42. PARTIAL INVALIDITY. Should any provision of this Lease be held by a court of competent jurisdiction to be either invalid or unenforceable, the remaining provisions of this Lease will remain in effect, unimpaired by the holding.
43. INTEGRATION. This instrument and its attachments constitute the sole agreement between LANDLORD and LESSEE respecting the Property, the use of the Property by LESSEE, and the specified term, and correctly sets forth the obligations of LANDLORD and LESSEE. Any Lease or representations respecting the Property or its leasing by LANDLORD to LESSEE not expressly set forth in this instrument are void. Exhibits “A” and “B” are incorporated into this Lease.
44. CONSTRUCTION. The language of each part of this Lease will be construed simply and according to its fair meaning, and this Lease will never be construed either for or against either party.
45. AUTHORITY/MODIFICATION. The Parties represent and warrant that all necessary action has been taken by the Parties to authorize the undersigned to execute this Lease and to engage in the actions described herein. This Lease may be modified by written amendment. LANDLORDS Trustee, or designee, may execute any such amendment on behalf of LANDLORD. LESSEE’S city manager, or designee, may execute this Lease and any such amendment on behalf of LESSEE.
46. COUNTERPARTS. This Lease may be executed in any number of counterparts, each of which will be an original, but all of which together will constitute one instrument executed on the same date.
IN WITNESS WHEREOF the parties hereto have executed this contract the day and year first hereinabove written.
CITY OF SANTA PAULA MENDOCINO RAILWAY
_________________________________ ____________________________ Dan Singer, Robert Jason Pinoli,
City Manager President
ATTEST:
_____________________________ Taxpayer ID No. 73-1700581 Julie Latshaw,
City Clerk
APPROVED AS TO FORM:
_________________________________
Monica Castillo,
City Attorney
181
65283.00005\44123351.4
EXHIBIT A
PROPERTY DEPICTION
182
65283.00005\44123351.4
EXHIBIT B
LEASED AREA
`
183
To: Honorable Mayor and Members of the City Council
From: Anna Arroyo, Assistant Planner
Subject: PROJECT NO. 2025-CDP-01: APPROVAL OF A CONDITIONAL USE
PERMIT, DESIGN REVIEW, AND VESTING TENTATIVE TRACT MAP
NO. 6114 FOR A CONDOMINIUM PROJECT AT 895 FAULKER ROAD
Date: September 17, 2025
Agenda Item: 11.A
Application Submittal
Date
January 6, 2025
Revised Project
Submittal Date:
June 11, 2025
Site Address 895 Faulkner Rd.
APN
098-0-020-275, 098-0-020-335, 098-0-020-345, 098-0-020-355, 098-0-020-365
Site Area 9.72 acres
CITY OF SANTA PAULA
MEMORANDUM
RECOMMENDATION:
Staff recommends the City Council:
1. Call for the staff presentation.
2. Ask if applicant wishes to speak.
3. Open the public hearing.
4. Close the public hearing.
5. Adopt City Council Resolution No. 7568 approving Project No. 25-CDP-01, a Conditional Use Permit to allow for the development of 213 attached condominiums, Design Review, and Vesting Tentative Tract Map No. 6114 at property located at 895 Faulkner Road, subject to the conditions of approval, and adopting an Addendum to the 2040 General Plan Final EIR.
Presented by: Anna Arroyo, Assistant Planner
BACKGROUND:
SUMMARY
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Zoning Commercial-General (C-G) (SPMC Chapter 16.15.010) General Plan Commercial
Application Complete
Date
August 8, 2025
Applicant(s) Yuri Gurevich (Representative for SP Harridge Santa Paula, LLC) Proposal
A request for a Conditional Use Permit to allow for the development of 213 attached condominiums, Design Review, and approval of a Vesting Tentative Tract Map No. 6114, on parcels totaling approximately 9.72 acres. As proposed, the project would consist of (38) buildings ranging from two to eight three-story condominiums per building. A total of (27) two-bedroom units, (150) three-bedroom units, and (36) four-bedroom units would be built.
Environmental/CEQA
An Addendum to the Final Program EIR (FEIR) for the 2040 General Plan was prepared, and because none of the conditions identified in section 15162(a)(1)-(3) of the CEQA Guidelines exists, no subsequent or supplemental EIR is required.
Entitlement Request
Conditional Use Permit to allow condominiums, Design Review, and approval of Vesting Tentative Tract Map No. 6114
Development Context
DIRECTION GENERAL
PLAN
ZONING CURRENT USE
PROJECT SITE COMM C-G
Vacant commercial
building
NORTH OPR OPR Railroad corridor
185
ABUTTING DEVELOPMENT
SOUTH ----- -----
Faulkner Rd. &
SR126
EAST RSF R-1 Single-family
residential
WEST COMM C-G Commercial center
Procedural Background
The Project site located at 895 Faulkner Road is currently developed with a 73,000 square foot vacant commercial building and surface parking lot. The site has been vacant since the closure of Kmart in February 2020.
On April 24, 2024, the applicant SP Harridge Santa Paula, LLC received Design Review approval for a 225 three-story townhome apartment complex consisting of 40 buildings with two, three, and four bedroom units with attached two-car garages. On January 6, 2025, the applicant submitted a revised project requesting approval of a tentative tract map for 207 condominium units to allow for the sale of the townhomes, which triggered the conditional use permit and tract map requirement. On April 22, 2025, the Planning Commission approved the 207 condominiums under Resolution No. 3867. However, on June 11, 2025, the applicant submitted a revised project to now include 213 condominiums with the revised Spanish Mission style facades.
On August 26, 2025, the Planning Commission approved Resolution No. 3874, recommending City Council approve a Conditional Use Permit to allow for the development of 213 attached condominiums, Design Review, and Vesting Tentative Tract Map No. 6114. The Commission's recommendation to Council included a revised elevation to the original Design Review application (Attachment E) and three additional conditions of approval to address neighbor concerns regarding parking, access, and improvements to Faulkner Road.
1. The applicant and city staff shall have a community meeting with the residents of Felkins Road to address concerns regarding potential access impacts to their private street caused by the project.
2. The CC&Rs shall include language for the enforcement by the HOA of garages to be used for vehicle parking.
3. City staff shall work with Caltrans to address any future improvements within Caltrans's jurisdiction necessary due to traffic impacts caused by the project.
The City Attorney has determined that the third condition is not appropriate for the Conditions of Approval, as the applicant is not able to force City staff to work with Caltrans. For this reason, the condition is not included in the Conditions of Approval presented to City Council, and will be taken as direction to staff instead.
Project Overview
The applicant is requesting a Conditional Use Permit to allow for the development of 213 three-story attached condominiums, Design Review, and approval of a Vesting Tentative Tract Map No. 6114, on parcels totaling approximately 9.72 acres ("Project"). As proposed, the Project would consist of (38) buildings ranging from two to eight condominiums per building. A total of (27) two-bedroom units, (150) three-bedroom units and (36) four-bedroom units would be built. The plans show the two-bedrooms units to be +/- 1,243 square feet; the three186 bedrooms would range from +/- 1,526 square feet to +/- 1,606 square feet; and the fourbedrooms +/- 1,840 square feet to +/- 1,973 square feet. As noted on the site plan, six floor plans are proposed.
The 213 attached townhomes will include private two-car garages and private decks on the second floors. The maximum height of each building would be 35 feet. As now proposed, the façade of the townhomes will articulate a Spanish Mission style, consisting of simple massing with mostly gable end roofs of concrete “S” tile or barrel tile. The shallow roof pitches will vary from 3:12 to 5:12 with minimal overhangs. Exterior walls (elevations) will consist of lightcolored smooth stucco with a sand finish. Other elements include recessed windows, gable end tile detailing, wrought window details and decorative shutters (Attachment B).
The majority of the buildings would have between four and eight dwelling units. Only one building has two units and three units. The primary pedestrian entrance to each townhome would be located on the opposite side of the attached two-car garages, and the units share landscaped interior walkways that provide pedestrian passage to promote neighborhood interactions. Units along Faulkner Road would have primary pedestrian entrances directly from Faulkner Road, which promotes an active street scene. The approximately 10,042 square feet of open space amenities include a swimming pool and spa area, an open play area, and three seating niche areas for use by the residents.
A Vesting Tentative Tract Map (VTTM) is proposed to subdivide the site for condominium purposes. The VTTM would approve 213 condominiums, which includes private streets and open space amenities. Grading would include approximately 79,030 cubic yards of cut and 79,970 cubic yards of fill, with a net import of 940 cubic yards (Attachment C).
As required per Resolution No. 7483, Procedures for approval of street names , the applicant has selected three street names from the approved list, “Pine”, “Casitas”, and "Thacher". The names selected are under the Local Geophysical points of interest under Mountains and Lakes and Rivers. Staff received formal approval from Ventura County Fire on September 8, 2025.
In accordance with SPMC §16.202.040 Concurrent Applications, “whenever more than one permit or approval is required for a proposed development project or use, all applications shall be filed and processed concurrently. All such related applications shall be reviewed in accordance with the procedure set forth for the application requiring the highest level of review.” Therefore, in addition to the proposed VTTM (which requires Council to review), Design Review and a Conditional Use Permit to allow condominiums are also before the City Council for approval.
ANALYSIS:
General Plan Findings & SPMC Consistency
The proposed Project is consistent with the General Plan land use designation and promotes the following objectives, policies and goals contained in the City’s (2040) General Plan:
Land Use Element LU 1.8 Policy: Encourage quality development that contributes significant social, economic and aesthetic benefits to Santa Paula and its citizens; provides compatible, appealing architectural design and site planning, and incorporates streetscape and other public urban amenities that enhance the community image. 187
Land Use Element LU 3.3 Policy: Diverse housing supply. Provide for a full range of housing types, locations and densities to accommodate the city’s share of regional housing needs for all income levels in a manner that: retains the scale and character of existing neighborhoods; facilities upgrading and infill of underutilized land in existing neighborhoods; allows expansion into vacant and underdeveloped lands consistent with infrastructure and environmental constraints; and provides safe and sanitary housing for all residents.
Housing Element Goal 2: To assist in the provision of adequate housing to meet the needs of the community. Establish a balanced approach to meeting housing needs that includes the needs of both renter and owner-households.
Housing Element Policy 2.1: Encourage the production of housing that meets all economic segments of the community, including lower-, moderate-, and upper-income households to achieve a balanced community.
Housing Element Goal 3: To provide adequate housing sites through appropriate land use and zoning designations to accommodate the City’s share of regional housing needs.
The existing zoning designation of the project site is Commercial-General (C-G) with a Planned Development (PD) overlay, which is consistent with the corresponding General Plan land use designation of Commercial. The C-G zone allows for residential uses. However, per SPMC Chapter 16.85, condominiums require approval of a Conditional Use Permit in compliance with the development code standards. As proposed, the Project will comply. The table below provides an analysis of the proposed development criteria compared to the requirements outlined in the SPMC.
Development
Standard
C-G Zone Project Proposes Compliance
Max. Density 29 units/acre 21.9 units/acre Yes
Min. Lot Size 12,000 sf 9.72 acres Yes
Lot Coverage
(Building footprint,
parking & driveway)
Max. 80%
Building footprints:
162,617 sf - 38.3%
Pavement:
130,843 sf- 30.9%
Total: 69.2%
Yes
Landscaping %
20%
(16% vegetation)
Softscape:
69,068 sf - 16%
Hardscape:
46,391 sf - 11%
Amenities:
10,042 sf - 2.3%
Yes
Max. Building Height 45 ft. (or three stories) 35 ft. (three stories) Yes Front Yard Setback
(min.)
10 ft. 10-23 ft. Yes
Side Yard Setbacks
(min.)
10 ft. (abutting
residential zone)
5 ft. (interior)
East: +/-40 ft. West: 22-30 ft. min. Yes
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Rear Yard Setback
(min.)
10 ft. (abutting
residential zone)
5 ft.
20-22 ft. Yes
Off-Street Parking
Requirements
(Condominium)
2-car garage
1 guest space per 4
units (54)
2-car garage
54spaces
Yes
Condominium Standards and Criteria
Per SPMC §16.85.050 (D), the City Council must utilize the following criteria in considering residential condominium projects:
1. The project should be a comprehensive and integrated design, providing its own open space, off-street parking, and amenities for contemporary living. Insofar as the scale of the project allows, open space, walkways, and other areas for people should be separated from parking areas, driveways, and other areas for automobiles. As depicted on the site plan, the Project will provide the above.
2. Architectural unit and harmony should be achieved both within the project and between the project and the surrounding community so that it does not constitute a negative disruption to the established fabric of the community. As designed, the Project provides ample setbacks between adjacent properties and meets setbacks between the proposed structures.
3. The layout of structures and other facilities should be designed for maintenance and management of street, driveway, curb cut, utility and other public or quasi-public improvements. Additionally, structures should be designed to minimize, within the context of accepted architectural practice, the consumption of natural resources either directly or indirectly (e.g., gas, water, and electricity). The Project has been designed to adhere to the above as presented in the site plan, floor plans, and conditions of approval.
4. The project should be designed to maintain as much of the natural topography, large trees and environment as practicable. Because of the condition of the existing site and the need for removal of the trees, the Project has been conditioned (#16) to upgrade the size of the tree plantings in compliance with SPMC section 156.584 (F).
5. The configuration and orientation of the project should respect reasonable design limits imposed by the natural and manmade environment. Structures should be situated to take advantage of view, topography, sun and wind, while at the same time, not destroying these advantages for adjacent properties. Structures should also be situated to minimize or buffer any undesirable properties of the site, such as street noise and nearby obnoxious commercial or industrial uses. The Project site’s flat topography allows for ample use of the site. Residences will have views of South Mountain from the property, and the Project has ample setbacks from adjacent properties so as not to destroy their views. In addition to the new trees, street noise will also be minimized by the installation of dual-pane windows.
6. The layout of units and open space within the project should establish, through the use of structure and landscape materials, a perceptible spatial transition from the public street, through the semi-privacy of the common areas, to the privacy of the unit. Most importantly, the environment of each condominium unit should be private and free from visual, auditory, and other intrusions. As designed and conditioned, the Project will comply.
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Conditional Use Permit Findings
Per SPMC §16.218.040, the following findings are required for issuance of a Conditional Use Permit to allow residential condominiums:
1. The proposed use at the particular location is necessary or desirable to provide a service or facility that will contribute to the general convenience or welfare of the neighborhood or community: The project will contribute to the City housing stock by developing the site into a high-density residential condominium development that is appropriate and compatible with the existing, surrounding, and planned land uses in the vicinity.
2. The characteristics of the project are not unreasonably incompatible with the types of use permitted in the surrounding areas: The project is a reasonable use on the property and will be compatible with nearby land uses. Residential is a permitted use in the Commercial-General zoning district and condominiums are conditionally allowable.
3. The proposed use is consistent with the objectives, policies, general land uses, and programs of the Santa Paula General Plan as described above.
4. The proposed use will not, under the circumstances of the particular case, be detrimental to the health, safety, or general welfare of persons residing or working in the vicinity or injurious to property or improvements in the vicinity: The establishment of a new residential condominium subdivision is not expected to have a negative impact on surrounding properties or the general neighborhood. The Applicant will be required to comply with all applicable codes and uniformly applied development standards.
