Res P-10-10RESOLUTION NO. P -10 -10
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF POWAY, CALIFORNIA
APPROVING VARIANCE 09 -06 AND
DEVELOPMENT REVIEW 09 -06
ASSESSOR'S PARCEL NUMBER 317 - 270 -62
WHEREAS, a request for Variance (VAR) 09 -01 and Development Review
(DR) 09 -06 was submitted by In -N -Out Burger to amend the previously approved site
development plan and construct an approximate 3,400- square -foot building with a 40-
foot setback from Scripps Poway Parkway, and an automated teller machine (ATM)
kiosk with a 30 -foot setback from Scripps Poway Parkway, where a 50 -foot setback is
required. The site is an approximate 1 -acre lot located at 12890 Gregg Court, within the
developed commercial center located at the southwest corner of Scripps Poway
Parkway and Community Road in the South Poway Commercial (SPC) area of the
South Poway Specific Plan; and
WHEREAS, on March 16, 2010, the City Council held a duly advertised public
hearing to solicit comments from the public, both pro and con, 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(c)
of the CEQA Guidelines, in that the project involves an infill project in an urban area.
Section 2 : The findings, in accordance with Section 17.50.050 of the Poway
Municipal Code (PMC), to approve VAR 09 -06 are made as follows:
A. There are special circumstances applicable to the property and, because of this,
the strict application of the Zoning Ordinance deprives the property of privileges
enjoyed by other properties in the vicinity with the identical zoning classification.
One special circumstance relates to the fact that a new, dedicated right -turn lane
along the sites' Scripps Poway Parkway frontage for turns onto southbound
Community Road will be constructed to accommodate projected future traffic in
the Business Park when it is built out. The timing of the construction of the right -
turn lane is not known at this time, but it is not necessary to accommodate traffic
associated with In -N -Out Burger. The future construction of the lane necessitated
the dedication of 7 additional feet of right -of -way along the subject property,
which occurred in conjunction with the subdivision on the shopping center site.
The 50 -foot setback is measured from the property line, which was changed
when the right -of -way dedication occurred. This circumstance is unique to this
property in that this dedicated right -turn lane is the only dedicated turn lane on a
commercially designated property in the Business Park. Other special
circumstances relate to the irregular "pan- handled" shape of the lot and the
Resolution No. P -10 -10
Page 2
existence of significant manufactured slopes on two side of the property. These
circumstances are unique to this property and not applicable to other properties
with the same land use designation and deprives this property of a right enjoyed
by others by limiting the amount of developable site area; and
B. Granting the Variance is necessary for the preservation and enjoyment of a
substantial property right enjoyed by other property owners in the same vicinity
and not afforded to the property for which the Variance is sought because other
properties have not been required to grant additional right -of -way dedication, are
not constrained by manufactured slope on two sides, and area not irregularly
shaped; and
C. Granting the Variance would not be materially detrimental to the public health,
safety or welfare in the vicinity in that adequate area will be available to install
landscaping, thereby eliminating the potential for visual impact to other
properties; and
D. That the granting of this Variance does not constitute a special privilege that is
inconsistent with the limitation upon other properties in the vicinity and zone; and
E. Granting the Variance would not allow a use or activity not otherwise expressly
authorized by the zone; and
F. That the proposed Variance will be compatible with the City's General Plan.
Section 3: The findings, in accordance with Chapter 17.52 PMC, for DR 09 -06 are
made as follows:
A. The project complies with the provisions of the Poway Municipal Code and the
Poway General Plan, and the findings for the requested Variance can be made in
that the proposed use is allowable in the South Poway Commercial land use
area, and
B. The project will not have an adverse impact on the public health, safety and
general welfare in that the project has been designed to comply with all other City
regulations; and
C. The project will not adversely impact existing adjoining properties or the City in
general with regard to aesthetics in that the development will provide adequate
landscaping in the area adjacent to Scripps Poway Parkway, and
D. The project encourages the orderly and harmonious appearance of structures
and property.
Resolution No. P -10 -10
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Section 4 : The findings, pursuant to Government Code Section 66020 for the public
improvements, and needed as a result of the proposed development to protect the
public health, safety, and welfare are made as follows:
A. The design and improvements of the proposed development are consistent with
all elements of the Poway General Plan, as well as City Ordinances, because all
necessary facilities will be available to serve this project. The construction of
public improvements is needed as a result of the proposed development to
protect the public health, safety, and welfare as identified below:
1. In accordance with the Poway General Plan, the project requires the
payment of water and traffic fees, which are assessed on a pro -rata basis
to finance public infrastructure improvements, and will provide a fire
hydrant, which promote a safe and healthy environment for the residents
of the City.
