Loading...
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 Page 4 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