Vesting Tentative Tract Map Findings
Pursuant to Government Code §66474 and SPMC §16.80.160, the City Council must make the following findings to approve VTTM No. 6114:
1. The proposed subdivision is consistent with applicable general and specific plans. The proposed Vesting Tentative Tract Map No.6114 is consistent with the Santa Paula General Plan. The site is zoned Commercial-General (C-G) which is consistent with the corresponding General Plan land use designation. Commercial-General (C-G) allows for residential uses, either mixed residential/commercial or stand-alone residential, permissible with appropriate design to mitigate potential land use conflicts. The subdivision is consistent with General Plan goals, policies, and objectives described above. There is no applicable specific plan.
2. The design and improvement of the proposed subdivision is consistent with the applicable general plan and specific plans. The design and improvement of the proposed subdivision is consistent with the Santa Paula General Plan. The site is zoned Commercial-General (C-G) with a Planned Development (PD) overlay which is consistent with the corresponding General Plan land use designation of Commercial.
Commercial-General (C-G) allows for residential uses. The subdivision complies with the density intended for this land use and is consistent with General Plan goals, policies, and objectives described in Section 3.G. There is no applicable specific plan.
3. The proposed subdivision is consistent with the provision of the Development Code, as the site is physically suitable for the type of development. The site of the proposed VTTM is currently developed with a 73,000 square foot vacant commercial building and surface parking lot. The site is able to physically accommodate the proposed number of lots, future improvements, site landscaping, and parking, while complying with all applicable development regulations, such as street widths, lot sizes, and requirements in the City 190
Subdivision and Zoning Codes, street standards, and development standards.
4. The proposed subdivision is consistent with the provision of the Development Code, as the site is physically suitable for the proposed density of development. The site’s maximum density is 29 units/acre. The subdivision’s proposed density of 21.9 units/acre is below the maximum density, and as conditioned, the site is physically suitable for the development.
5. The design of the subdivision or and the proposed improvements are not likely to cause substantial environmental damage or substantial and avoidable injury to fish or wildlife or their habitat. The site is currently developed with a 73,000 square foot vacant commercial building and surface parking lot. The proposed subdivision abuts a railroad corridor to its north, Faulkner Rd. and State Route 126 to its south, single-family homes to its east, and commercial uses to its west. Because of its location, it would therefore cause no unavoidable injury to fish or wildlife or their habitat. The proposed condominiums are also not likely to cause substantial environmental damage because the Project will comply with applicable energy, water, and waste efficiency measures specified in the Title 24 Building Energy Efficiency Standards and CAL Green standards.
6. The design of the subdivision and the proposed improvements are not likely to cause serious public health problems. The design of the subdivision and the proposed improvements are in compliance with all required standards. The subdivision proposes facilities and adequate infrastructure to support the proposed residential uses. In addition, the subdivision, as conditioned, is required to be in compliance with all applicable State, County, and City design, building, and other safety related laws, codes, and regulations, including, but not limited to, the Uniform Building Code and Uniform Fire Code. Furthermore, the proposed subdivision will not involve the generation, disposal, use, release, or transportation of a significant amount of toxic or hazardous substances, and will not create noxious or offensive odors. Therefore, it is not anticipated that the proposed subdivision will cause serious health problems.
7. The design of the subdivision and the type of improvements will not conflict with easements of record or established by court judgment or acquired by the public at large for access through or use of property within the proposed subdivision; or, if such easements exist, that alternate easements for access or for use will be provided and these will be substantially equivalent to ones previously acquired by the public. Review of the subdivision has revealed that the improvements will not conflict with existing easements acquired for the purposes of providing public access through, or use of, the property.
8. The proposed subdivision will not discharge waste into an existing community sewer system in violation of existing requirements prescribed by the California regional water quality control board pursuant to Division 7 (commencing with Section 13000) of the Water Code. There is sufficient capacity at the Santa Paula Water Recycling Facility to treat the volume of wastewater generated by the proposed subdivision.
9. The subdivision is in the interest of public health and safety because the development will provide opportunities for home ownership to existing and future Santa Paulans, and will include affordable units.
10. The subdivision is a necessary prerequisite to the orderly development of the surrounding area for the reasons described above. Further, its residential density is complementary to an area served by existing utilities, infrastructure, schools, and commercial services.
ENVIRONMENTAL REVIEW:
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Staff prepared an Addendum to the Final Program EIR (FEIR) for the 2040 General Plan pursuant to Section 15162(a) of the CEQA Guidelines (Attachment D). No new potentially significant impacts would occur as a result of the proposed Project, and the additional information provided in the Addendum does not identify any substantial increase in the severity of previously identified significant impacts in the 2040 General Plan FEIR.
PUBLIC NOTIFICATION:
A notice of public hearing was published in the Santa Paula Times in compliance with state law. Also, in compliance with the City’s Zoning Ordinance, all property owners within a 300-ft radius of the project site, were mailed notifications of the public hearing. As required by Resolution No. 3820 of the City Council, the project site was also posted with a sign at least eleven (11) days prior to the hearing.
STRATEGIC PLAN:
Development of new housing aligns with City Council Strategic Goal D. Healthy, Connected & Thriving Community,
Objective 11 Housing: Advocate and seek resources for the implementation of the Housing Element 2029
New housing development contributes toward achieving the City's overall Regional Housing Needs Assessment (RHNA) objectives by providing both market rate and affordable housing options that address diverse housing needs.
FISCAL IMPACTS:
Should the project be approved, significant building permit and impact fees would be collected by the City from the developer, in addition to long-term property tax revenue from unit sales.
Potential sales and use taxes from residents living in the new development and shopping in the City could be significant as well. Additional housing and residents also factor into "rooftop" analyses done by larger commercial businesses in determining whether to locate in Santa Paula. Demolition of the existing Kmart building and surrounding areas could also alleviate graffiti, vandalism, and trespassing on the site, for which the City currently bears the cost of monitoring via code enforcement and/or police intervention.
OPTIONS:
The following alternatives to Staff's recommendation are available to the City Council:
1. Continue the hearing in order to obtain further information or for the applicant to make any requested revisions to the project.
2. Deny the applicant’s request and direct staff to prepare a Resolution of Denial.
ATTACHMENTS:
A- CC Reso 7568, 25-CDP-01 SP Harridge
B- Plans.pdf
C- VTTM 6114.pdf
D-FEIR Addendum_Appendices link.pdf
E- Draft CC&Rs, 25-CDP-01.pdf
192
ATTACHMENT A
CITY COUNCIL RESOLUTION NO. 7568
AND
EX. A: CONDITIONS OF APPROVAL
193
RESOLUTION NO. 7568
A RESOLUTION OF THE CITY COUNCIL OF SANTA PAULA APPROVING PROJECT NO. 25-CDP-01, A CONDITIONAL USE PERMIT TO ALLOW FOR THE DEVELOPMENT OF 213 ATTACHED CONDOMINIUMS, DESIGN
REVIEW AND VESTING TENTATIVE TRACT MAP NO. 6114 AT PROPERTY LOCATED AT 895 FAULKNER ROAD, SUBJECT TO CONDITIONS OF
APPROVAL; AND ADOPTING AN ADDENDUM TO THE 2040 GENERAL
PLAN FINAL EIR
PROJECT NO. 2025-CDP-01
The City Council of the City of Santa Paula does resolve as follows:
SECTION 1: The City Council finds and declares that:
A. On January 6, 2025, Mr. Yuri Gurevich (the “Representative”) for “SP Harridge Santa Paula, LLC” (“Applicant”) filed an application for a Conditional Use Permit, Design Review, and a Vesting Tentative Tract Map No. 6114 (the “Project”), for redevelopment of the approximate 9.72-acre site (formerly Kmart) located at 895 Faulkner Road as a residential condominium project consisting of 213 new attached condominiums. The project area is legally described as APNs 098-0-020-275, 098-0- 020-335, 098-0-020-345, 098-0-020-355, 098-0-020-365.
B. Pursuant to Santa Paula Municipal Code (SPMC) section 16.85.050, the Applicant also submitted, and the City Attorney has approved as to form and content, CC&Rs for consideration with VTTM No. 6114 in accordance with the requirements for residential condominium projects.
C. The Project was reviewed by City’s Planning Department for, in part, consistency with the General Plan and conformity with the Santa Paula Municipal Code.
D. The City Planning Department reviewed the Project’s environmental impacts under the California Environmental Quality Act (Public Resources Code §§ 21000, et seq., “CEQA”), the regulations promulgated there under (14 Cal. Code of Regulations §§15000, et seq., the “CEQA Guidelines”), and the City’s Environmental Guidelines (“Santa Paula Guidelines”; CEQA, CEQA Guidelines and Santa Paula Guidelines collectively referred to as “CEQA Regulations”).
E. The Planning Department completed its environmental and entitlement reviews and scheduled a duly noticed public hearing regarding the entitlement application before the Planning Commission on April 22, 2025.
F. On April 22, 2025, the Planning Commission held a public hearing and recommended that the City Council approve a Conditional Use Permit to allow 207 new attached condominiums, Design Review and a Vesting Tentative Tract Map No. 6114 (the 194
“Project”), for redevelopment of the approximate 9.72-acre site located at 895 Faulkner Road. The approval included a revised façade.
G. On June 11, 2025, the Applicant submitted a revised Project, which now includes 213 new attached condominiums and the new façade.
H. On August 26, 2025, the Planning Commission held a public hearing on the revised Project and recommended that the City Council approve a Conditional Use Permit to allow 213 new attached condominiums, Design Review and a Vesting Tentative Tract Map No. 6114 (the “Project”), for redevelopment of the approximate 9.72-acre site located at 895 Faulkner Road.
I. On September 17, 2025, the City Council held a duly noticed public hearing regarding this Project. This Resolution, and its findings, is adopted based upon the evidence presented to the Council at its September 17, 2025 hearing including, without limitation, the staff report submitted by the Planning Department and written and oral public comments.
SECTION 2: Factual Findings. The City Council finds that the following facts exist:
A. The Applicant seeks to build a residential condominium project consisting of 213 attached condominiums on the approximate 9.72-acre site (formerly Kmart) located at 895 Faulkner Road. The project area is legally described as APNs 098-0-020-275, 098-0-020-335, 098-0-020-345, 098-0-020-355, 098-0-020-365.
B. If approved, the Project would include 213 attached condominiums consisting of (38) buildings ranging from two to eight condominiums per building. A total of (27) twobedroom units, (150) three-bedroom units, and (36) four-bedroom units would be built.
C. The Property is currently developed with a 73,000 square foot vacant commercial building and surface parking lot.
D. The Property is bounded by a commercial center to the west and single-family homes to the east. To the north is the Santa Paula Branch Rail Line and to the south Faulkner Road and the 126 Freeway.
E. The Property is located within City limits and has a General Plan land use designation of Commercial and is currently zoned Commercial-General (C-G), with a Planned Development (PD) zoning overlay.
SECTION 3: General Plan and SPMC Consistency. The proposed project conforms to the City’s General Plan and Title 16 of the SPMC as follows:
195
A. The Santa Paula General Plan (2040) land use designation for the property is Commercial. The zoning district is Commercial-General (C-G) which is consistent with the corresponding General Plan land use designation.
B. Pursuant to the General Plan (2040), the purpose of this Commercial-General land use category designates areas that provide services for the entire community and accommodates specialized uses that serve the city at large, such as auto sales. This classification is applied along arterial streets and adjacent to the Downtown and is intended to provide a range of goods and services at a concentrated scale. The maximum non-residential FAR is 0.35. Residential uses, either mixed residential/commercial or stand-alone residential, are also permissible with appropriate design to mitigate potential land use conflicts. Maximum residential density is 29 units per acre.
C. Pursuant to SPMC §16.15.010, Purpose and Intent, the Commercial-General (C-G) zone is one of five commercial zones. The Commercial-General (C-G) zone accommodates a broad range of retail and wholesale commercial enterprises, service uses, entertainment uses, offices and other businesses that serve both local and regional customer bases. Development may consist of stand-alone stores or coordinated commercial centers. Residential use is also a permitted in this zone subject to the development standards.
D. SPMC §16.15.020, Land Use and Permit Requirements, Table 15-1 Permitted and Conditional Uses – Commercial Zones, provides a matrix of land uses. Residential is a permitted use, however residential condominiums require a Conditional Use Permit in accordance with SPMC § 16.85.030. If approved, the Applicant will obtain a Conditional Use Permit.
E. SPMC § 16.85.050(C) requires the Applicant to submit CC&Rs to the city for approval at the time of the conditional use permit application. The CC&Rs must first be approved as to form and content by the City Attorney and then by the City Council at the time the Council takes action on the tentative map. The Applicant has submitted CC&Rs that have been approved as to form and content by the City Attorney. The City Council considered approval of the CC&Rs when it took action on VTTM No. 6114.
F. The Planned Development overlay zone (SPMC Chapter 16.31) gives the Commission and Council greater flexibility to allow alternative development standards to be applied in limited circumstances where a property or development would benefit from the application of unique and innovative design; to permit greater design flexibility than is feasible under the strict application of conventional zoning and subdivision regulations; and to assist in preservation of areas of natural scenic beauty. As proposed, no modifications to the Commercial-General (C-G) development standards are requested.
196
G. The proposed Project is consistent with the objectives, policies, general land uses, and programs of the Santa Paula General Plan (2040), as mentioned above in Section 3: General Plan and Zoning, particularly the following:
a. Land Use Element LU 1.8 Policy: Encourage quality development that contributes significant social, economic and aesthetic benefits to Santa Paula and its citizens; provides compatible, appealing architectural design and site planning, and incorporates streetscape and other public urban amenities that enhance the community image.
b. Land Use Element LU 3.3 Policy: Diverse housing supply. Provide for a full range of housing types, locations and densities to accommodate the city’s share of regional housing needs for all income levels in a manner that: retains the scale and character of existing neighborhoods; facilities upgrading and infill of underutilized land in existing neighborhoods; allows expansion into vacant and underdeveloped lands consistent with infrastructure and environmental constraints; and provides safe and sanitary housing for all residents. c. Housing Element Goal 2: To assist in the provision of adequate housing to meet the needs of the community. Establish a balanced approach to meeting housing needs that includes the needs of both renter and owner-households d. Housing Element Policy 2.1: Encourage the production of housing that meets all economic segments of the community, including lower-, moderate-, and upper-income households to achieve a balanced community. e. Housing Element Goal 3: To provide adequate housing sites through appropriate land use and zoning designations to accommodate the City’s share of regional housing needs
SECTION 4: Conditional Use Permit. Pursuant to SPMC § 16.218.040, the City Council approves the Conditional Use Permit and concurs with the following findings made by the Planning Commission:
A. The proposed use at the particular location is necessary or desirable to provide a service or facility that will contribute to the general convenience or welfare of the neighborhood or community: The Project will contribute to the City housing stock by developing the site into a high-density residential condominium development that is appropriate and compatible with the existing, surrounding, and planned land uses in the vicinity.
B. The characteristics of the project are not unreasonably incompatible with the types of use permitted in the surrounding areas: The Project is a reasonable use on the property and will be compatible with nearby land uses. Residential is a permitted use in the Commercial-General zoning district and condominiums are conditionally allowable.
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C. The proposed use is consistent with the objectives, policies, general land uses, and programs of the Santa Paula General Plan as described above in Section 3.
D. The proposed use will not, under the circumstances of the particular case, be detrimental to the health, safety, or general welfare of persons residing or working in the vicinity or injurious to property or improvements in the vicinity; The establishment of a new residential condominium subdivision is not expected to have a negative impact on surrounding properties or the general neighborhood. The Applicant will be required to comply with all applicable codes and uniformly applied development standards.