Section 5 : The City Council hereby approves VAR 09 -06 and DR 09 -06, a request by
In -N -Out Burger to amend the previously approved site develoment plan and construct
an approximate 3,400- square -foot building with a 40 -foot setback from Scripps Poway
Parkway, and an automated teller machine (ATM) kiosk with a 30 -foot setback from
Scripps Poway Parkway, where a 50 -foot setback is required. The site is an
approximate 1 -acre lot located at 12890 Gregg Court, within the developed commercial
center located at the southwest corner of Scripps Poway Parkway and Community
Road in the South Poway Commercial (SPC) area of the South Poway Specific Plan.
The approval is 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 to pay or perform any
settlement unless such settlement is approved by applicant.
Resolution No. P -10 -10
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B. Approval of this Variance and Development Review shall apply only to the
subject project and shall not waive compliance with all other sections of the
Zoning Ordinance, South Poway Specific Plan, and all other applicable City
Ordinances in effect at the time of Building Permit issuance.
C. Within 30 days of approval, the applicant shall submit in writing that all conditions
of approval have been read and understood.
D. The conditions of VAR 09 -06 and DR 09 -06 shall remain in effect for the life of
the subject restaurant, and shall run with the land and be binding upon future
owners, successors, heirs, and transferees of the current property owner. All
prior conditions of approval established under prior entitlements remain in effect.
E. The site shall be developed in accordance with the approved site plan and
elevations included with the project staff report, on file in the Development
Services Department, and the conditions contained herein. Grading shall be in
accordance with the Uniform Building Code, the City Grading Ordinance, the
approved grading plan, the approved soils report, and grading practices
acceptable to the City.
F. Prior to grading, the applicant shall obtain a Grading Permit. 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 of the lot prepared on a
City of Poway standard sheet at a scale of 1" = 20', unless otherwise
approved by the City project engineer, in accordance with the submittal
and content requirements listed herein. Submittal shall be made to the
Development Services Department Engineering Division for review and
approval. The grading design shall be 100% complete at the time of
submittal, ready for approval and issuance of permit. Incomplete
submittals will not be accepted.
SUBMITTAL REQUIREMENTS
a. Transmittal letter.
b. Plan check fees (contact City project engineer).
C. Completed Grading Permit application, signed by the property
owner.
d. Eight copies of the grading plans.
e. Three copies of a preliminary soils /geotechnical report, prepared by
an engineer licensed by the State of California to perform such
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work, shall be submitted with the grading plan.
f. Two copies of Preliminary Cost Estimate.
g. Two copies of the project's Drainage Study.
h. One copy of the approved project conditions of approval.
i. One copy of reference maps or plans used for design of the site.
j. One copy of a current Preliminary Title Report (must be dated
within six months of the plan submittal date) and one copy of all
easement documents referenced in the report. All copies must be
clear and legible, faxed copies are usually not sufficient.
k. Two copies of a Water Quality Technical Report updated based on
the final design.
CONTENT REQUIREMENTS:
As a minimum, the grading plan shall show the following:
I. Driveways, in compliance with the specifications provided in PMC
17.08.170D, and including minimum structural sections together
with their elevations and grades.
M. A separate erosion control plan for prevention of sediment runoff
during construction.
n. Low Impact Development (LID) measures and strategies that will
emphasize conservation and the use of onsite natural features
combined with engineered hydrologic controls to more closely
reflect pre - development hydrologic functions. This includes
maximizing infiltration, providing retention, slowing runoff,
minimizing impervious footprint, directing runoff from impervious
areas to landscaping, and constructing impervious surfaces to
minimum possible widths.
o. All utilities (proposed and existing), together with their
appurtenances and associated easements. Encroachments are not
permitted upon any easement without an approved Encroachment
Agreement/ Permit.
P. Locations of all utility boxes, clearly identified in coordination with
the respective utility companies, and approved by the City prior to
any installation work.
q. All new slopes, with the maximum allowable slope of 2:1 (horizontal
to vertical). Tops and toes of graded slopes shall be shown with a
minimum five -foot setback from open space areas and property
lines. Buildings setbacks from slopes shall conform to PMC
16.50.090.
r. The location of environmentally sensitive areas or other areas that
are to be protected during grading operations.
