H. The use involves no,hazardous materials or processes. Although approximately 2
trees will be removed; .the,tree loss will be offsetby'planting 2 or more new trees on
site as:determined appropriate. Noneofthe trees to,beremovedare'heritage,trees,
Therefor,e; there will not be significant harmful effects,upon environmental quality
and natural resources.
I There are no other relevant negative impacts of the proposed ,use that cannot be
mitigated
J The, impacts, as described above, 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; and
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Resolution No. P- 01-'59
Page 3
K. ThalJhf? proposed'conditional use will comply With each 9fJhe applicable provisions
'of Section 1748~0700fjhe:PowayMunicipal Code. .
Section 3 The findings, in accordance with Section IT.52ofthePoway Municipal Code
for Minor Development Review, Application 01-80 to construct an addition to an existing
commercial building at 12202Poway Road in the CBzone and'poway Road Specific Plan,
are made as follows:
A, The drive-throughrestaLJrimt will be located 'Wi,thin an existing building thatwas
originally design~d'to accommodate a drive-throlJQIJ establishment. The design of
theadditionwouldbe'consH~tent with the existing:building and Would,not present a
departure from the design guidelines of the Poway Road Specific Plan. The
outdoor seating area is consistent with the PowayRoadSpecific Plan. Landsc,aping
will provide an aesthetically pleasing focal pointof the northeast corner of Poway
Road and Oak Knoll Qrive. Therefore, the project respects the interdependence of
land values and aesthetics to the benefit of the'City.
B The addition and drive-through lane is in character with existing development of the
area and will not negatively affect the views of adjacent property owners. The
projectwill provide,additi6nal.landscaping around 'the building,and withih the center
Therefore. the proposed :use does not conflict with the orderly and harmonious'
appearance of structures and property within the City along with assoc:iated
facilities, such as but hOt limited to signs, landscaping, parking areas and streets.
C There are publjcfa'cilities, services and utilities avajlable. The increase In traffic will
be irisignificantgive'n'Eixi~ting traffic volumes and flows in the area. The projettwill
meetthe parking requirerilentfor Pomerado Pla:zaand bring 6 parking spaces'irito
closer conformancewith,the parking space design standards. Denselandscaping
and, if necessary, a wall will limit car IightsJrom spreading ,onto the sidewalk and
streets. Theprojectwill;otherwise conform to all City'ordinances. Therefore, the
proposed project does not detract from the maintenance ofthe public health, safety
and'general welfare; and property throughout the City
D The addition is designed to minimize impacts on the surrounding community by
being designed to mCltch the architecture, materials and colors of the existing
commerc:ial building: Landscapingwill provide screening ofthewalls, drive-through
lane, and cars and provide an aesthetically pleasing: focal point of the northeast
corner of Po way Road and'OakKnoll Drive. The proposed development respects
the public concerns for the, aesthetics of developments.
E. The proposed project will meet the required.design,regulations and will otherwise
comply with all of the relevant codes and standards of the City of Poway
Therefore, the proposal does not have an adverse aesthetic, health, safety or
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Resolution No P-01-59
Page 4
ar~tiitecturcllly felated impac;t upon existing adjoining propertjes;or the City in
general.
F The proposed projectwill comply with all of the' provisions oft he Zoning Ordinance,
Poway Road Specific Plan and the Generai'Plan.
Section 4. Pursuant to Government Code Section.66020, the public fees for Conditional
Use Permit 01-12 and MinoriDevelopment Review Application 01-80 areas follows:
A. The design and impr6vem~nts of the proposed development are consistent with all
elements of the PoW~IY General Plan, as w~!i as, City ordinances, because 'a)1
necessary services and facilities are avaiiapleto,serye,this project. The payment of
sewer and trafficfeesis,ne,ededas a resultbfthe pt9Posed development to protect
the public health, safety and welfare as identified below:
1. The applicant will pay sewer, and traffic fees, which are assessed on a pro-
rata basis'to finance and provide public infrastructure.improvements, which
promote a safe and healthy environmenUorthe residents of the City.
Section 5: The City Council hereby approves a ConaitionalUse Permit 01-j 2andMinor
Development Review Application 01-80 to allow constrlictionofan 108 square"foot addition
to an eXisting building and establish a drive-thru restaurant with 150csquarefeetof outdoor
seating area Within an existing comrnercial bUilding located within Pomerado Plaza located
at 12;102 PoWay Road wittiin the Community Busine!?s' (CB) Zone and Poway Road
Specific Plan, as shown on.the plans dated September26, 2001, subject to the following
conditions,
A. Approval of this Concjitional Use Permit re,quest ~!1all apply to the suoject 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.