SECTION 5: Vesting Tentative Tract Map Findings. Pursuant to Government Code § 66474 and SPMC § 16.80.260 the City Council makes the following findings to approve VTTM No. 6114, subject to the Conditions of Approval:
A. The proposed subdivision is consistent with applicable general and specific plans.
The proposed Vesting Tentative Tract Map No.6114 is consistent with the Santa Paula General Plan. The site is zoned Commercial-General (C-G) which is consistent with the corresponding General Plan land use designation. Commercial-General (CG) allows for residential uses, either mixed residential/commercial or stand-alone residential, permissible with appropriate design to mitigate potential land use conflicts. The subdivision is consistent with General Plan goals, policies, and objectives described in Section 3.G. There is no applicable specific plan.
B. The design and improvement of the proposed subdivision is consistent with the applicable general plan and specific plans. The design and improvement of the proposed subdivision is consistent with the Santa Paula General Plan. The site is zoned Commercial-General (C-G) with a Planned Development (PD) overlay which is consistent with the corresponding General Plan land use designation of Commercial. Commercial-General (C-G) allows for residential uses. The subdivision complies with the density intended for this land use and is consistent with General Plan goals, policies, and objectives described in Section 3.G. There is no applicable specific plan.
C. The proposed subdivision is consistent with the provision of the Development Code, as the site is physically suitable for the type of development. The site of the proposed VTTM is currently developed with a 73,000 square foot vacant commercial building and surface parking lot. The site is able to physically accommodate the proposed number of lots, future improvements, site landscaping, and parking, while complying with all applicable development regulations, such as street widths, lot sizes, and requirements in the City Subdivision and Zoning Codes, street standards, and development standards.
D. The proposed subdivision is consistent with the provision of the Development Code, as the site is physically suitable for the proposed density of development. The site’s maximum density is 29 units/acre. The subdivision’s proposed density of 21.9 198
units/acre is below the maximum density, and as conditioned, the site is physically suitable for the development.
E. The design of the subdivision or and the proposed improvements are not likely to cause substantial environmental damage or substantial and avoidable injury to fish or wildlife or their habitat. The site is currently developed with a 73,000 square foot vacant commercial building and surface parking lot. The proposed subdivision abuts a railroad corridor to its north, Faulkner Rd. and State Route 126 to its south, singlefamily homes to its east, and commercial uses to its west. Because of its location, it would therefore cause no unavoidable injury to fish or wildlife or their habitat. The proposed condominiums are also not likely to cause substantial environmental damage because the Project will comply with applicable energy, water, and waste efficiency measures specified in the Title 24 Building Energy Efficiency Standards and CAL Green standards.
F. The design of the subdivision and the proposed improvements are not likely to cause serious public health problems. The design of the subdivision and the proposed improvements are in compliance with all required standards. The subdivision proposes facilities and adequate infrastructure to support the proposed residential uses. In addition, the subdivision, as conditioned, is required to be in compliance with all applicable State, County, and City design, building, and other safety related laws, codes, and regulations, including, but not limited to, the Uniform Building Code and Uniform Fire Code. Furthermore, the proposed subdivision will not involve the generation, disposal, use, release, or transportation of a significant amount of toxic or hazardous substances, and will not create noxious or offensive odors. Therefore, it is not anticipated that the proposed subdivision will cause serious health problems.
G. The design of the subdivision and the type of improvements will not conflict with easements of record or established by court judgment or acquired by the public at large for access through or use of property within the proposed subdivision; or, if such easements exist, that alternate easements for access or for use will be provided and these will be substantially equivalent to ones previously acquired by the public.
Review of the subdivision has revealed that the improvements will not conflict with existing easements acquired for the purposes of providing public access through, or use of, the property.
H. The proposed subdivision will not discharge waste into an existing community sewer system in violation of existing requirements prescribed by the California regional water quality control board pursuant to Division 7 (commencing with Section 13000) of the Water Code. There is sufficient capacity at the Santa Paula Water Recycling Facility to treat the volume of wastewater generated by the proposed subdivision.
I. The subdivision is in the interest of public health and safety because the development will provide opportunities for home ownership to existing and future Santa Paulans, and will include affordable units.
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J. The subdivision is a necessary prerequisite to the orderly development of the surrounding area for the reasons described above. Further, its residential density is complementary to an area served by existing utilities, infrastructure, schools, and commercial services.
SECTION 6: CC&Rs. Pursuant to SPMC 16.05.850(C), and subject to applicable Conditions of Approval, the City Council approves the CC&Rs submitted by Applicant and finds that they meet the requirements of 16.05.850(C)(1)-(5). A copy of the CC&Rs is available at the Community and Economic Development Department located at 970 Ventura Street, Santa Paula, CA 93060, and are incorporated herein by this reference.
SECTION 7: Condominium Standards and Criteria. Per SPMC §16.85.050 (D), the City Council applies the below criteria in considering the proposed residential condominium project:
A. The project should be a comprehensive and integrated design, providing its own open space, off-street parking, and amenities for contemporary living. Insofar as the scale of the project allows, open space, walkways, and other areas for people should be separated from parking areas, driveways, and other areas for automobiles. As depicted on the site plan, the Project will provide the above.
B. Architectural unit and harmony should be achieved both within the project and between the project and the surrounding community so that it does not constitute a negative disruption to the established fabric of the community. As designed, the Project provides ample setbacks between adjacent properties and meets setbacks between the proposed structures.
C. The layout of structures and other facilities should be designed for maintenance and management of street, driveway, curb cut, utility and other public or quasi-public improvements. Additionally, structures should be designed to minimize, within the context of accepted architectural practice, the consumption of natural resources either directly or indirectly (e.g., gas, water, and electricity). The Project has been designed to adhere to the above as presented in the site plan, floor plans, and conditions of approval.
D. The project should be designed to maintain as much of the natural topography, large trees and environment as practicable. Because of the condition of the existing site and the need for removal of the trees, the Project has been conditioned (#16) to upgrade the size of the tree plantings in compliance with SPMC section 156.584 (F).
E. The configuration and orientation of the project should respect reasonable design limits imposed by the natural and manmade environment. Structures should be situated to take advantage of view, topography, sun and wind, while at the same time, not destroying these advantages for adjacent properties. Structures should also be situated to minimize or buffer any undesirable properties of the site, such as street noise and nearby obnoxious commercial or industrial uses. The Project site’s flat topography allows for ample use of the site. Residences will have views of South Mountain from the property, and the Project has ample setbacks from adjacent 200
properties so as not to destroy their views. In addition to the new trees, street noise will also be minimized by the installation of dual-pane windows.
F. The layout of units and open space within the project should establish, through the use of structure and landscape materials, a perceptible spatial transition from the public street, through the semi-privacy of the common areas, to the privacy of the unit. Most importantly, the environment of each condominium unit should be private and free from visual, auditory, and other intrusions. As designed and conditioned, the Project will comply.
SECTION 8: Environmental Assessment. The City Council makes the following environmental findings and adopts an Addendum to the FEIR:
A. The City certified a Final Program EIR (FEIR) for the 2040 General Plan. The FEIR (including documents and other materials that constitute the record of proceedings on which the City’s findings and decisions are based) is located at City of Santa Paula, 970 Ventura Street, Santa Paula, CA 93060. The custodian for these documents is the Community and Economic Development Department. This information is provided in compliance with CEQA § 21081.6(a)(2) and CEQA Guidelines § 15091(e).
B. The California Environmental Quality Act (CEQA) authorizes the preparation of an addendum to a previously certified EIR if changes to a project, or the circumstances under which the project will be undertaken, require changes or additions to a previously certified EIR but none of the conditions permitting preparation of a Subsequent EIR set forth in State CEQA Guidelines section 15162 have occurred.
C. The City has prepared an Addendum to the FEIR for the Project.
D. The Addendum to the previously certified EIR is appropriate because the Project would not result in the following conditions identified in State CEQA Guidelines section 15162:
a. The Project would not result in one or more significant effects not discussed in the Final EIR;
b. Significant effects previously identified in the Final EIR would not be substantially more severe;
c. There are no new mitigation measures or alternatives previously found not to be feasible that would now in fact be feasible and that would substantially reduce one or more significant effects of the Project; and there are no new mitigation measures or alternatives that the Amended Project proponents decline to adopt; and
d. No new mitigation measures or alternatives that are considerably different from those analyzed in the previous EIR that would substantially reduce one 201
or more significant effects on the environment, and that the Project proponents decline to adopt, are recommended.
SECTION 9: Conditions of Approval. The City Council adopts the Conditions of Approval attached as Exhibit A to this Resolution.
SECTION 10: Reliance on the Record. Each and all of the findings and determinations in this Resolution are based on the competent and substantial evidence, both oral and written, contained in the entire record relating to the project. The findings and determinations constitute the independent findings and determinations of the City Council in all respects and are fully and completely supported by substantial evidence in the record as a whole.
SECTION 11: Limitations. The City Council’s analysis and evaluation of the Project is based on the best information currently available. It is inevitable that in evaluating a project that absolute and perfect knowledge of all possible aspects of the project will not exist. One of the major limitations on analysis of the Project is that City Council lacks of knowledge of future events. In all instances, best efforts were made to form accurate assumptions.
SECTION 12: Summaries of Information. All summaries of information in the findings, which precede this section, are based on the substantial evidence in the record. The absence of any particular fact from any such summary is not an indication that a particular finding is not based in part on that fact.
SECTION 13: This Resolution will remain effective until superseded by a subsequent resolution.
SECTION 14: The City Clerk is directed to mail a copy of this Resolution to Applicant and Applicant’s Representative and to any other person requesting a copy. 202
PASSED, APPROVED AND ADOPTED by the City Council of the City of Santa Paula, at a regular meeting of the City Council held on the ____day of ____________, 2025 by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
CITY OF SANTA PAULA:
____________________
Pedro A. Chavez, Mayor
ATTEST:
Julie Latshaw, City Clerk
APPROVED AS TO FORM:
BEST BEST & KRIEGER LLP
Monica Castillo, City Attorney
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Exhibit A
RESOLUTION 7568
CONDITIONS OF APPROVAL
Project No. 2025-CDP-01:
Located at 895 Faulkner Road
In addition to all applicable provisions of the Santa Paula Municipal Code (“SPMC”), SP Harridge Santa Paula, LLC (“Applicant”) agrees for themselves, their, heirs and assigns that they will comply with the following provisions as Conditions for the City of Santa Paula’s Approval of Project No. 2025-CDP-01 (“Project Conditions”).
GENERAL CONDITIONS
1. The Resolution and these associated Conditions of Approval have been adopted with the knowledge, understanding and consent of the Property Owner/Applicant.
2. The Applicant shall comply with all federal, state, and local laws, including all City ordinances, codes, regulations, policies, and conditions (including those herein) and pay all applicable fees and assessments to the City. At the time of building permit submittal, a signed Certificate of Compliance form must be submitted to ensure the permit plans comply with the entitlement requirements and approved exhibits.
3. The Applicant’s failure to comply with, or breach of, any Project Conditions may result in the amendment or revocation of this Permit, or any related permits, or other enforcement action, as may be appropriate in the case. The City may undertake such acts and incur such expenses, as it may consider necessary to effect compliance, the cost thereof including without limitation, administration costs and recoverable attorney’s fees, to be reimbursed by the applicant or current property owners, as may be appropriate in the case.
4. This permit is subject to an ongoing review. If at any time valid, substantiated complaints are received, a public hearing may be held before the Planning Commission, at the sole discretion of the City, to determine if any condition or the permit should be modified, amended or revoked.
5. The permit is granted for the subject Property only and is not transferable to another property.
6. Development of the property shall be in substantial conformance with the Vesting Tentative Tract Map No. 6114, Site Plan, Floor Plans, and Elevations approved by the Planning Commission.
7. The Community and Economic Development Director may approve minor changes, but any substantial change will require the filing of a modification application to be considered by the Planning Commission.
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8. Plans submitted to the City shall have the conditions printed directly onto the building plans and the Project number, “2025-CDP-01,” in the title blocks of the blue prints for this Project.
9. The Applicant shall indemnify, protect, defend and hold the City harmless from any and all claims, demands, lawsuits, writs of mandamus, and other actions or proceedings (whether legal, equitable, declaratory, administrative or adjudicatory in nature), and alternative dispute resolution procedures (including, but not limited to arbitrations, mediations, and other such procedures),damages, costs (including, without limitation, attorney’s fees), injuries, or liability (collectively, “Actions”) brought against the City that challenge, attack, or seek to modify, set aside, void, or annul, any action of. Or any approval issued by the City (including actions approved by the voters of the City) for or concerning Project No. 2025-CDP-01, whether such actions are brought under the Ralph M. Brown Act, California Environmental Quality Act, the Planning and Zoning Law, the Subdivision Map Act, Code of Civil Procedure Sections 1085 or 1094.5, or any other federal, state, or local constitution, statute, law, ordinance, rule, regulation, or any decision of a court of competent jurisdiction.
Should the City be named in any suit, or should any claim be brought against it by suit or otherwise, whether the same be groundless or not, arising out of the City approval of Project No. 2025-CDP-01, the Applicant agrees to defend the City (at the City’s request and with counsel satisfactory to the City), agrees to reimburse City for any costs and expenses directly and necessarily incurred by the City in the course of the defense, and will indemnify the City for any judgment rendered against it or any sums paid out in settlement or otherwise. For purposes of this section “the City” includes the City of Santa Paula’s elected officials, appointed officials, officers, employees, agents, departments, agencies, authorized volunteers, and instrumentalities thereof.
FINANCE DEPARTMENT
10. Before the final inspection and/or occupancy, all Department’s / Division’s (Building and Safety, Community and Economic Development, Public Works, and Legal) Project Review & Plan Check fees and charges must be paid in full.
11. All contractors and sub-contractors must obtain a Santa Paula business license.
Business license forms and information are available on the City website here:
https://www.spcity.org/208/Business-License-Forms
PLANNING DEPARTMENT
12. City of Santa Paula Title XVI: Development Code. The project must comply with all applicable code regulations adopted by the City at the date of this Project Application, including without limitation those pertaining to: Zoning Districts, Land Use Regulations and Development Standards; Landscape and MWELO Standards; Standards and Regulations Applicable to all Zoning Districts; Grading and Erosion Control; General Property Development Standards, Performance Standards and, Administration of the Development Code, unless as set forth or as modified in these Conditions of Approval. 205
13. The proposed 213 dwelling unit Project must comply with the Inclusionary Housing requirements set forth in SPMC Chapter 16.13, Division 8 et seq. The developer must provide one of the following:
a. Reserve at least 15% (31.95) of all dwelling units in a project for low-income households;
b. Reserve at least 10% (21.3) of all dwelling units in a project for very low-income households;
c. Construct off-site inclusionary housing for low-income households equivalent to 17% (36.21) of all dwelling units in a project;
d. Pay an in-lieu fee as established by City Council resolution.
14. Inclusionary Housing. The applicant must enter into an agreement with the City in a form approved by the city attorney as required per SPMC §16.13.413.
15. Final landscape plans are subject to Planning review and approval. Landscaping along the northeast property line shall include trees to achieve privacy for the abutting properties on Felkins Road.
16. In compliance with SPMC 156.584 (F), removal of trees associated with proposal of urban development; the applicant shall submit an appraisal of the value of said trees using the International Society of Arboriculture (ISA) method for appraising trees. The resulting value shall be applied to upgrading the size of tree plantings associated with the project.
17. Proper parking and circulation shall be maintained on the subject property (ingress/egress).
18. Any proposed signage is subject to review and approval by the Planning Department.
19. Lighting sufficient for safety purposes shall be provided at entryways, along walkways, between buildings, and within parking areas.