S. Method of roof drainage for any proposed buildings.
Resolution No. P -10 -10
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3. Water Quality Control — Drainage and Flood Damage Prevention
a. Provide three copies of a Drainage Study prepared by a registered
Civil Engineer, with demonstrated expertise in drainage analysis and
experience in fluvial geomorphology and water resources
management. A storm drainage conveyance system shall be
designed to adequately convey storm water runoff without damage
or flooding of surrounding properties or degradation of water quality.
The study shall use the 100 -year storm frequency as the design
frequency for the drainage conveyance system. The drainage
system, based on this design criteria, shall be capable of handling
and disposing all surface water within the project site and all surface
water flowing onto the project site from adjacent lands. Said system
shall identify all easements, on and offsite, required to properly
handle the drainage. Concentrated flows across driveways are not
permitted.
b. The drainage study shall identify and calculate storm water runoff
quantities expected from the site and upstream of the site, and verify
the adequacy of all onsite or offsite facilities necessary to discharge
this runoff. The drainage system design shall be capable of
collecting and conveying all surface water originating within the site,
and surface water that may flow onto the site from upstream lands,
in accordance with City of Poway standards, and be based on full
development of upstream areas.
C. The drainage study shall evaluate the project's pollutants and
conditions of concern in accordance with Chapter 16.103 PMC,
Poway's Standard Urban Storm Water Mitigation Plan (SUSMP)
Ordinance. The analysis shall consider the project area's location
(from the larger watershed perspective), topography, soil and
vegetation conditions, percent impervious area, natural
infrastructure drainage features, wet season groundwater depth and
any other relevant hydrologic and environmental factors to be
protected specific to the project area's watershed.
d. As part of the drainage study, a qualified, licensed professional shall
provide a report on proposed infiltration techniques (trenches,
basins, dry wells, permeable pavements with underground reservoir
for infiltration) regarding any potential adverse geotechnical
concerns. Geotechnical conditions such as: slope stability,
expansive soils, compressible soils, seepage, groundwater depth,
and loss of foundation or pavement subgrade strength should be
addressed, and mitigation measures provided.
Resolution No. P -10 -10
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e. As part of the drainage study, a field reconnaissance to observe and
report on downstream conditions, including undercutting erosion,
slope stability, vegetative stress (due to flooding, erosion, water
quality degradation, or loss of water supplies) and the area's
susceptibility to erosion or habitat alteration as a result of an altered
flow regime.
f. The drainage study shall compute rainfall runoff characteristics from
the project area, including, at a minimum, peak flow rate, flow
velocity, runoff volume, time of concentration, and retention volume.
These characteristics shall be developed for the 2 -year, 10 -year and
100 -year frequency six -hour storm during critical hydrologic
conditions for soil and vegetative cover. Storm events shall be
developed using isopluvial maps and in accordance with the San
Diego County Hydrology Manual. The drainage shall report the
project's conditions of concern based on the hydrologic and
downstream conditions discussed above. Where downstream
conditions of concern are identified, the drainage study shall
establish that pre - project hydrologic conditions affecting downstream
conditions of concern would be maintained by the proposed project,
satisfactory to the City, by incorporating in the site design, source
control, and treatment control requirements identified in the
approved SUSMP Project Plan.
4. Water Quality Control — Design and Construction
a. Provide two copies of a Water Quality Technical Report (WQTR)
prepared to address the design requirements of the City of Poway's
SUSMP Ordinance. The SUSMP requirements are applicable to the
entire site and as such the entire site shall be designed to
accommodate water for water quality treatment. All SUSMP
requirements developed in the approved WQTR shall be
incorporated into the project design.
b. The project design shall incorporate Low Impact Development (LID)
and site design BMPs to minimize directly connected impervious
areas and to promote infiltration using LID techniques as outlined in
the County of San Diego's LID handbook. Parking areas shall be
designed to drain to landscape areas. Private roads shall be
designed to drain to vegetated swales or landscaped areas
C. Develop and implement appropriate Best Management Practices
(BMPs) to ensure to the maximum extent practicable (MEP) that the
project does not increase pollutant loads from the site. A
combination of respective storm water BMPs, including Site Design,
Source Control, and Structural Treatment Control after the pollutants
Resolution No. P -10 -10
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and conditions of concern have been identified, shall be
implemented in accordance with the approved SUSMP Project Plan.
