Res P-13-20RESOLUTION NO. P -13 -20
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF POWAY, CALIFORNIA,
APPROVING VARIANCE 13 -002
ASSESSOR'S PARCEL NUMBER 314 - 721 -29
WHEREAS, Variance (VAR) 13 -002, submitted by Larry Lipkin, Applicant,
requests approval to allow: (1) a proposed 323 - square -foot, detached patio cover to
meet a 5 -foot 8 -inch street side yard setback when 10 feet is required; and (2) a
retaining wall and fence combination to measure up to 11 feet 1 inch in height when 6
feet is the maximum allowed on the residential property located at 13001 Triumph Drive,
in the Planned Community (PC) zone (Rancho Arbolitos Woodside); and
WHEREAS, on August 6, 2013, the City Council held a duly advertised public
hearing to solicit comments from the public, both for and against, 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 15303(e) and 15305 of the 2013 CEQA
Guidelines, in that the project involves the construction of accessory structures (a
detached patio cover and fence /wall combination) 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 13 -002 to allow a proposed 323- square-
foot, detached patio cover to observe a 5 -foot 8 -inch street side yard setback where 10
feet is required in the Rancho Arbolitos Planned Community (PC) zone; and to allow a
retaining wall and fence combination to measure up to 11 feet 1 inch in height where 6
feet is the maximum allowed unless the retaining wall and fence are separated by a
five -foot landscape area, as shown on approved plans on file at the Development
Services Department, 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 rear yard area of this property is unduly limited due to a
combination of the smaller area, depth and width of this property in comparison
to other properties in the surrounding neighborhood. The level (useable) portion
of the rear yard is further reduced because of the topographic difference between
the rear yard pad area and Buckwood Street, which borders the property on the
west. The elevation difference affects the overall height of the retaining wall and
Resolution No. P -13 -20
Page 2
fencing combination proposed in order to afford a larger level rear yard area and
provide required swimming pool fencing similar to other homes in the
neighborhood; 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 because a
detached patio cover is permitted in the PC zone. Other surrounding properties
have retaining walls to create level yard areas, including some retaining walls
that are encroaching into the City Right -Of -Way (ROW); and
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 reduced patio cover setback would not cause the structure to be visually
obtrusive because it is angled perpendicular to the street so only a corner of the
patio cover is encroaching into the setback. The proposed patio cover is
replacing a larger patio cover in the same general location that had a greater
visual impact because it was adjacent to the previous fence and oriented parallel
to the street. Landscaping will be installed to provide visual relief of the retaining
wall and fence combination; 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 the
Variance will allow the construction of a detached patio cover over a level area in
the backyard that is allowable in this zone and provide a swimming pool fence
that is required per health and safety codes. Other homes in the vicinity have
retaining walls, some of which are located within the public right -of -way, to create
an expanded level yard area; and
E. Granting the Variance would not allow a use or activity not otherwise expressly
authorized by the PC zone because patio covers, and retaining walls and fences
are permitted in this zone; and
F. Granting the Variance will be compatible with the Poway General Plan because
the patio cover, and retaining wall and fence combination are permitted in the
zone and will be compatible with the surrounding neighborhood.
Section 3: The City Council hereby approves VAR 13 -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
Resolution No. P -13 -20
Page 3
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.
D. The conditions of Variance 13 -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:
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 California
Building Code (CBC), 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 retaining wall /privacy fence. The plans shall note
the building materials and color of the fence. The proposed fence along
the west property line shall be consistent in color and material with the
existing fence along the south property line.
3. Landscape and irrigation plans shall be submitted and approved prior to
the issuance of the Building Permit. The project site shall be landscaped
and irrigated in compliance with the City of Poway Landscape and
Irrigation Design Manual, Chapter 17.41 PMC, and all other applicable
standards in effect at the time of landscape and irrigation plan check
submittal.
The landscape and irrigation plan submittal is a separate submittal from
other project plan check submittals, and is made directly to the Planning
Division. Landscape and irrigation plan review fees are required and are
the responsibility of the applicant.
Resolution No. P -13 -20
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4. An Encroachment Agreement shall be approved and recorded for the
existing retaining wall located within the City ROW.
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.
2. The landscaping shall be installed according to the approved landscape
plans.
Section 4: The approval of VAR 13 -002 shall expire on August 6, 2015, 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 6th day of August 2013.
Don Higginson, ayor
ATTEST:
r y\
Sheila R. Cobian, CMC, City Clerk
Resolution No. P -13 -20
Page 5
STATE OF CALIFORNIA )
) SS
COUNTY OF SAN DIEGO )
1, Sheila R. Cobian, City Clerk of the City of Poway, do hereby certify under
penalty of perjury that the foregoing Resolution No. P -13 -20 was duly adopted by the
City Council at a meeting of said City Council held on the 6th day of August 2013, and
that it was so adopted by the following vote:
AYES: CUNNINGHAM, VAUS, GROSCH, MULLIN, HIGGINSON
NOES: NONE
ABSENT: NONE
DISQUALIFIED: NONE
0 s
Sheila . Cobian, CIVIC, City Clerk
City of Poway