20. The site shall be kept clean and clear of trash, litter and debris.
21. The development shall comply with required parking and driveway design standards.
22. All landscaped areas shall be maintained in a neat and healthy condition.
23. All mechanical and electrical equipment, including ducting and piping, whether located on ground level or rooftop, shall be screened from view. Such screening shall be compatible with and complementary to the architectural style and detail of the structure that they serve and shall be located in a position satisfactory to Ventura County Fire and the Community and Economic Development Director or their designees.
24. Home Owner Association, Conditions, Covenants, and Restrictions (CC&Rs): The final CC&Rs, /and or other common area use and/or ownership and/or maintenance documents for the subdivision shall be reviewed and approved by the Community and Economic Development Director and City Attorney before the City Council approves the final map. The applicant shall pay for all costs associated with City Attorney review 206
of such CC&Rs. CC&R’s must comply and remain in place as required for Condominium projects per SPMC §16.85.050.
25. Plans submitted for plan check must show compliance with all applicable items within SPMC §16.85.070 Development Standards; such as two-covered parking stalls, guest parking, 90 cubic feet of private storage, laundry facilities, drip pans as applicable for appliances, utility meters, circuit breakers, isolation of vibration and structure-borne noise.
26. Plans submitted for plan check must show compliance with SPMC §16.85.080 Noise Attenuation; such as wall and floor/ceiling assemblies separating units from each other, airborne sound insulation and impact sound insulation.
27. Applicant will submit required documentation to show compliance with SPMC §16.85.090 Verification of Sound Class.
28. Applicant shall comply with SPMC §16.85.100 which include:
a. Complying with all applicable uniform codes as adopted by the city including without limitation fire, building, plumbing and electrical. b. Fire-resistive separations. All separation between units must be one-hour fireresistive construction as a minimum. c. Energy conservation measures. Roof and ceiling assemblies must meet the R30 insulation standards. Exterior openings must be weather-stripped. New or replacement windows must meet state energy standards. Exposed heating ducts and hot water piping and hot water tanks must be insulated. Every project must include energy conservation features such as high efficiency furnaces, low flow toilets and showerheads, as determined by the Building Official per the State Energy Code.
d. All public improvements necessary to comply with city requirements must be constructed before the final map can be approved, unless bonded.
29. In compliance with SPMC §16.85.140 CC&Rs; the following provisions must be contained in the CC&Rs:
a. For the period beginning with the sale of the first unit and continuing for a period of one year after the sale of 50% of the units the developer must fulfill all responsibilities of the association for maintenance of all facilities that may require maintenance during this period. The expiration of this period will not limit or relieve the developer from satisfactory performance of any agreements executed with the city.
b. The condominium must be managed by a professional manager or management firm for at least the first year following the date of the sale of the first unit.
FIRE DEPARTMENT
30. Fire Department Clearance. Applicant shall obtain VCFD Form #610 "Requirements for Construction" prior to obtaining a building permit for any new structures or additions to existing structures.
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31. Fire-Flow Verification. Applicant shall verify that the water purveyor can provide the required fire-flow requirements by having them fill out VCFD Form #625, Fire-Flow Verification.
32. Building Plan Review. Building plans of all A, E, I, H, R-1, R-2 or R-4 occupancies shall be submitted, with payment for plan check, to the Fire District for review and approval prior to obtaining a building permit. This review is concurrent with Building and Safety review. Plans (Architectural, Mechanical, Electrical, Plumbing, and dedicated fire service utility with design to finish above grade) shall be submitted directly to VCFD Fire Prevention.
33. Access Road Width, Private Roads/Driveways. Private roads shall comply with Public Road Standards.
a. Access road width of 36 feet shall be provided for residential use with parallel parking permitted on both sides.
b. Access road width of 32 feet shall be provided for residential use with parallel parking permitted on one side.
c. Access road width of 24 feet shall be required with no on-street parking permitted.
34. Ground Ladder Access. Access around the building shall be provided to allow for laddering the building, at a maximum 75-degree angle, to reach emergency escape and rescue openings below the fourth story above the grade plane. A three (3) foot clear working space shall be provided around the ladder at ground level.
35. Construction Access. Prior to combustible construction, a paved all-weather access road / driveway suitable for use by a 20 ton Fire District vehicle shall be installed at locations approved by the Fire District.
36. Construction Access Utilities. Prior to combustible construction, all utilities located within the access road and the first lift of the access road pavement shall be installed.
A minimum 20 foot clear width shall remain free of obstruction during any construction activities within the development once combustible construction starts.
37. Turning Radius. The access road shall be of sufficient width to allow for a 40 foot centerline turning radius at all turns in the road.
38. Vertical Clearance. All access roads / driveways shall have a minimum vertical clearance of 13 feet 6 inches (13' 6"). Clear of building to sky.
39. Parking Prohibited. The property owner(s) are hereby advised that parking on access roads / driveways and fire department turnarounds is prohibited.
40. Access Point Location. The access road / driveway shall be provided such that any portion of the exterior walls, at grade level, of a building or structure, is not more than 150 feet from fire department access as measured by an approved route around the exterior of the building.
41. Exception: The distance shall be permitted to be extended to 250 feet when the building is protected by an automatic fire sprinkler system in accordance with NFPA 208
and provided with an approved access walkway leading from the road to the exterior openings around the structure.
42. Site Access. Two (2) means of ingress/egress shall be provided to the development in accordance with Fire District access standards.
43. Access Road Certification. That the access road(s)/driveway(s) shall be certified by a registered civil engineer as having an all-weather surface in conformance with Public Works and / or Fire District standards. This certification shall be submitted to the Fire District for review and approval prior to occupancy.
44. Fire Lanes - Prior to construction. The applicant shall submit two (2) site plans to the Fire District for approval of the location of fire lanes. Prior to occupancy, all fire lanes shall be posted “NO PARKING-FIRE LANE-TOW AWAY” in accordance with California Vehicle Code, the International Fire Code and current VCFPD Fire Lane Standards. All signs and or Fire Lane markings shall be within recorded access easements.
45. Access Road Gates. Any gates to control vehicle access are to be located to allow a vehicle waiting for entrance to be completely off the intersecting roadway. A minimum clear open width of 15 feet in each direction shall be provided for separate entry / exit gates and a minimum 20 for combined entry / exit gates. If gates are to be locked, a Knox system shall be installed. The method of gate control, including operation during power failure (battery back-up), shall be subject to review by the Fire Prevention Division. Gate plan details shall be submitted to the Fire District for approval prior to installation. A final acceptance inspection by the Fire District is required prior to placing any gate into service.
46. Street Names. Prior to recordation of street names, proposed names shall be submitted to the Fire District's Fire Prevention Bureau for review and approval.
47. Address Numbers (Commercial, Industrial, Multi-family buildings). Building address numbers, a minimum of ten inches (10") high, shall be installed prior to occupancy, shall be of contrasting color to the background, and shall be readily visible at night.
Brass or gold plated numbers shall not be used. Where structures are set back more than 150 feet from the street, larger numbers will be required so that they are distinguishable from the street. In the event a structure(s) is not visible from the street, the address number(s) shall be posted adjacent to the driveway entrance on an elevated post. Individual unit numbers shall be a minimum of 4 inches in height and shall be posted at the front and rear entrance to each unit. Additional address directional signs may be required at common building entrances and stairways.
48. Address Directory. An address directory shall be provided at all entrances to the project at locations approved by the Fire District. Design shall be in accordance with Fire District Addressing Standards. Directory plans shall be submitted to the Fire Prevention Division for review and approval prior to installation.
49. Accessory Room Door Labeling. All accessory room doors shall be labeled on the doors indicating use of the room (i.e., Electrical Room, Riser Room, Fire Alarm Panel Inside, Storage Room, Janitor, Roof Access, etc.).
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50. Knox Device. Exterior access doors leading to fire sprinkler riser rooms and alarm control panels shall be provided with a Knox Box for emergency access.
51. Fire Hydrant Plan. Prior to construction, the applicant shall submit plans to the Fire District for placement of fire hydrants. On plans, show existing hydrants within 500 feet of the development. Indicate the type of hydrant, number and size of outlets.
52. Fire Hydrant(s) Required. Fire hydrant(s) shall be provided in accordance with current adopted edition of the International Fire Code, Appendix C and adopted amendments.
On-site fire hydrants may be required as determined by the Fire District.
53. Fire Hydrant Design (Commercial, Industrial, Multi-family buildings). Fire hydrants shall be installed and in service prior to combustible construction and shall conform to the minimum standard of the Water Works Manual and the following. a. Each hydrant shall be a 6 inch wet barrel design and shall have (1) 4 inch and (2) 2 ½ inch outlet(s).
b. The required fire flow shall be achieved at no less than 20-psi residual pressure.
c. Fire hydrants shall be set back in from the curb face 24 inches on center. d. No obstructions, including walls, trees, light and sign posts, meter, shall be placed within three (3) feet of any hydrant.
e. A concrete pad shall be installed extending 18 inches out from the fire hydrant. f. Ground clearance to the lowest operating nut shall be between 18 to 24 inches.
54. Fire Hydrant Installation. Prior to combustible construction on any parcel, a fire hydrant capable of providing the required fire flow and duration shall be installed and in service along the access road / driveway at a location approved by the Fire District, but no further than 250 feet from the building site. The owner of the combustible construction is responsible for the cost of this installation.
55. Hydrant Location Markers. Prior to occupancy of any structure, blue reflective hydrant location markers shall be placed on the access roads in accordance with Fire District standards. If the final asphalt cap is not in place at time of occupancy, hydrant location markers shall still be installed and shall be replaced when the final asphalt cap in completed.
56. Water System Plans. Plans for water systems supplying fire hydrants and / or fire sprinkler systems and not located within a water purveyor’s easement, shall be submitted to the Fire District for review and approval prior to issuance of grading and/or building permits or signing of Mylar plans, whichever is first. Plans shall reflect only dedicated private fire service lines and associated appurtenances. Plans shall be construction drawings in accordance with the Ventura County Fire Code and applicable NFPA Standards and shall terminate above grade. Plan shall be design and submitted with the appropriate fees in accordance with VCFPD Standard 14.7.2.
57. Fire Sprinklers. All structures shall be provided with an automatic fire sprinkler system in accordance with current VCFPD Ordinance at time of building permit application. 210
58. Fire Protection System Plans. Plans for all fire protection systems (sprinklers, dry chemical, hood systems, etc.) shall be submitted, with payment for plan check, to the Fire District for review and approval prior to installation. Note: Fire sprinkler systems with 20 or more heads shall be supervised by a fire alarm system in accordance with Fire District requirements.
59. Fire Alarm System. A fire alarm system shall be installed in all buildings in accordance with California Building and Fire Code requirements.
60. Fire Alarm/Sprinkler Monitoring Plans. Plans for any fire alarm system or sprinkler monitoring system shall be submitted, with payment for plan check, to the Fire District for review and approval prior to installation.
61. Fire Extinguishers. Fire extinguishers shall be installed in accordance with the International Fire Code. The placement of extinguishers shall be subject to review by the Fire District.
62. Trash Dumpster Locations. Commercial trash dumpsters and containers with an individual capacity of 1.5 cubic yards or greater shall not be stored or placed within 5 feet of openings, combustible walls, or combustible roof eave lines unless protected by approved automatic fire sprinklers.
63. Phasing Plan. Applicant shall submit a phasing plan to the Fire Department for review and approval prior to construction.
64. Fire Code Permits. Applicant and/or tenant shall obtain all applicable Operational Fire Code Permits prior to occupancy or use of any system or item requiring an operational permit in accordance with Section 105 of the California Fire Code.
BUILDING AND SAFETY
65. A statement shall be printed on the cover sheet stating: “This project shall comply with the currently adopted editions of the California Building code, Mechanical code, Electrical code, Plumbing code, Fire Code, Energy Code, Green Building Standards code, City of Santa Paula Municipal Codes and all State of California and U.S. Federal regulations.”
66. Submittal Documents:
a. A complete set of signed and sealed set of plans shall be electronically submitted, in pdf format, at the initial submittal and all subsequent submittals.
A complete set of plans shall include Civil Plans (for reference only), architectural plans, mechanical, electrical, plumbing, structural, and landscape plans.
b. A signed and sealed soils report and structural calculations shall be electronically submitted, in pdf format, on the initial submittal and all subsequent submittals.
c. Civil plans shall include a Topographic survey, Grading & Drainage, Street Improvement and Utility plans shall be submitted separately and issued under separate permit by the Santa Paula Public Works Department. 211
67. Fees:
a. All plan review fees shall be paid at the time of initial submittal of the project for building plan review.
b. All permit fees shall be paid at the time of permit issuance. c. All development impact fees shall be paid prior to issuance of a Certificate of Occupancy(s).
d. A plan check deposit based on the Engineer’s cost estimate of all on and offsite improvements in an amount approved by City of Santa Paula Public Works Department shall be submitted for the initial plan review at the time of the initial Public Works grading, drainage and building plan review. (Contact Public Works for the detailed cost estimate format.)
e. All outstanding plan review & permit fee balances shall be paid prior to issuance of a building permit.
f. All applicable fees shall be paid to the Santa Paula Unified School District prior to building permit issuance.
68. Prior to issuance of a building permit all department and agency clearances by the authorities having jurisdiction shall be completed.
69. Prior to issuance of a building permit, a certificate of a certified pad, executed by the Engineer of record, shall be reviewed and approved by Public Works and submitted to Building and Safety.
70. Prior to the issuance of a certificate of occupancy(s), all final inspections shall be completed and signed off by all City Departments and agencies having jurisdiction.
71. All State of California Division of Occupational Safety and Health Administration (Cal Osha) standards shall be strictly enforced during the course of construction by the Contractor of Record.
72. A notice of construction hours shall be posted at all entrances to the construction site.
Such notice must be titled in letters at least one inch in height and be placed at least five feet above ground level: “Construction Activities: 8:00 am to 6:00 pm, Monday through Friday. Powered equipment used on a temporary, occasional or infrequent basis operated between the hours of 8:00 a.m. and 6:00 p.m. Monday through Friday. No piece of equipment may generate noise in excess of 5 dBA at 50 feet, SPMC 93.23 (C).”
PUBLIC WORKS
73. On-site and Off-site overhead utility service shall be installed underground in accordance with requirements in effect at the time a building permit is issued.
Existing utilities shall be undergrounded in accordance with SPMC 53.12. Before issuance of a building permit, the Developer shall post a bond, or other surety approved by the City Attorney, guaranteeing said undergrounding.
74. The applicant shall retain an engineer licensed in the State of California, and registered in accordance with the appropriate provisions of the business and 212
Professional Code, to ensure that the construction work conforms to the approved improvement plans (public improvements, rough grading and fine grading) and specifications and to provide certified "as-built" plans after project completion. Submittal of the certified "as-built" plans will be required before and as a condition of final acceptance of the development by the City.
75. All onsite drive aisles/streets shall be private and to be maintained by the Homeowner's Association (HOA) with easements to the City for water and sewer mains.
76. The applicant shall provide legal access to all private streets for the emergency access.
77. During construction, all construction equipment and vehicles shall be stored or parked on the subject site, and shall not be stored or parked on City streets, except as may be permitted by the City Engineer for a specified temporary period through written authorization or as agreed upon as a result of the Construction Management Plan to be developed and reviewed and approved by the City.
78. All existing public roads and private roads abutting the project site during construction or reconstruction shall remain open for traffic at all times with adequate detours during actual construction.
79. The Applicant shall obtain all necessary City, County, State or Federal regulatory permits. Copies of permits shall be provided upon request by the Public Works Director or designee.
80. Before final inspection and/or occupancy, the developer shall repair or replace any damaged infrastructure within the public right-of-way at the direction of the City Engineer.