The pollutants and condition of concerns shall be evaluated from the
project's drainage study report and included in the WQTR.
d. Design Structural Treatment Control BMP's in accordance with the
City of Poway's SUSMP. In accordance with the San Diego
Regional Water Quality Control Board Order No. R9- 2007 -0001
(San Diego Municipal Storm Water Permit), volume or flow -based
BMPs shall be designed infiltrate, filter or treat the volume of runoff
produced by the 85th percentile 24 -hour rainfall or the maximum
flow rate of runoff produced by the 85th percentile hourly rainfall
intensity. Chapter 16.107 PMC addresses treatment control design
requirements. Structural treatment control shall be of high or
medium removal efficiency for the primary pollutants of concern.
Controls that provide low removal efficiency should not be used.
e. Provide two copies of an Operation & Maintenance (O &M) plan in
accordance with Chapter 16.108 PMC. A Storm Water Management
Facilities Maintenance Agreement accepting responsibility for all
structural BMP maintenance, repair and replacement, as outlined in
said O &M plan binding on the land throughout the life of the project,
shall be recorded prior to issuance of a building permit.
5. Grading securities in the form of a performance bond and a cash deposit,
or a letter of credit shall be posted with the City prior to grading plan
approval. A minimum cash security for erosion control of $2,000 is
required.
6. Following approval of the grading plans, posting of securities and fees,
and receipt of three 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. The applicant's action plan
that identifies measures to be implemented during construction to address
erosion, sediment and pollution control will be discussed. Compliance for
sediment control shall be provided using the following guidelines, as
directed by the project inspector:
a. Provision of an onsite de- silting basin with a minimum volume of
3,600 cubic feet per tributary acre drained.
b. Covering of all flat areas with approved mulch.
Resolution No. P -10 -10
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C. Installation of an earthen or gravel bag berm that retains a
minimum of three inches of water over all disturbed areas prior to
discharge, effectively creating a de- silting basin from the pad.
d. Covering of all disturbed slopes prior to a forecast rain event with a
50% or greater probability of precipitation.
7. Construction staking is to be installed and inspected by the Engineering
Inspector prior to any clearing, grubbing or grading. As a minimum, all
protected areas as shown on the approved grading plans are to be staked
under the direction of a licensed land surveyor or licensed civil engineer,
and delineated with lathe and ribbon. As applicable, provide 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.
(Planning)
& Satisfy all requirements of the projects approved Tree Removal Permit.
9. Landscaping and irrigations plans to be approved by the City unless
alternative timing is authorized by the City.
G. Prior to issuance of a Building Permit, the applicants shall comply with the
following conditions:
(Engineering)
1. 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 shall be in accordance with the Uniform
Building Code, the City Grading Ordinance, the approved grading plan,
the approved soils report, and grading practices acceptable to the City.
2. Erosion control, including, but not limited to, desiltation basins, 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.
3.. 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.
Resolution No. P -10 -10
Page 10
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.
4. 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.
5. The applicant shall pay all applicable development impact fees in effect at
time of permit issuance.
6. Applicant shall execute and record a Storm Water Management Facilities
Maintenance Agreement accepting responsibility for all structural BMP
maintenance, repair and replacement as outlined in the Operations and
Maintenance plan included in the agreement. The operation and
maintenance requirements shall be binding on the land throughout the life
of the project.
(Planning)
7. Landscaping and irrigations plans to be approved by the City unless
alternative timing is authorized by the City.
8. The ATM kiosk shall be designed to be architecturally compatible with
other structures on the site and requires a Building Permit. Details on the
design shall be provided on the building plans that area submitted with the
Building Permit.
(Building)
9. School impact fees shall be paid at the rate established at the time of
Building Permit issuance. Please contact the Poway Unified School
District for additional information at (858) 679 -2570.
H. The applicant shall comply with the following prior to approval of occupancy:
(Engineering)
1. 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.
2. The drainage facilities, driveway, slope planting measures, and all utility
services shall be installed, and completed by the property owner, and
inspected by the Engineering Inspector for approval.
Resolution No. P -10 -10
Page 11
3. An adequate drainage system around the new building pad capable of
handling and disposing all surface water shall be provided to the
satisfaction of the Engineering Inspector.
4. The applicant shall repair, to the satisfaction of the City Engineer, any and
all damages to the streets caused by construction activity from this project.
5. Record drawings, signed by the engineer of work, shall be submitted to
the Development Services Department prior to a request of occupancy,
per Section 16.52.130B of the Grading Ordinance. Record drawings shall
be submitted in a manner to allow the City adequate time for review and
approval prior to issuance of occupancy and release of grading securities.