B Within 30 days ofthe date of this approval:
1 Theapplicantshallsubmit inwriting thatall conditions of approval have been
read and understood,
2, The property owners shall execute'a Covenant on Real Property
C. 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.
D The conditions of this CUP shall remain in effecfforthe ,life of the subject drive-
throygh restaurarit and' shall run with the land and be binding upon future owners,
succe~sors, heirs, and transferees of the current property owner
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Resolution No P"Oh59
Page 5
.E. Conditional;Use PermitO.1 "12 may be subjectto annual review as;determined,by the
" Director of Development Services for compliance with 'the conditions of approval
and to address concerns thatmay have been. raised during the prior'year
F ,Ahy changes in the approv~d use of the building, including, but not limited to, the
hours of operationa~q'area or number of seatiilg that result in an increase in
required p~rking wi)1 require!the approval of a modiflcation to this Conditional Use
Permit. Depending upon the scope of such changes, at the cjiscretion of the
Director of Development Services, said modification may be processed
administratively or may be referred to the City Council for a public hearing
G Prior to issuance of a building permit, the applicant shall submit building plans
consistent with the approved project plans on file 'in the Planning Division, and the
applicant shall comply.withthe following unless other timing is indicated.
1 Based on the conceptual project developmerit'plan datedSepteniber 26,
2001, iUippears'th?t pfbposed grading work,would not warrant the need for
a grading pl';!n oJ grading permit. HoweVer, if it becomes apparent that
grading Will exc1313cF50 cubic yards bfearthWork, or if the cut is greater than
two feet in vertical'depth and creates a ,cut slope steeper than 2:1 (two
horizorital to one vertical) and the fill is mQre than one footin vertical depth,
then a grading plan shall be prepared and submitted along with applicable
fees to the City Engineering Division for review and approval. A grading plan
submittal checklist is; available at the Engineering Division front counter
Should a grading permit.be required, grClding shall be completed prior to
building pe'rniitissuance for the construction of the driv~-through. If it is
determined that grading does not exceed 50 cubic yards and a grading
permit is not required, then the applicant shall proviae the Engineering
Division a certificcltionfrom a State Registered Civil Engineer indicating the
quantity of earthwork involved and paya $500inspection.fee prior to building
permit issuance,
2. If gradingandior the construction of the drive-through lane will affect the
existing driveway off of Oak Knoll Drive"thatdriveway shall be reconstructed
USirlg alley type returns.
3 Aright-()f"Waypermit shall be obtained from the Engineering DiVision for any
workto be dorie in the public right-of"wayorCity held easements.
4 The building plans shall show all fencing:and walls.
5 Complete landscape construction documents shall be submitted to and
approved by the City's Landscap~ Archit~ct and Planning Division.
Landscap,e plan check fees are re,quired upon submittal of the plans. Plans
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Resolution No P- 01-59'
Page 6
shall be prepared,in accordance with the;City,ofPoway Guide to Landscape
Requirements (Iatestedition) and include the following:
a. Landscaping, including shrubs and ground cover, along,with irrigation,
shall be provided in all areas not used for buildings, parking and
driveWays, to the satisfaction of the Director of DeveloptnentServices.
Specificp1ant!lizesand species, and general irrigatiori design shall be
depicted on the site plan or sepa'rate landscape plan,
b. Landscaping of the modified parkinglotmedian separating the two
rows of parking spaces east of the,proposed drive-through restaurant
to the, satisfaction of the Director-of Development Services.
c, The landscc:lpe plans shall address -the use of retaining wall at the
corner of. Oak Knoll Drive arid P6way'Road. The landscaping shall
contain a' sufficient amount of trees -and shrubs to soften the
appearance of the wall and. shall proVide an aesthetically pleasing
focal point6f the north east corrier.of,Oak Knoll Drive and Poway
Road to the satisfaction of the Director of Development 'Services.
d. The landscape plans shall address screening of the cars lights in,the'
drive-through lane Such screening shall con'sistofadense !h~dge
thatwillprovide immediate screening of headlights and/or low wall to
the satisfaction of the Director of DeVelopment Servic,Els. If it is
determined that a hedge will not adequately block car lights, a low
wali shall be constructed to proViae the necessary screening to the
satisfaCtion of the Director of Development Services,
e. Augment existing landscaping within Pomerado Plaza with shrubs
and trees to the satisfaction of the Director of Development Services.
6 A tree removal permit application shall be submitted for approval qy the
Director of DevelopmentServices for the removal of any mature trees. Prior
to'anygrading,activities on the property,'the:limits of grading,and1excaVation
shall be staked in the field to help assess potentialimpacts to existing mature
trees:, The applicant shall submita report froma qualified arborist evaluating
the necessity of the proposed tree removals. Trees along streets and
property lines should be preser:vedwheneverfeasible. Treereplacement will
be required The size and location of. the tree replacement will be
determined as part of the review of the'p[oject landscape plans.
7 The building plans shall bein accord~nce with the approved plans on file
dated September 26, 2001 in the, Development Services Department for
CUP 01-12/MDRA 01-80, along with the conditions contained herein.
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Re~olution No, P~,Ol-59
Page 7
8" All new equipment'appurtenances, including air conditioners;;shall be shown
on the planscaniishail be,architecturally integrated, screenedJrom view ana
'sound buffered from ,adjacent properties and streets as required by the
Directbrof' Development' Services.