81. Prior to approval of the Final Map, Applicant shall submit updated drainage calculations and hydraulic design to ensure that the project site will drain to a safe point of discharge.
82. All required public and private on- and off-site service improvements (streets, water, sewer, drainage, lighting, and other utilities) shall be completed within a period of 12 months from the date of the recording of the final map. Developer may ask for an extension from the Community and Economic Development Director by providing a schedule of improvements and the estimated completion dates.
83. All grading, building pads, light fixtures, street and utility improvements shall be completed in accordance with an approved phasing plan to the satisfaction of City Engineer. Upon submittal of grading permits, the applicant/developer shall show how these improvements will be carried out, which will be subject to review and approval of City.
84. The owner/applicant shall pay all fees associated with the Final Map review and approval.
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Before the City issues Permits for Site Improvements:
85. All improvement plans and related documents shall be submitted together and include plans for, without limitation, grading, streets, drainage, sewer, water and other appurtenant improvements. In addition, a master utility plan shall be submitted showing the layout and location of all the on-site and off-site utility facility improvements of the subdivision consistent with the tentative map. The plan submittal shall also include construction cost estimates and all pertinent engineering design calculations. The final map may not be recorded until the Public Works Director or designee has approved the improvement plans.
86. All improvement plans, construction cost estimates, soils reports, geology reports, and all other pertinent engineering design calculations shall be submitted to City concurrently with grading plans.
87. All improvements within the public right- of-way or proposed public right- of-way shall be built in compliance with the 2024 City of Santa Paula Standards and in accordance with the 2024 edition of "Standard Specification for Public Works Construction."
88. All improvements shall be bonded in accordance with "Subdivision Map Act" before recordation of the Final Map if the improvements are not finished before recordation of the final map. All improvements shall bond for 100% of approved cost estimate to construct improvements Before Bond Release or Bond Reduction of the improvements and prior to acceptance of the improvements by the City; "As Builts" for the improvements have to be accepted by the City and recorded.
89. Prior to the issuance of a certificate of occupancy, a thorough evaluation of any public street structural road section, to include parkway improvements from a qualified soils engineer, shall be submitted to the City Engineering Division for review. This shall be submitted in a tabular form including street name, classification, ADT and traffic index.
90. The conditions of this resolution prevail over all omissions, conflicting notions, specifications, dimensions, typical sections, and the like, even if not shown on the improvement plans.
91. Cost of the inspections related to on-site and off-site improvements shall be borne by the Applicant.
92. Applicant is responsible for all actions of its contractors and subcontractors until such time as City accepts improvements.
93. The private streets and right-of-way, lot drainage, grading, storm drain, utility and stormwater quality improvements shall conform to the approved tentative tract map and these conditions of approval to the satisfaction of the City Engineer. 214
94. Applicant/future property owner(s) shall provide access to the property for dry utility and cable operators.
95. Prior to issuance of building permit, the applicant/developer shall submit a Street Lighting Plan and fixture details for Planning and Public Works Department review and approval .
96. Applicant shall show on the plans that each dwelling will be served by a separate utility service or meter.
97. Before the City issues building permits, the Applicant shall submit a deposit of $2,000.00 for the atlas fee for underground utilities to cover the cost of updating the storm drain atlas.
98. The applicant will dedicate the public utilities to the City once they are complete and accepted by the Public Works Department.
99. The Applicant shall submit a deposit for construction inspection services. The City Engineer will determine the deposit amount.
100. Before construction, the Applicant shall provide to the City in writing, the designation of an authorized representative who has complete authority to represent and to act for the developer. The authorized representative shall be present at site of the work at all times while work is actually in progress on the development. Arrangements acceptable to the City shall be made for any emergency work; which may be required. When orders are given by the City to the Applicant's representative, to do work required fo·r the convenience and safety of the general public because of inclement weather or any other cause, and said orders are not immediately acted upon by such person, the City may do or have such work done by others at the Applicant's expense.
101. Before the City issues grading I building permits, the Applicant shall comply with the City Construction and Demolition (C&D) program whereby 50% by weight of the construction I demolition material are diverted from a landfill.
Before Acceptance of Site Improvements
102. All water, sewer, gas, underground power, cable TV, or telephone lines, or conduits or underground drain lines shall be installed before any paving is placed.
103. Water system improvements shall be constructed on and offsite to the satisfaction of the City Engineer. These improvements will consist of the installation and test of backflow devices approved by the Ventura County Health Department. A single, combination connection to be provided for each residence, with separate backflow preventers for domestic, landscape, and fire prevention systems. The size of the fire services will be subject to approval of the Fire Chief. All services shall be connected to the existing water main by the City forces or by a Contractor who is duly licensed and accepted by the City Engineer to perform the work.
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104. All improvements to public right-of-way shall be completed as shown in the approved plans and to City standards . Street improvements shall include curbs and gutter, sidewalks, pavement, street lights, traffic control devices, and street name signs as shown on the tentative map and as required by City standards and the General Plan.
105. No City maintained water and sewer system will be allowed on private property, unless within an approved easement.
106. Developer shall apply for and receive National Pollutant Discharge Elimination System permit from the Regional Water Quality Board.
107. The applicant shall coordinate with affected utility companies and obtain any permits as necessary for the development of this project. 108. A digitized drawing file of the sewer improvement plans, in a City's compatible CAD system, shall be submitted along with original Mylars.
109. Applicant shall set all monuments required by the Subdivision Map Act before its bond is released.
Grading
110. All erosion and sediment control plan and permit shall be submitted to, and approved by the Public Works Department prior to any land disturbance. Plans are to be submitted prior to, or with, the grading plans.
111. Water spraying or other approved methods shall be used during grading operations to control fugitive dust.
General Conditions
112. If any hazardous waste or material is encountered during the construction of this project, all work must be immediately stopped and the Ventura County Environmental Health Department, the Ventura County Fire Protection District, the Santa Paula Police Department, and the City Engineer and Public Works Director must be notified immediately. Work may not proceed until clearance has been issued by all of these agencies.
Permit Specific Conditions
113. All parking areas and drive aisles must be surfaced with asphalt, concrete, or other surface acceptable to the Community and Economic Development Director, City Engineer and Public Works Director, and must include adequate provisions for drainage, National Pollution Discharge Elimination System (NPDES) compliance, striping and appropriate wheel blocks, curbs, or posts in parking areas adjacent to landscaped areas. All parking, loading, and common areas must be maintained at all 216
times to ensure safe access and use by employees, public agencies, and service vehicles.
Operational Requirements
114. Prior to or concurrently with the issuance of a Zoning Clearance for a Grading Permit, the applicant shall submit the construction phasing plan for approval by the Community and Economic Development Director, the City Engineer, and Public Works Director.
Phasing shall avoid, to the extent possible, construction traffic impacts to existing adjacent residential, commercial, industrial areas, schools, parks and other city facilities, if any.
Landscaping, Lighting and Maintenance Requirements
115. All landscaping must be maintained in a healthy and thriving condition, free of weeds, litter and debris. All paved surfaces: including, but not limited to, the parking area and aisles, on-site walkways must be maintained free of litter, debris and dirt. Walkways, parking areas and aisles must be swept, washed, or vacuumed regularly. When swept or washed, litter, debris and dirt must be trapped and collected to prevent entry to the storm drain system in accordance with NPDES requirements. 116. The applicant and/or property owner shall provide verification to the City Engineer and Public Works Director that all proposed on-site storm drains have been cleaned at least twice a year, once immediately prior to October 1st and once in January. Additional cleaning may be required by the City Engineer and Public Works Director depending upon site and weather conditions.
Engineering Division
117. Prior to construction, applicant shall submit a construction traffic control plan for the review and approval of the City Engineer and Public Works Director. Traffic control plan shall include construction advisory speed limits, speed limit posting locations, and enforcement measures if needed.
118. Prior to any work being conducted within any State, County, or City right-of- way, the applicant shall obtain all necessary encroachment permits from the appropriate agencies and provide copies of these approved permits and the plans associated with the permits to the City Engineer, if required.
119. Reactive organic compounds, nitrogen oxides (ozone/smog precursor), and particulate matter (aerosols/dust) generated during construction operations must be minimized in accordance with the City of Santa Paula standards and the standards of the Ventura County Air Pollution Control District (APCD). When an air pollution Health Advisory has been issued, construction equipment operations (including but not limited to grading, excavating, earthmoving, trenching, material hauling, and roadway construction) and related activities must cease in order to minimize associated air pollutant emissions. 120. During construction the applicant shall utilize all prudent and reasonable measures (including installation of a 6-foot-high chain link fence around the construction site(s) and/or provision of a full time licensed security guard) to prevent unauthorized persons 217
from entering the work site at any time and to protect the public from accidents and injury.
121. Prior to construction, the applicant shall post, in a conspicuous location, the construction hour limitations and make each construction trade aware of the construction hour limitations to the satisfaction of the City. 122. Prior to the issuance of a Grading Permit, the applicant shall post sufficient surety with the City, in a form acceptable to the City Engineer and Public Works Director, guaranteeing completion of all onsite and offsite improvements required by these Conditions of Approval and/or the Municipal Code including, but not limited to grading, street improvements, storm drain improvements, temporary and permanent Best Management Practice (BMP) for the control of non-point water discharges, landscaping, fencing, and bridges. Grading and improvements must be designed, bonded, and constructed as a single project.
123. Prior to the issuance of a Grading Permit, the applicant shall provide written proof to the City Engineer that any and all wells that may exist or have existed within the project have been properly sealed, destroyed or abandoned per Ventura County Ordinance No. 4468 and per California Department of Conservation, Division of Oil, Gas, and Geothermal Resources requirements.
124. During construction written weekly progress reports and a grading completion report must be submitted to the City Engineer by the project geotechnical engineers. These reports must include the results and locations of all compaction tests, as-built plans of all required fill removal, over excavation and remedial grading, including geologic mapping of the exposed geology of all excavations showing cut cross-sections and sub-drain depths and locations. The lists of excavations approved by the engineering geologist must also be submitted. Building permits will not be issued without documentation that the grading and other pertinent work has been performed in accordance with the geotechnical report criteria and applicable Grading Ordinance provisions.
125. During construction, the applicant shall comply with BMPs approved by the Community and Economic Development Director, City Engineer and Public Works Director.
Temporary grading is defined to be any grading partially completed and any disturbance of existing natural conditions due to construction activity. 126. During site preparation and construction, the contractor shall minimize disturbance of natural groundcover on the project site until such activity is required for grading and construction purposes. Grading operations must cease if the applicant fails to place effective best management measures on graded slopes immediately after construction. No slopes may be graded or otherwise created when the National Weather Service local three-day forecast for rain is twenty percent (20%), or greater, unless the applicant is prepared to cover the permanent and temporary slopes before the rain event. The artificial covering and planting will be to the satisfaction of the Community and Economic Development Director, City Engineer, and Public Works Director.
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127. Prior to the commencement of any construction activities (including site demolition), the applicant shall comply with the City standard requirements for dust control, including, but not be limited to, minimization of ground disturbance, application of water/chemicals, temporary/permanent ground cover/seeding, street sweeping, and covering loads of dirt for the review and approval of the City Engineer and Public Works Director. All clearing, grading, earth moving, excavation, soil import and/or soil export operations must cease during periods of high winds (greater than 15 mph averaged over one hour).
128. At least one (1) week prior to commencement of grading or construction, the applicant shall prepare a notice that grading or construction work will commence. This notice shall be posted at the site and mailed to all owners and occupants of property within five-hundred feet (500') of the exterior boundary of the project site, as shown on the latest equalized assessment roll. The notice must include current contact information for the applicant, including all persons with authority to indicate and implement corrective action in their area of responsibility, including the name of the contact responsible for maintaining the list. The names of individuals responsible for noise and litter control, tree protection, construction traffic and vehicles, erosion control, and the twenty-four (24) hour emergency number, must be expressly identified in the notice.
The notice must be re-issued with each phase of major grading and construction activity. A copy of all notices must be concurrently transmitted to the Community and Economic Development Department. The notice record for the City must be accompanied by a list of the names and addresses of the property owners notified and a map identifying the notification area.
129. Applicant has full right to exercise the service of a new engineer responsible at any time during a project. When there is a change in engineer, the applicant/owner shall notify the City Engineer and Public Works Director in writing within 48 hours of such change. Said letter shall specify successor California Registered Civil Engineer and shall be stamped and signed and dated by said engineer in responsible charge and shall accept responsibility of project. The letter will be kept on file at the City. 130. Prior to issuance of a Grading Permit the applicant shall coordinate with Caltrans District 7 Office of Permits for any encroachments within State right of way, including, but not limited to, right of way access, excavations, and drainage connections.
Evidence of Encroachment Permit Approval is required prior to the issuance of a Grading Permit, if required.
131. Prior to issuance of a Grading Permit, site access and fire hydrant locations shall be reviewed and approved by the Ventura County Fire Department. 132. All other requirements, notes and regulations arising from plan review as determined necessary by the City and their reviewers shall be incorporated into the design as required by the City prior to Grading Permit issuance.
133. Prior to issuance of a Grading Permit, existing utility points of connection shall be potholed to verify location and elevation. An encroachment permit shall be obtained from Public Works prior to related work being performed in Public Right of Way or easements. Utility plans shall be updated as necessary prior to final approval. 219
134. Prior to issuance of a Grading Permit the applicant shall be responsible for identifying all easements and related encumbrances on the project plans and related documents and ensuring that all such easements and encumbrances are not impeded, burdened, and are adequately maintained in accordance with the terms and language of the original easement. Determination of such compliance shall be subject to the City of Santa Paula Public Works approval.
135. Grading operations involving the hauling of dirt shall be controlled and reasonable efforts to avoid the spillage of dirt onto public streets shall be enforced. The grading contractor shall maintain on site at all times a means of preventing blowing dust within the project site and onto adjacent sites.
136. Any deviations from the approved grading plan must be reviewed and approved in advance by the Public Works Department. The City Engineer may issue a Stop Work Order if field conditions deviate from the approved plans without obtaining prior approval from all appropriate City Departments.
Grading and Geotechnical
137. The applicant shall submit precise grading plans, prepared by a California Registered Civil Engineer, detailing the design of finished surfaces including parking lot pavement, drive aisles, curbs, gutter, local depressions, sidewalks, disabled accessible parking, ramps, connections to public right of way, transit stops (Faulkner) and disabled access circulation within the site. The plans should include design grades for proposed buildings, including pad and finished floor elevations, required over-excavations cut/fill slopes, keyways, subdrains, limits and details of any required remedial grading.
Required retaining walls shall be detailed with top of wall/top of footing callouts every 25 to 50 feet, related finished grades at the top of walls, and details of provisions for subdrains and connections to approved points of disposal. Precise grading plans shall be submitted to the Public Works and Community and Economic Development Departments for review and approval prior to the issuance of a Building Permit. 138. Proposed building and equipment pad elevations within the FEMA Special Flood Hazard Area (SFHA) shall be elevated 1 foot above the FEMA 100 year storm event’s Base Flood Elevation.
139. The applicant shall submit a design level Geotechnical Report prepared by a Geotechnical Engineer and Engineering Geologist. The Geotechnical Report shall provide specific recommendations for cut/fill slopes, foundations, retaining walls, temporary excavations, utility trenches, by the proposed development. The report shall present detailed geotechnical recommendations for design and construction of the proposed project and improvements, as well as mitigation of known geologic hazards.
The Geotechnical Report shall be prepared in accordance with the County of Ventura standards and shall be submitted to the Public Works Department for review and approval prior to the issuance of a Grading Permit.