At least three weeks prior to a request for occupancy is recommended.
(Planning)
6. The site shall be developed in accordance with the approved plans on file
with the City. The minimum amount of required parking is shown on the
site plan. Accordingly no on -site parking shall be precluded from use for
access to the ATM kiosk, unless the applicant demonstrates formalized
access to off -site parking in the shopping center to the satisfaction of the
C ity.
7. Landscaping and irrigation shall be installed in accordance with the
approved plan on file with the City.
I. The applicant shall construct the following improvements to the satisfaction of the
Director of Safety Services:
1. Roof covering shall be fire retardant as per the California Building Code
and City of Poway Ordinance No. 64.
2. The building shall display its numeric address in a manner visible from the
access street. Minimum size of the building numbers shall be 6 inches on
the front fagade of the building. Building address shall also be displayed
on the roof in a manner satisfactory to the Director of Safety Services, and
meeting Sheriff's Department - ASTREA criteria.
3. Every building hereafter constructed shall be accessible to Fire
Department apparatus by way of access roadways with an all- weather
driving surface of not less than 20 feet of unobstructed width, with
adequate roadway turning radius, capable of supporting the imposed
loads of fire apparatus and having a minimum of 13'6" of vertical
clearance. This 20 -foot access width is the minimum required for Fire
Department emergency access. In most cases, City Engineering
standards will be more restricting. The more restrictive standard shall
apply. The Fire Chief, pursuant to the PMC, shall approve the road
surface type.
Resolution No. P -10 -10
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4. A hood and duct extinguishing system shall be installed for all cooking
facilities within the kitchen area. Plans are to be submitted and approved,
prior to installation. This is a separate plan submittal to the Fire
Department and requires an additional fee to plan check, approve and
inspect.
5. A 'Knox' Security Key Box shall be required for the building at a location
determined by the City Fire Marshal.
6. Fire Department access for use of firefighting equipment shall be provided
to the immediate job construction site at the start of construction and be
maintained at all times until construction is completed.
7. Permanent access roadways for fire apparatus shall be designated as
'Fire Lanes', with appropriate signs and curb markings.
8. A minimum 3A:40BC fire extinguisher is required for every 3,000 square
feet and 75' travel distance.
9. The addition of one onsite fire hydrant is required. The City Fire Marshal
shall determine the location of the hydrant.
10. An Emergency Contingency Plan and Hazardous Materials Disclosure
shall be filed with the County of San Diego Department of Health and
copies provided to the Fire Department.
11. Prior to delivery of combustible building material onsite, water and sewer
systems shall satisfactorily pass all required tests, and be connected to
the public water and sewer systems. In addition, the first lift of asphalt
paving shall be in place to provide adequate, permanent access for
emergency vehicles. The final lift of asphalt shall not be installed until all
other construction activity has been substantially completed to the
satisfaction of the City.
J. Upon occupancy the following conditions shall apply:
1. All landscaped areas, including the access easement, shall be maintained
in a healthy and thriving condition, free from weeds, trash, and debris. The
trees shall be encouraged and allowed to retain a natural form. Pruning
should be restricted to maintain the health of the trees and to protect the
public safety. Unnatural or excessive pruning, including topping, is not
permitted.
Section 6 : The approval of Variance 09 -06 and Development Review 09 -06 shall
expire on March 16, 2012, at 5:00 p.m. unless the property owner obtains a Building
Permit.
Resolution No. P -10 -10
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Section 7: Pursuant to Government Code Section 66020, the 90 -day approval period
in which the applicant may protest the imposition of any fees, dedications, reservations,
or exactions imposed pursuant to this approval shall begin on March 16, 2010.
PASSED, ADOPTED AND APPROVED by the City Council of the City of Poway,
State of California, this 16 day of March 2010.
�^—
Don Higginson, Mayor
ATTEST:
Resolution No. P -10 -10
Page 14
STATE OF CALIFORNIA )
) SS.
COUNTY OF SAN DIEGO )
I, Linda A. Troyan, MMC, City Clerk of the City of Poway, do hereby certify, under
the penalty of perjury, that the foregoing Resolution No. P- 10 -10, was duly adopted by
the City Council at a meeting of said City Council held on the 16` day of March 2010,
and that it was so adopted by the following vote:
AYES: Boyack, Cunningham, Rexford, Higginson, Kruse
NOES: None
ABSENT: None
DISQUALIFIED: None
, MMC,
City of Poway