9, Details of any'new exterior lighting shall be'included on the building plans,
including fixture typeiand design. All new exterior lighting fixtures shall be
low-pressure sodium and designed such, that they reflect Iight.downward,
and away from streets and adjoining properties pursuant to Poway Municipal
Code Section 17 08.220.L.
10 The folloWi.!i9 development fees shall be P?jd to the Engineering Division.
Thefollowi.ng fee amount is currently ineffecta[ld is subjecUo change. The
appli,cant; shall pay the amount in effect, at the time of Building Permit
issuance:
Sewer connection fee = $10,602.00*
'> Based on 'fixture counts provided,by ,the applicant at the time of
preparation of the project's conditions of approval, the proposed use
would: resulLin, an'increase in the number,from 14 to 32 ,fixture units
which generates an additionalA,5 Ebu's (Equivalent Dwelling Unit).
The applicant shall verify the exact numbersoffixtures prior to
issuance of a>:building permit and the s'ewer fee adjusted accol'9jngly, if
applicable.
Sewercleah-ouf fee =$50.00 per clean-out
Sewer clean-oufinspection fee = $25;00 per clean-out
Traffic Mitigation fee = $15,075.23**
** Cakulated from (770 trips/1000SFx 1565 SF x $66 x 0.25) -
(220trips/l,OOOSF x 1457 SF x $66 Xo.25) = $15,075.23
11 Theapplk:ant shall comply with the late,st adopted Uniform Building Code,
NC!tiorlaL Electric Code, and all other applicable codes and ordinances in
effect'at the time of electrical/building permit issuance.
12 Approval of this.request shall not waive compliance with all sections of the
Zoning Ordinance, and all other applicable City Ordinances in effect at the
time cif building permit issuance.
H, Compliance' with ttle following conditions is required during construction of site
improvements:
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. Resolution No, P-Oh59
Page 8
1 Erosion: confroLdevices shall be installed and maintained between October
15 and April 1.5.
I Prior,to issuance of a Certificate of Occupancy, the applicantshall comply with the
following'
1 The site shall be,developed in accordance with the approved plans on file in
the bevelopmenfServices Departmenffor both CUP 01-12 and MDRA01-80
along with the conditions contained therein/hen:iin. A final inspection from
the appropriate City Departments wiIJ,be required and approval for
occupancy obtained.
J Upon establishment of the use, the following conditions shall apply'
1 The parking areas and driveways shalL be well maintained.
2. The staff of the drive-through restaurant shall ensure thaUhe outdoor, seating
furniturestays,withln the designated,outCloor seating areain,order to ensure
that adeql!ate '~Isabled access wilibe maintained at. all times from
,handicapped parking spaces to the front door ,of the establishment.
3 All existing lightihgfixtures shall be maintained such that they reflect light
downward, away from any road or stre~t, and aWay from any adjoining
premises,
4 No loudspeaker sound amplification system shall be used to produce sounds
in violation, of the Noise Ordinance, including telephone or electric bell or
chime system.
5. The hours of operation 'for the drive-through restaurant shall be limited to
5:00 a.m, to 11 :30 p.m.
6 All landscaping including areas within the adjacent public right-of"way shall
be adequately irrigated and permanently and fully maintained by the,owner
at all times.
7 If'it is determined that the landscaping anCl/or wall along the drive-through
lane does not adequately block car I)ghts from view from publicsiaewalks
and streets, the applicant shall submit plans to the City Planning Division for
review and approval to address,this issue and make modificatioris to the site
as deemed riecessary by the Director of DeVelopment Services.
8 The owner or operator of the facility shallloutinelyand regularly inspect the
site to ensure compliance with the standards set forth in this permit.
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Resolution No, p"Ol-59;
Page g
\, g ,Any'signs proposed for this development shall be designed and approved in
conformance with the Poway Municipal Code. A separate sign permit, is
required for any new signage.
SeCtion'6: The approval of CUP 0142 and MDRA01-80 shall expire on November 13,
2OCt3, 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 CUP 01-12 and MDRA 01-80 approval has
commenced prior to its expiration.
Section 7. Pursuantto GovernmentCode Section 6602Q,the gO-day approv(!1 period in
which the applicant may protestthe imposition of any fees, dedicatiol1s, rf3seivatioris, or
exactions imposed pursuaritto t~is approval shall begin on November 13, 2001.
PASSED, ADOPTED and APPROVED by the City Council of the City of Poway,
State of California, this 13th day of November 2001
STATE OF CALIFORNIA )
)SS
COUNTY OF SAN DIEGO )
I, Lori Anne Peoples, City Clerk of the City of Po way, do hereby certify, under the
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penalty of perjury, thatthe,for'e@:iiQg'Resolution No. P.ol-59 ; was dulyadopteq by the
City CounCil at a meetil'lgofsaid City Councilheld on the 13th day of November 2001, and
that it was so adopted by the following vote'
,
AYES: EMERY, GOLDBY, HIGGINSON, CAFAGNA
NOES REX FORD
ABSTAIN: NONE
ABSENT: NONE ~; n"" ,~
Lorii!A.nne Peoples, City Cler
City of Poway
N :\planning\O 1 repor1\cup\cup01-12 res.doc