140. All pavement structural sections shall be designed by the project Geotechnical Engineer and Engineering Geologist and submitted in conjunction with the final geotechnical report for review and approval by the Public Works Department prior to the issuance of a Grading Permit.
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141. All slopes shall be 2:1 (horizontal to vertical) or less in accordance with the approved geotechnical studies.
142. The applicant shall provide for the mitigation of the potential for liquefaction and lateral spreading based on the recommendations in the project Geotechnical Report.
Liquefaction mitigation measures and related plans and details shall be submitted to the Public Works Department for review and approval prior to the issuance of a Grading Permit.
143. The applicant shall eliminate or remediate all geologic hazards associated with this proposed development to the satisfaction of the Public Works Department. 144. Prior to issuance of Grading Permit the applicant shall delineate required overexcavation limits (horizontal/vertical) to address the removal of loose alluvium deposits below undocumented fill on the project Grading Plans.
145. During grading, the project geotechnical engineer shall observe and approve all keyway excavations, removal of fill down to stable bedrock or in-place material, and installation of all sub-drains including their connections. All fill slope construction must be observed and tested by the project geotechnical engineer, and the density test results and reports submitted to the City Engineer and Public Works Director to be kept on file. Cuts and slopes must be observed and mapped by the project geotechnical and civil engineers who will provide any required slope modification recommendations based on the actual geologic conditions encountered during grading. Written approval from the City Engineer and Public Works Director must be obtained prior to any modification of approved plans or geotechnical report requirements. 146. The applicant agrees to address any and all Geotechnical Design and Geological Hazard Mitigation requirements not contained within these conditions, associated with the proposed development that may arise during final design. 147. Prior to issuance of a grading permit, the applicant shall provide a current copy of the preliminary title report (dated within the last ninety (90) days of the initial submittal date), for the subject property.
148. The applicant’s engineer shall plot all referenced easements on the site plans and grading plans. All existing and proposed easements shall be reflected on the project plans.
149. During construction all grading and excavation shall be observed and documented by the project Geotechnical Engineer, who shall verify that the excavation, grading, subdrainage, backfill, compaction, and related operations are executed by the site construction personnel in conformance with the provisions of the approved Geotechnical Report. Any deficiencies noted shall be brought to the attention of the grading contractor and the City. Such observations, verifications, related tests, and other pertinent documentation shall be submitted to the Public Works and Community and Economic Development Departments for review and approval prior to the issuance of a Building Permit.
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150. Rough Grade Report. At the completion of rough grading, the project Geotechnical Engineer shall submit a comprehensive rough grade report summarizing the required observations, verifications, related tests, and other pertinent documentation to Public Works and Community and Economic Development Departments for review and approval prior to the issuance of a Building Permit. The report shall include the results of all compaction tests as well as a map depicting the limits of over excavation, observed geologic conditions, locations of all density tests, locations and elevations of all removal bottoms, and location and elevation of all retaining wall back-drains and outlets.
151. Rough Grade and Building Pad Certifications. Upon completion of rough grading, the applicant shall submit Rough Grade and Building Pad Certifications on the City’s forms.
The certifications shall be signed by the project Geotechnical Engineer and project Civil Engineer, as well as the Grading Contractor. The certification shall be accompanied by as-built survey where deemed necessary by the City Engineer to verify compliance with the limits and elevations required by the approved grading and drainage plans. The Rough Grade and Building Pad Certifications shall be reviewed in conjunction with the Rough Grade Report by the City of Santa Paula Public Works Department for approval prior to the issuance of a Building Permit. 152. Approval of Rough Grading. The project Rough Grade Report and Rough Grade and Building Pad Certifications shall be reviewed and approved by the City Engineer.
Evidence of such approval shall be provided to the Community and Economic Development Department, Building and Safety Division, prior to the issuance of a Building Permit. No Building Permit shall be issued for the project without these approvals.
153. Final Grade Certification. Prior to the issuance of a Certificate of Occupancy (C of O), the applicant shall submit a Final Grade Certification on the City’s form. The Final Grade Certification shall be reviewed and approved by the City Engineer prior to the issuance of a C of O for the project.
154. Prior to the issuance of a C of O, the applicant shall submit elevation certifications for proposed buildings on forms provided by FEMA.
155. During construction, the applicant shall over-excavate any loose alluvium deposits below undocumented fill, characterize geotechnical conditions at bottom depth and perform testing and evaluation to delineate and substantiate over excavation depths.
Limits of over excavation shall be approved by the City prior to the placement of engineered fill in excavated areas.
156. Prior to the issuance of a Grading Permit the applicant shall perform additional tests within all proposed onsite infiltration areas in conformance with the Ventura County Technical Guidance Manual for Stormwater Quality Control Measures. Test results and related infiltration recommendations shall be incorporated in the project Geotechnical Report and the design of proposed drainage facilities.
157. The applicant shall provide a geotechnical map prior to issuance of Grading Permit depicting geological data from subsurface field explorations, limits of known fill, geological contacts, and structures. Applicant shall utilize final grading plans as a base 222
map for geotechnical map and provide any additional geotechnical recommendations based on the final grading and geotechnical map.
158. Prior to the issuance of a Grading Permit the applicant shall provide recommendations for foundation design for the proposed buildings to address anticipated accumulative seismic and static settlements. Such recommendations shall be included in the profile geotechnical report and incorporated in the plans.
159. The applicant shall determine the expansion potential of the finish grade materials at the completion of grading. Grading and foundation design recommendations shall address the expansion potential of finish grade materials. Recommendations shall be included in the rough grade report and pad certification and approved by the City Engineer prior to the issuance of a building permit.
160. At the completion of grading the applicant shall provide samples of the upper grade materials tested for R-Value. Final recommendations for pavement design should be based on the R-Values of the finish grade materials.
161. At the completion of grading the applicant shall provide samples of the onsite soils collected and tested for corrosion potential. Final recommendations for measures including cement type should be based on the corrosion potential of the finish grade allowable materials, concrete type, and protective measures. Recommendations shall be included in the rough grade report and pad certification and approved by the City Engineer prior to the issuance of a building permit.
162. The applicant shall provide a rough grade report prepared by the geotechnical consultant and must be submitted to the City Engineer for review and approval. The report shall include the results of all compaction tests as well as a map depicting the limits of over excavation, observed geologic conditions, locations of all density tests, locations and elevations of all removal bottoms, and location and elevation of all retaining wall back-drains and outlets.
163. During construction all foundation excavations must be observed and approved by the Project Geotechnical Consultant prior to placement of reinforcing steel. 164. The final grading, drainage, shoring, and foundation plans shall be reviewed, signed and wet stamped by the project geotechnical consultant. 165. As applicable, the final shoring and foundation plans shall be reviewed and approved by the Community & Economic Director and Building Official.
Public and Private Streets and Related Improvements
166. Prior to construction of any public improvement, the applicant shall enter into an agreement with the City to complete public improvements, with sufficient surety posted to guarantee the complete construction of all improvements, except as specifically noted in these Conditions of Approval.
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167. Prior to final inspection of improvements, the project Registered Civil Engineer shall submit certified original "record drawing" plans with three (3) sets of paper prints and the appropriate plan revision review fees to the City Engineer and Public Works Director along with electronic files in a format satisfactory to the City Engineer and Public Works Director. These "record drawing" plans must incorporate all plan revisions and all construction deviations from the approved plans and revisions thereto.
The plans must be "record drawings" on 24" X 36" Mylar® sheets (made with proper overlaps) with a City title block on each sheet. In addition, the applicant shall provide an electronic file update of the City's Master Base Map electronic file, incorporating all streets, sidewalks, streetlights, traffic control facilities, street striping, signage and delineation, storm drainage facilities, water and sewer mains, lines and appurtenances and any other utility facility installed for this project. 168. Prior to reduction of improvement bonds, the applicant must submit reproducible centerline tie sheets on 3-mil polyester film to the City Engineer and Public Works Director.
169. Prior to construction of any public improvement, the applicant shall obtain an encroachment permit.
170. All construction involving public improvements and/or connection to public utilities shall be performed by a competent Class A – General Engineering Contractor with a license in good standing, issued by the Contractors State License Board. 171. The applicant shall submit a site disabled accessibility plan that addresses disabled access paths of travel connecting common areas, parking, public right of way, public transit stops (Faulkner) and buildings per CBC. Site accessibility plan shall be reviewed and approved by the City Engineer and Community and Economic Development Director prior to the issuance of a Grading Permit.
172. Applicant shall submit a pedestrian access and circulation plan to address pedestrian access and connections between buildings, common areas and public right of way.
Pedestrian access shall be coordinated with disabled access routes and shall consider sight distance at intersections and crossings of vehicle travel areas. Site pedestrian access and circulation plan shall be reviewed and approved by the City Engineer and Community and Economic Development Director prior to the issuance of a Building Permit.
173. Applicant shall submit a disabled accessible parking plan illustrating locations, numbers and required dimensions of accessible parking for residential units, common areas, and vehicle charging spaces. The parking plan shall be reflected on the precise grading plan with sufficient information to clarify compliance with slope limitations of the current adopted CBC.
174. Prior to issuance of a Grading Permit applicant shall submit a traffic study addressing the project traffic trip generation, and related impacts to Faulkner and the Faulkner/SR126EB/WB Ramps.
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175. Prior to issuance of a Grading Permit the applicant shall coordinate with Caltrans District 7 for traffic impacts and any related modifications to Faulkner and the Faulkner/ SR126EB/ WB Ramps.
176. The applicant shall coordinate with the City Engineer, Community and Economic Development Director and Ventura County Transportation Commission (VCTC) for reestablishment of the existing County transit facility from the existing location along the project site’s frontage to a new location on Faulkner Road aligning with the eastern portion of the project east of the SR126 on/off ramps. Exact location shall be determined in consultation with VCTC transit staff, and the transit facility shall include bus shelters, trash receptacles, bus turnout and signage consistent with the existing facility configuration, with sidewalk of sufficient width to accommodate bus shelters and required disabled access per CBC and County requirements. Should require width of bus turnout, sidewalk and bus shelter facility exceed available City right of way, a public access easement shall be established and conveyed to the City prior to the approval of right of way improvements for Faulkner Road.
177. Prior to Grading Permit the applicant shall address the extent of off-site improvements to formalize the northeastern access road connecting “I Lane” to Felkins Road. Off-site improvements shall be reviewed and approved by the City Engineer, Community and Economic Development Director and Ventura County Fire Department prior to the issuance of a Grading Permit.
178. Prior to Building Permit the applicant shall dedicate public access easements to the City for sidewalk improvements where sidewalks and related public circulation components extend beyond existing public right of way, as well as for site circulation driveways where fire, police and solid waste services access are required. Proposed easements shall be approved and recorded by the County of Ventura prior to the issuance of a Grading Permit.
Drainage and Hydrology
179. Prior to issuance of a Grading Permit, the applicant shall submit on-site storm drain plans in plan and profile format at a minimum scale of 1”=20’ (maximum scale of 1”=40’), with supporting calculations that analyze conditions before and after development for the review and approval by the City Engineer and Public Works Director. Quantities of stormwater, flow rates, on site and contributory offsite drainage areas and patterns, diversions, collection systems, flood hazard areas, sumps, sump locations, detention and NPDES facilities and drainage courses must be addressed in the drainage plans and associated calculations.
180. All storm water detention, retention, and impoundment facilities shall provide access for maintenance purposes. This includes, but is not limited to, maintenance access roads, vehicle and/or man gates, and adequate space to maneuver equipment. 181. If a new drainage is conveyed to or through adjacent properties, additional easements and/or approvals may be required prior to the recordation of a Final Map. 225
182. The applicant shall submit a Project Drainage Report, prepared by a California Registered Civil Engineer, to address existing and proposed hydrology, including offsite flow patterns which currently influence the project site. Report shall address developed hydrology associated with the site development, based on the provisions of the Ventura County Hydrology Manual and associated methodology, addressing both 10-year and 100-year existing and proposed drainage conditions, including provisions for the interception and conveyance of the 10-year design storm and flood hazards associated with the 100-year storm. Calculations for the mitigation of increased stormwater runoff shall be provided to support on-site detention facility sizing.
Calculations shall address the detailing and sizing of area drains, catch basins and storm drain laterals on site, and shall be coordinated with the project Storm Drain Plans. The Project Drainage Report shall be submitted to the Public Works Department for review and approval prior to the issuance of a Grading Permit. 183. Hydrology calculations must be per current Ventura County Standards, utilizing the VCRat software with site specific design parameters, and to the satisfaction of the City Engineer and Public Works Director prior to the issuance of a Grading Permit. 184. The applicant shall provide for the interception of tributary areas of offsite drainage to maintain existing drainage patterns for adjacent properties. Onsite storm drain systems shall be designed to accommodate the interception and associated conveyance of such tributary offsite drainage to the satisfaction of the City Engineer and Public Works Director prior to the issuance of a Grading Permit.
185. The applicant’s engineer shall provide for detention of on-site storm drainage, based on either offsite storm drain capacity limitations or a ‘no net increase’ approach, whichever yields the greater volume or required detention. Such calculations shall be included in the Project Drainage Report to the satisfaction of the City Engineer and Public Works Director prior to the issuance of a Grading Permit. 186. Applicant shall avoid the use of grated inlets for drainage interception at alleys, driveways, and roadways. Side inlets shall be provided at alleys, driveways, and roadways.
187. Runoff coefficient values shall be reflective of final design conditions. Storm drain infiltration devices shall be sized according to final runoff coefficient values. Such calculations shall be included in the Project Drainage Report to the satisfaction of the City Engineer and Public Works Director prior to the issuance of a Grading Permit. 188. Unless specifically approved by the City, the project storm drain system shall be privately owned and maintained. Storm drain plans shall clarify that the project storm drain system is not to be maintained by the City of Santa Paula.
National Pollutant Discharge Elimination System (NPDES) 189. Prior to the start of grading or any ground disturbance, the applicant shall identify a responsible person experienced in NPDES compliance who is acceptable to the City Engineer and Public Works Director. The designated NPDES person (superintendent) shall be present, on the project site Monday through Friday and on all other days when the probability of rain is forty percent (40%) or greater and prior to the start of and 226
during all grading or clearing operations until the release of grading bonds. The superintendent shall have full authority to rent equipment and purchase materials to the extent needed to effectuate Best Management Practices. The superintendent shall be required to assume NPDES compliance during the construction of streets, storm drainage systems, all utilities, buildings, and final landscaping of the site. 190. Development shall conform to the current requirements for the County’s MS4 permit for new development.
191. All storm water facilities shall conform to the most current Ventura County Technical Guidance Manual for Storm Water Quality Control Measures. 192. In-tract improvements shall incorporate Low Impact Development standards. 193. A State Storm Water Pollution Prevention Plan (SWPPP) is required for all ground disturbing activities that are greater than one acre. Prior to Grading Permit issuance, a Notice of Intent (NOI) and the SWPPP shall be filed with the State Water Resources Control Board, and a Waste Discharger Identification (WDID) number must be obtained.
194. Development shall conform to the current requirements for the County’s MS4 permit for new developments. The applicant’s engineer shall design required water quality mitigation features and related storm water mitigation volumes (Qpm) in accordance with the Ventura County Technical Guidance Manual for Stormwater Quality Control Measures, NPDES and City requirements. Calculations shall be submitted with the Project Drainage Report. All covenants shall be submitted to the Public Works Department for review and approval and be recorded prior to Grading Permit issuance. 195. Prior to the issuance of a Grading Permit applicant shall provide for the mitigation of the project’s storm water quality impacts. The applicant shall provide calculations for the sizing and location of devices intended to mitigate such impacts and coordinate the locations of required water quality treatment devices on the Storm Drain Plans. The details of the required devices shall be included in the Project Drainage Report and detailed on the project plans.
