Res P-12-09RESOLUTION NO. P -12 -09
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF POWAY, CALIFORNIA,
APPROVING VARIANCE 12 -002
ASSESSOR'S PARCEL NUMBER 323 - 470 -05
WHEREAS, Variance (VAR) 12 -002, submitted by Rick Savage, requests approval
to allow a five - foot -high, solid vinyl rear yard privacy fence to be installed on top of existing
five — six - foot -high retaining walls on the residential property located at 13131 Nelson
Lane, within the Residential Single- Family 7 (RS -7) zone. The maximum height of the
combined retaining walls and privacy fence will be approximately 11 feet, when the
maximum combined wall /fence height permitted in the zone is six -feet; and
WHEREAS, on August 21, 2012, 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 City Council finds that the proposed project is Categorically Exempt as
Class 3 and Class 5 Categorical Exemptions from the California Environmental Quality Act
(CEQA), pursuant to Sections 15303e and 15305 of the 2012 CEQA Guidelines, in that the
project involves the construction of an accessory structure (a fence) and it is a minor
alteration in land use limitations on a developed single - family property which will not result
in changes in land use or density.
Section 2: The findings, in accordance with Section 17.50.050 of the Poway Municipal
Code (PMC), to approve Variance 12 -002 to allow a five - foot -high, solid vinyl rear yard
privacy fence to be installed on top of existing five - six - foot -high retaining walls (combined
height 11 feet) on the residential property located at 13131 Nelson Lane, within the RS -7
zone, when the maximum combined wall /fence height permitted in the zone is six -feet are
made as follows:
A. That 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.
The special circumstances include the fact that the property is not afforded the same
degree of rear yard privacy and screening enjoyed by other residential properties in
the area due to the subject site being at a higher elevation than the adjacent
properties along the southerly and easterly property lines; 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
zone, and denied to the property for which the Variance is sought, in that it is
reasonable for the subject property to be afforded the same degree of rear yard
privacy and screening enjoyed by other residential properties; and
Resolution No. P -12 -09
Page 2
C. Granting the Variance would not be materially detrimental to the public health,
safety or welfare in the vicinity and zone in which the property is located in that the
required Building Permit approvals and inspections would need to be obtained to
ensure the structural integrity of the fence; and the proposed vinyl fence will be
constructed in a color that will complement the existing retaining walls; and
D. Granting the Variance does not constitute a special privilege that is inconsistent
with the limitation upon other properties in the vicinity and zone in that it is
reasonable for the subject property to be afforded the same degree of rear yard
privacy and screening enjoyed by other residential properties in the area;
additionally Variance 02 -12 was approved in 2003 to allow the installation of a
12- foot -high fence for the purpose of rear yard privacy on the property located at
13136 Nelson Lane, which is located across the street from the subject site; and
E. Granting the Variance would not allow a use or activity not otherwise expressly
authorized by the zoning development regulations governing the property in that the
installation of fencing on a residential property is permitted within the zone; and
F. Granting the Variance will be compatible with the Poway General Plan because
privacy fencing is permitted within the zone and does not result in a density
increase.
Section 3: The City Council hereby approves VAR 12 -002 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.
B. Approval of this Variance shall apply only to the subject project and shall not waive
compliance with all other sections of the Zoning Ordinance and all other applicable
City ordinances in effect at the time of Building Permit issuance.
C. Within 30 days of the date of this approval the applicant shall submit in writing that
all conditions of approval have been read and understood.
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D. The conditions of Variance 12 -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. Prior to Building Permit issuance the applicant shall comply with the following:
1. The site shall be developed in accordance with the approved site plans on
file in the Development Services Department and the conditions contained
herein. The applicant shall comply with the latest adopted Uniform Building
Code, National Electric Code, and all other applicable codes and ordinances
in effect at the time of permit issuance.
2. The necessary approvals and Building Permits shall be obtained from the
Building Division for the 11- foot -high combined height retaining wall /privacy
fence. The plans shall note the building materials and color of the fence.
The vinyl fence shall be in beige or tan color to complement the existing tan
colored retaining walls.
F. Prior to final inspection approval the following shall be complied with:
1. The site shall be developed in accordance with the approved plans on file in
the Development Services Department and the conditions contained herein.
A final inspection from the appropriate City departments will be required.
Section 4: The approval of VAR 12 -002 shall expire on August 21, 2014, at 5:00 p.m.,
unless prior to that time a Building Permit has been issued and construction has
commenced on the property
Section 5 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 by the City Council of the City of Poway at
a regular meeting this 21St day of August, 2012.
ATTEST:
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Page 4
STATE OF CALIFORNIA )
) SS
COUNTY OF SAN DIEGO )
I, Linda A. Troyan, MMC, City Clerk of the City of Poway, do hereby certify under
penalty of perjury that the foregoing Resolution No. P -12 -09 was duly adopted by the City
Council at a meeting of said City Council held on the 21st day of August, 2012, and that it
was so adopted by the following vote:
AYES: BOYACK, GROSCH, MULLIN, CUNNINGHAM, HIGGINSON
NOES: NONE
ABSENT: NONE
DISQUALIFIED: NONE
nyA. Troyan, MMC, City Clerk
City of Poway