VESTING TENTATIVE MAP
196. Except as otherwise provided by a development agreement or pursuant to Government Code § 66452.6(a)(1), a tentative map expires twenty-four (24) months after the date the map was approved unless an extension is granted.
197. The right conferred upon a vesting tentative map is vested for an initial period of twentyfour (24) months from the date a final map is recorded. Where several final maps are recorded on various phases of a project, approved by a single vesting tentative map, this period begins for each when the final map for that phase is recorded. 198. The initial period is automatically extended by any time used by the City for processing a complete application for a grading permit or for design or architectural review, if the period used by the city to process the application exceeds (30) days from the date the complete application is filed.
227
199. The conditions under which an extension of time or stay is granted for a vesting tentative map must be consisted with that established for tentative maps. 200. If a developer submits a complete application for a building permit during the initial time period, or any granted extension, the rights conferred by the vesting map continue until the expiration of that building permit or any extension to that building permit that the City may issue.
201. Within twenty-four (24) months after the date the City Council approves a tentative map, or any later date that may be authorized by an extension granted pursuant to this article, the subdivider must cause the subject property to be accurately surveyed and a Final Map to be prepared in conformance with the tentative map and any and all applicable conditions.
202. The Final Map must be processed in accordance with SPMC §§16.80.410 through
18.80.470.
VENTURA COUNTY AIR POLLUTION CONTROL DISTRICT
203. Prior to commencement of earthwork operations, the permittee shall submit documentation to the satisfaction of the City of Santa Paula and the Ventura County Air Pollution Control District that all non-road diesel powered equipment used onsite for site preparation and construction activities, including site earthmoving and grading operations, are registered in the California Air Resources Board’s Diesel Off-road Online Reporting System and meets or exceeds requirements specified in the California Air Resources Boards In-Use Off-Road Vehicle Regulation. Such documentation shall be submitted to the City of Santa Paula and the Ventura County Air Pollution Control District for any applicable equipment brought on-site subsequent to commencement of earthwork operations. Moreover, all such documentation shall be maintained and made available to the City of Santa Paula and the Ventura County Air Pollution Control District for the duration of project construction.
SPECIAL CONDITIONS
204. Applicant shall prepare plans for common mailbox areas that places mailbox structures off the sidewalk and roads. Adequate downward-shielded lighting to see mailbox numbers shall also be included.
ADDED CONDITIONS
205. The applicant and city staff shall conduct a study session with the residents of Felkins Road to address concerns regarding potential access impacts to their private street caused by the project.
206. The CC&Rs shall include language for the enforcement by the HOA of garages to be used for vehicle parking.
228
By signing this document, the Applicant certifies that he/she has read, understood, and agrees to the project conditions listed in this document.
_______________________________ _____________
Applicant/Applicant’s Representative Date
229
ATTACHMENT B
PROJECT PLANS
230
24.0'
24.0'
20.0'
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36.0'
24.0' 24.0' 24.0' 24.0' 24.0' 24.0'
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24.0' 24.0' 24.0' 24.0'
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'R' LANE (PVT.)
'Q' LANE (PVT.)
"Q" LANE (PVT.)
'Q' LANE (PVT.)
'S' LANE (PVT.)
'A' LANE (PVT.)
"J" LANE (PVT.) "J" LANE (PVT.) 'G' LANE (PVT.)
'H' LANE (PVT.)
'I' LANE (PVT.)
'K' LANE (PVT.)
'L' LANE (PVT.)
'M' LANE (PVT.)
'N' LANE (PVT.)
'P' LANE (PVT.)
'F' LANE (PVT.)
'D' LANE (PVT.)
'E' LANE (PVT.)
'C' LANE (PVT.)
'B' LANE (PVT.)
'O' LANE (PVT.)
FELKINS ROAD
16.0'
P1
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P1
2Y
VCTC RAIL RIGHT OF WAY
FAULKNER ROAD
P1 P2 2X P3 P4 P3 2X
P3 P4 P3 2Y P1
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P1 P2 2X P4 P3 P3 2X P3 13.9'
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P1
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FAULKNER ROAD
P1 P2 2X P3 P4 P3 2X
P3 P4 P3 2Y P1
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Project Summary
Total Site Area: + 9.7 AcresTotal Units: 213 Homes ▪ (27) Plan 1 - 13% ▪▪ ± 1,243 SF ▪▪ 2 Bedroom | 2.5 Bath ▪ (28) Plan 2 - 13% ▪▪ ± 1,526 SF ▪▪ 3 Bedroom | 3.0 Bath ▪ (49) Plan 2X - 23% ▪▪ ± 1,597 SF ▪▪ 3 Bedroom | 3.0 Bath ▪ (5) Plan 2Y - 2% ▪▪ ± 1,973 SF ▪▪ 4 Bedroom | 3.0 Bath | Flex ▪ (73) Plan 3 - 34% ▪▪ ± 1,606 SF ▪▪ 3 Bedroom | 2.5 Bath | Den ▪ (31) Plan 4 - 15% ▪▪ ± 1,840 SF ▪▪ 4 Bedroom | 3.5 Bath | Den Density: 21.9 Homes per Acre
Average SF
per Unit: 1,590 SF
Parking:
Required: 480 Spaces (2.27 spaces per home) ▪ (213) Home x 2 Car Garage = 426 Spaces ▪ (213) Guest x 0.25 Spaces = 54 SpacesProvided: 480 Spaces (2.27 spaces per home) ▪ Garage: 426 Spaces ▪ Head In: 16 Spaces (9' x 20') ▪ Parallel: 38 Spaces (8' x 24') Notes:1. Site plan is for conceptual purposes only.
2. Site plan must be reviewed by planning, building, and fire departments for code compliance.
3. Base information per civil engineer.4. Civil engineer to verify all setbacks and grading information5. Building Footprints might change due to the final design elevation style.
6. Open space area is subject to change due to the balcony design of the elevation.
7. Building setbacks are measured from property lines to building foundation lines.
895 FAULKNER ROAD 0 20 80
SANTA PAULA CA
20' Public Utility Easement
20' Public Utility Easement
20' Public Utility Easement
Open Play Lawn ▪ +2,325 SF
Main Recreation Amenity ▪ + 6,458 SF ▪ Pool ▪ Spa ▪ Decking ▪ Restroom Building Seating niche
with seatwalls ▪ + 721 SF
CONCEPTUAL SITE PLAN 23
| 2020241 | 08-08-25
40 SP-TR6114
C 2025 WILLIAM HEZMALHALCH ARCHITECTS, INC. dba WHA.
Comment Response:
Per Section 16.85.070 Development Standards item (B) clarify on plans compliance with 90 cubic feet of private storage (enclose weatherproofed and lockable). - Achieved within enclosed garage space withsuspended overhead storage rack.
Area Breakdown
Lot Coverage: 162,617 SF | 3.73 AC (38.3%)
Streets,
Uncovered Parking
& Driveways: 130,843 SF | 3.0 AC (30.9%)
Landscape:
Softscape 69,068 SF | 1.56 AC (16.0%)
*4,530 SF | 0.10 AC (0.01%)
Hardscape 46,391 SF | 1.06 AC (11.0%)
Amenities: 10,042 SF | 0.23 AC (2.3%)
Total Area: 423,491 SF | 9.72 AC*Note: This area was not calculated towardthe landscape "softscape" number as they contained:transformers, water meters, fire hydrants and other etc.
Seating niche
with seatwalls ▪ +754 SF
Water Retention Basin ▪ + 4,624 SF
Seating niche
with seatwalls ▪ + 543 SF
Fire Hydrant (typ.)
231
0 4 8 16
© 2025 WILLIAM HEZMALHALCH ARCHITECTS, INC. DBA WHA | 2020241.02 | 05-13-25 3 895 FAULKNER ROAD
SANTA PAULA, CA ORANGE COUNTY . LOS ANGELES . BAY AREA . SACRAMENTO
CONCEPT REVIEW SUBMITTAL
895 FAULKNER ROAD
SANTA PAULA, CA ORANGE COUNTY . LOS ANGELES . BAY AREA . SACRAMENTO 7-Plex Building Elevations| Spanish
(A) Spanish
Inspired by the architecture of Spain and the Spanish missions, the Spanish style consists of simple massing with mostly gable end roofs of concrete “S” tile or barrel tile. Shallow roof pitches vary from 3:12 to 5:12 with minimal overhangs. Exterior walls consist of light-colored smooth stucco with sand finish. Other elements include recessed windows, gable end tile detailing, wrought iron details and decorative shutters.
Note: Artist’s Conception; Colors, Materials And Application May Vary.
RIGHT
LEFT
REAR
4 4 3R 3R 3R 2X 1 2 FRONT
2 2 1 2X 3R 3R 3R 4
+34’-9”
8’-1” 9’-1” 9’-1”
TOP OF RIDGE
T.O.P.
F.F.
F.F.
F.F.
T.O.P.
T.O.P. 8”
F.G. VARIES PER CIVIL
+28’-8” TO TOP OF EAVE
30’-0” MAX FOR FIRE ACCESS
2x6 WOOD FASCIA CONCRETE LOW ‘S’
ROOF TILE
STUCCO FINISH
(COLOR: BEIGE)
STUCCO OVER FOAM TRIM
DECORATIVE SHUTTER STUCCO FINISH
(COLOR: OFF WHITE)
WROUGHT IRON
POTSHELF
FOAM CORBELS WITH
STUCCO OVER
COACH LIGHT
DECORATIVE CLAY PIPE
232
20'-0" x 20'-0" MIN. GARAGE CLEAR SPACE 20'-0" x 20'-0" MIN. GARAGE CLEAR SPACE 20'-0" x 20'-0" MIN. GARAGE CLEAR SPACE 20'-0" x 20'-0" MIN. GARAGE CLEAR SPACE 160'-612" GARAGE 35'-6" CLG. HGT. 8'-7" CONC. ELEC. 8'-7" CLG. CONC. LOW VOLT. 8'-7" CLG. CONC. 20'-0" x 20'-0" MIN. GARAGE CLEAR SPACE FUTURE PRIVATE STORAGE 90 C.F. (OVERHEAD) 15'-0" x 4'-0" x 1'-6" BY HOMEOWNER. ENTRY CLG. HGT. 8'-7" CARPETFLEX CLG. HGT. 8'-7" CARPET ENTRY CLG. HGT. 8'-7" CARPET FLEX CLG. HGT. 8'-7" CARPET GARAGE CLG. HGT. 8'-7" CONC. FUTURE PRIVATE STORAGE 90 C.F. (OVERHEAD) 15'-0" x 4'-0" x 1'-6" BY HOMEOWNER. 20'-0" x 20'-0" MIN. GARAGE CLEAR SPACE 20'-0" x 20'-0" MIN. GARAGE CLEAR SPACE 20'-0" x 20'-0" MIN. GARAGE CLEAR SPACE 20'-0" x 20'-0" MIN. GARAGE CLEAR SPACE 20'-0" x 20'-0" MIN. GARAGE CLEAR SPACE 20'-0" x 20'-0" MIN. GARAGE CLEAR SPACE GARAGE CLG. HGT. 8'-7" CONC. GARAGE CLG. HGT. 8'-7" CONC. GARAGE CLG. HGT. 8'-7" CONC. GARAGE CLG. HGT. 8'-7" CONC. GARAGE CLG. HGT. 8'-7" CONC. ENTRY CLG. HGT. 8'-7" CARPET FLEX CLG. HGT. 8'-7" CARPET ENTRY CLG. HGT. 8'-7" CARPET FLEX CLG. HGT. 8'-7" CARPET ENTRY CLG. HGT. 8'-7" CARPET ENTRY CLG. HGT. 8'-7" CARPET ENTRY CLG. HGT. 8'-7" CARPET FUTURE PRIVATE STORAGE 90 C.F. (OVERHEAD) 15'-0" x 4'-0" x 1'-6" BY HOMEOWNER. FUTURE PRIVATE STORAGE 90 C.F. (OVERHEAD) 15'-0" x 4'-0" x 1'-6" BY HOMEOWNER. FUTURE PRIVATE STORAGE 90 C.F. (OVERHEAD) 15'-0" x 4'-0" x 1'-6" BY HOMEOWNER. FUTURE PRIVATE STORAGE 90 C.F. (OVERHEAD) 15'-0" x 4'-0" x 1'-6" BY HOMEOWNER. FUTURE PRIVATE STORAGE 90 C.F. (OVERHEAD) 15'-0" x 4'-0" x 1'-6" BY HOMEOWNER. 161'-512" 37'-912" DECK STUCCO CLG. ELASTOMERIC KITCHEN CLG. HGT. 9'-1" H.S. DINING CLG. HGT. 9'-1" H.S. GREAT ROOM CLG. HGT. 9'-1" CARPET BDRM. 4 9'-1" CLG. CARPET BATH 3 CLG. HGT. 9'-1" H.S. GREAT ROOM CLG. HGT. 9'-1" CARPET DINING CLG. HGT. 9'-1" H.S. KITCHEN CLG. HGT. 9'-1" H.S. DECK STUCCO CLG. ELASTOMERIC PWDR. CLG. HGT. 9'-1" H.S. DINING CLG. HGT. 9'-1" H.S. KITCHEN CLG. HGT. 9'-1" H.S. DECK STUCCO CLG. ELASTOMERIC PWDR. CLG. HGT. 9'-1" H.S. DINING CLG. HGT. 9'-1" H.S. KITCHEN CLG. HGT. 9'-1" H.S. DECK STUCCO CLG. ELASTOMERIC PWDR. CLG. HGT. 9'-1" H.S. KITCHEN CLG. HGT. 9'-1" H.S. GREAT ROOM CLG. HGT. 9'-1" CARPET GREAT ROOM CLG. HGT. 9'-1" CARPET GREAT ROOM CLG. HGT. 9'-1" H.S. GREAT ROOM CLG. HGT. 9'-1" H.S. DECK STUCCO CLG. ELASTOMERIC DECK STUCCO CLG. ELASTOMERIC DECK STUCCO CLG. ELASTOMERIC GREAT ROOM CLG. HGT. 9'-1" H.S. KITCHEN CLG. HGT. 9'-1" H.S. KITCHEN CLG. HGT. 9'-1" H.S. DINING CLG. HGT. 9'-1" H.S. DINING CLG. HGT. 9'-1" H.S. BATH 3 CLG. HGT. 9'-1" H.S. BDRM. 3 9'-1" CLG. CARPET BDRM. 3 9'-1" CLG. CARPET BATH 3 CLG. HGT. 9'-1" H.S. PWDR. CLG. HGT. 9'-1" H.S. 161'-512"37'-912" BDRM. 3 8'-10" CLG. CARPET BATH 2 CLG. HGT. 8'-10" H.S. BDRM. 1 10'-1" CLG. CARPETBDRM. 2 8'-10" CLG. CARPETBATH 1 CLG. HGT. 8'-10" H.S. W.I.C. 8'-10" CLG. CARPET BDRM. 1 10'-1" CLG. CARPET W.I.C. 8'-10" CLG. CARPET BATH 1 CLG. HGT. 8'-10" H.S. BATH 2 CLG. HGT. 8'-10" H.S. BDRM. 3 8'-10" CLG. CARPET BDRM. 2 8'-10" CLG. CARPET BDRM. 1 10'-1" CLG. CARPET W.I.C. 8'-10" CLG. CARPET BATH 1 CLG. HGT. 8'-10" H.S. BATH 2 CLG. HGT. 8'-10" H.S. BDRM. 3 8'-10" CLG. CARPET BDRM. 2 8'-10" CLG. CARPET BDRM. 1 10'-1" CLG. CARPET W.I.C. 8'-10" CLG. CARPET BATH 1 CLG. HGT. 8'-10" H.S. BATH 2 CLG. HGT. 8'-10" H.S. BDRM. 3 8'-10" CLG. CARPET BDRM. 2 8'-10" CLG. CARPET W.I.C. 8'-10" CLG. CARPET BATH 2 CLG. HGT. 8'-10" H.S. W.I.C. 8'-10" CLG. CARPET BATH 1 CLG. HGT. 8'-10" H.S. BDRM. 2 8'-10" CLG. CARPET BDRM. 1 10'-1" CLG. CARPET BATH 1 CLG. HGT. 8'-10" H.S. BDRM. 2 8'-10" CLG. CARPET W.I.C. 8'-10" CLG. CARPET BATH 2 CLG. HGT. 8'-10" H.S. W.I.C. 8'-10" CLG. CARPET W.I.C. 8'-10" CLG. CARPET BDRM. 2 8'-10" CLG. BATH 2 CARPET CLG. HGT. 8'-10" H.S. BATH 1 CLG. HGT. 8'-10" H.S. BDRM. 1 10'-1" CLG. CARPET BDRM. 1 10'-1" CLG. CARPET C 2025 WILLIAM HEZMALHALCH ARCHITECTS, INC. dba WHA. | 2020241 | 06-09-25 895 FAULKNER ROAD SANTA PAULA, CA PRELIMINARY DESIGN SET FIRST FLOOR Composite Floor Plan Building Type 700 - 7Plex Townhomes SECOND FLOOR THIRD FLOOR PLAN 2 PLAN 1 PLAN 2X PLAN 3R PLAN 3R PLAN 3R PLAN 4 PLAN 2 PLAN 1 PLAN 2X PLAN 3R PLAN 3R PLAN 3R PLAN 4 PLAN 2 PLAN 1 PLAN 2X PLAN 3R PLAN 3R PLAN 3R PLAN 4 Plan 1 2 BEDROOM|2.5 BATH| ± 1,243 S.F. Plan 2 3 BEDROOM|3 BATH| ± 1,526 S.F. Plan 2X 3 BEDROOM|3 BATH| ± 1,597 S.F. Plan 3R 3 BEDROOM|2.5 BATH|FLEX ± 1,606 S.F. Plan 4 4 BEDROOM|3 BATH| ± 1,840 S.F. 233
ATTACHMENT C
VESTING TENTATIVE TRACT MAP NO. 6114
234
244.42 TW
238.65 FS
244.42 TW 238.65 FS 240.88 TW 238.63 FS
FELKINS RD Know what's below. Callbefore you dig. HN R.C.E. 59589 DATE: PROJECT ENGINEER __.__.__ 6/11/2025 PH PH 235
119 W. HYDE PARK BLVD. INGLEWOOD, CA 90302 Phone: 424-351-6800 D & D ENGINEERING, INC. 2 2 CITY OF SANTA PAULA LEGAL DESCRIPTION AND NOTES ’ ’ ’ ’ ’ ’ ’ ’ ’ ” ’ ’ ’ ” ’ ’ ” ’ ” ’ ’ ’ ’ ’ ’ ’ ’ ” ’ ” ’ ” ’ ’ ” ’ ” ’ ’ ’ ’ ” ’ ’ ’ ’ ’ ’ ” ’ ” ’ ’ ’ ’ ” ’ ’ ” ’ ’ ’ ” ’ ’ ’ ” ’ ’ ’ ’ ’ ’ ” ’ ’ ’ ’ ’ ’ ” ’ ” ” ’ ” ’ ’ ’ ’ ’ ’ ’’ ’ ’ ’ ’ 236
ATTACHMENT D
FEIR ADDENDUM & APPENDICES
Use the following link to view this document
https://santapaulaced.box.com/s/vsn4br83ohivhsz3m8o9sxow3skoe903 237
ATTACHMENT E
CC&Rs
238
RECORDING REQUESTED BY:
AND WHEN RECORDED MAIL TO:
Pham Law Group, Inc.
709 E. Colorado Blvd., Suite 200
Pasadena, CA 91101
Attn: Bill Pham, Esq.
______________________________________________________________________________ (Space Above For Recorder’s Use)
DECLARATION OF COVENANTS, CONDITIONS AND
RESTRICTIONS AND RESERVATION OF EASEMENTS
FOR
[895 FAULKNER ROAD]
THIS DECLARATION CONTAINS A BINDING ARBITRATION PROVISION IN ACCORDANCE WITH THE FEDERAL ARBITRATION ACT. ARBITRATION INCLUDES A WAIVER OF THE CONSTITUTIONAL RIGHT TO A JURY. YOU MUST READ THE
ARBITRATION PROVISION CAREFULLY AND SHOULD CONSULT LEGAL COUNSEL WITH ANY QUESTIONS.
239
i
TABLE OF CONTENTS
Page
ARTICLE I ......................................................................................................................................2
1. Definitions............................................................................................................................2
1.1 Annexable Territory.................................................................................................2
1.2 Architectural Committee or Committee...................................................................2
1.3 Articles.....................................................................................................................2
1.4 Assessment, Annual.................................................................................................2
1.5 Assessment, Capital Improvement...........................................................................2
1.6 Assessment, Reconstruction. ...................................................................................3
1.7 Assessment, Special.................................................................................................3
1.8 Association...............................................................................................................3
1.9 Association Property................................................................................................3
1.10 Beneficiary...............................................................................................................4
1.11 Board or Board of Directors. ...................................................................................4
1.12 Budget......................................................................................................................4
1.13 Bylaws......................................................................................................................4
1.14 City...........................................................................................................................4
1.15 Close of Escrow. ......................................................................................................4
1.16 Common Area..........................................................................................................4
1.17 Common Expenses...................................................................................................5
1.18 Common Interest Development. ..............................................................................5
1.19 Common Property....................................................................................................5
1.20 Condominium. .........................................................................................................5
1.21 Condominium Building. ..........................................................................................6
1.22 Condominium Plan. .................................................................................................6
1.23 Declarant..................................................................................................................6
1.24 Declaration...............................................................................................................6
1.25 Declaration of Alternative Dispute Resolution........................................................6
1.26 Deed of Trust. ..........................................................................................................7
1.27 Drainage and Stormwater Quality Improvements. ..................................................7
1.28 DRE..........................................................................................................................7 240
ii
1.29 Family. .....................................................................................................................7
1.30 FHA..........................................................................................................................7
1.31 FHLMC....................................................................................................................7
1.32 Fiscal Year. ..............................................................................................................7
1.33 FNMA......................................................................................................................8
1.34 GNMA. ....................................................................................................................8
1.35 Governmental Agency. ............................................................................................8
1.36 Improvements. .........................................................................................................8
1.37 Limited Warranty.....................................................................................................8
1.38 Maintenance Funds. .................................................................................................8
1.39 Maintenance Manual................................................................................................8
1.40 Manager. ..................................................................................................................9
1.41 Member, Membership..............................................................................................9
1.42 Mortgage..................................................................................................................9
1.43 Mortgagee, Mortgagor. ............................................................................................9
1.44 Notice and Hearing. .................................................................................................9
1.45 Notice of Addition. ..................................................................................................9
1.46 Owner.......................................................................................................................9
1.47 Person.....................................................................................................................10
1.48 Phase 1. ..................................................................................................................10
1.49 Phase of Development. ..........................................................................................10
1.50 Project. ...................................................................................................................10
1.51 Property..................................................................................................................10
1.52 Record, File, Recordation. .....................................................................................10
1.53 Residence. ..............................................................................................................10
1.54 Restrictions. ...........................................................................................................10
1.55 Rules and Regulations............................................................................................11
1.56 Separate Interest or Unit. .......................................................................................11
1.57 Subdivision Map. ...................................................................................................11
1.58 Telecommunications Facilities. .............................................................................11
1.59 Telecommunications Services. ..............................................................................11
1.60 Terrace(s). ..............................................................................................................11
1.61 VA..........................................................................................................................12 241
iii
ARTICLE II...................................................................................................................................12
2. Homeowners Association. .................................................................................................12
2.1 Organization of Association. .................................................................................12
2.2 Duties and Powers..................................................................................................12
2.3 Membership. ..........................................................................................................14
2.4 Transfer..................................................................................................................14
2.5 Classes of Membership. .........................................................................................14
2.6 Voting Rights. ........................................................................................................15
2.7 Repair and Maintenance by the Association..........................................................16
2.8 Unsegregated Real Property Taxes........................................................................18
2.9 Repair and Maintenance by Owners. .....................................................................19
2.10 Water Intrusion. .....................................................................................................21
2.11 Mold.......................................................................................................................21
2.12 Use of Agent. .........................................................................................................22 ARTICLE III..................................................................................................................................22
3. Rights in Common Property. .............................................................................................22
3.1 Association Easement. ...........................................................................................22
3.2 Partition..................................................................................................................22
3.3 Members’ Easements in Common Property. .........................................................22
3.4 Extent of Members’ Easements. ............................................................................23
3.5 Delegation of Use. .................................................................................................24
3.6 Waiver of Use. .......................................................................................................24
3.7 Damage by Member...............................................................................................24 ARTICLE IV .................................................................................................................................25
4. Architectural Review Committee. .....................................................................................25
4.1 Members of Committee. ........................................................................................25
4.2 Review of Plans and Specifications.......................................................................25
4.3 Condition of Approval. ..........................................................................................27
4.4 Commencement of Construction. ..........................................................................27
4.5 Meetings of the Committee....................................................................................27
4.6 No Waiver of Future Approvals. ...........................................................................27
4.7 Compensation of Members....................................................................................28
4.8 Correction of Defects.............................................................................................28 242
iv
4.9 Scope of Review. ...................................................................................................29
4.10 Variances................................................................................................................29
4.11 Appeals. .................................................................................................................30 ARTICLE V...................................................................................................................................30
5. Association Maintenance Funds and Assessments. ...........................................................30
5.1 Personal Obligation of Assessments......................................................................30
5.2 Maintenance Funds of Association........................................................................30
5.3 Purpose of Assessments.........................................................................................31
5.4 Allocation of Assessments.....................................................................................31
5.5 Limitations on Annual and Special Assessment Increases. ...................................32
5.6 Annual Assessments/Commencement-Collection.................................................33
5.7 Capital Improvement Assessments........................................................................35
5.8 Delinquency. ..........................................................................................................35
5.9 Creation and Release of Lien.................................................................................36
5.10 Enforcement of Liens.............................................................................................37
5.11 Priority of Assessment Lien...................................................................................38 ARTICLE VI .................................................................................................................................39
6. Project Easements and Rights of Entry..............................................................................39
6.1 Easements. .............................................................................................................39
6.2 Rights of Entry.......................................................................................................42 ARTICLE VII................................................................................................................................43
7. Declarant’s Rights and Reservations. ................................................................................43 ARTICLE VIII...............................................................................................................................47
8. Residence and Use Restrictions.........................................................................................47
8.1 Single Family Residences......................................................................................47
8.2 Alterations; Inside and Outside Installations. ........................................................48
8.3 Animal Regulations. ..............................................................................................49
8.4 Antenna..................................................................................................................49
8.5 Business or Commercial Activity. .........................................................................50
8.6 Common Property Facilities. .................................................................................51
8.7 Drainage.................................................................................................................51
8.8 Firearms and Fireworks. ........................................................................................51
8.9 Further Subdivision................................................................................................52 243
v
8.10 Garbage/Trash........................................................................................................52
8.11 Hazardous, Toxic, Flammable, Corrosive or Explosive Materials........................52
8.12 Nuisances. ..............................................................................................................53
8.13 Parking and Vehicular Restrictions. ......................................................................53
8.14 Rights of Handicapped...........................................................................................54
8.15 Roof: Access Restrictions......................................................................................55
8.16 Signs.......................................................................................................................55
8.17 Sound Attenuation. ................................................................................................56
8.18 Terraces..................................................................................................................56
8.19 View Obstructions. ................................................................................................57
8.20 Water Supply System.............................................................................................58
8.21 Window Coverings. ...............................................................................................58 ARTICLE IX .................................................................................................................................58
9. Insurance............................................................................................................................58
9.1 Duty to Obtain Insurance; Types. ..........................................................................58
9.2 Waiver of Claim Against Association. ..................................................................59
9.3 Right and Duty of Owners to Insure. .....................................................................59
9.4 Notice of Expiration Requirements. ......................................................................60
9.5 Insurance Premiums...............................................................................................60
9.6 Trustee for Policies. ...............................................................................................60
9.7 Actions as Trustee..................................................................................................61
9.8 Annual Insurance Review......................................................................................61
9.9 Required Waiver. ...................................................................................................61 ARTICLE X...................................................................................................................................62
10. Destruction of Improvements. ...........................................................................................62
10.1 Restoration of the Property. ...................................................................................62
10.2 Sale of Property and Right to Partition..................................................................63
10.3 Interior Damage. ....................................................................................................64
10.4 Notice to Owners and Listed Mortgagees..............................................................64 ARTICLE XI .................................................................................................................................64
11. Eminent Domain. ...............................................................................................................64
11.1 Project Condemnation............................................................................................64
11.2 Condemnation of Common Property. ....................................................................65 244
vi
11.3 Condemnation of Condominiums..........................................................................65
11.4 Condemnation of Portions of Units. ......................................................................65
11.5 Portions of Awards in Condemnation Not Compensatory for Value of Real Property..................................................................................................................66
11.6 Notice of Owners and Mortgagees. .......................................................................66 ARTICLE XII................................................................................................................................66
12. Rights of Mortgagees.........................................................................................................66 ARTICLE XIII...............................................................................................................................70
13. Duration and Amendment..................................................................................................70
13.1 Duration. ................................................................................................................70
13.2 Amendment............................................................................................................70
13.3 Protection of Declarant. .........................................................................................73 ARTICLE XIV...............................................................................................................................73
14. Enforcement of Certain Bonded Obligations.....................................................................73
14.1 Consideration by Board of Directors. ....................................................................73
14.2 Consideration by the Members. .............................................................................74 ARTICLE XV................................................................................................................................74
15. General Provisions.............................................................................................................74
15.1 Legal Proceedings; Arbitration; Actions Arising From Restrictions.....................74
15.2 Notification of Construction Claims......................................................................75
15.3 Notice to Members of Other Civil Action Against Declarant. ..............................76
15.4 Alternative Dispute Resolution..............................................................................77
15.5 Violation of Restrictions........................................................................................82
15.6 Severability. ...........................................................................................................83
15.7 Interpretation..........................................................................................................83
15.8 Mergers or Consolidations.....................................................................................83
15.9 Use of Common Property. .....................................................................................83
15.10 No Public Right or Dedication...............................................................................84
15.11 No Representations or Warranties. ........................................................................84
15.12 Nonliability and Indemnification...........................................................................84
15.13 Notices. ..................................................................................................................85
15.14 Priorities and Inconsistencies.................................................................................85
15.15 Constructive Notice and Acceptance. ....................................................................86 245
vii
15.16 Declarant Delivery of Documents. ........................................................................86
15.17 Disclosure of Agricultural Operations and Right to Farm.....................................87
15.18 Disclosure of Prohibited Vehicles. ........................................................................88
15.19 Additional Provisions.............................................................................................88 ARTICLE XVI...............................................................................................................................88
16. Annexation of Additional Property....................................................................................88
16.1 Additions by Declarant. .........................................................................................88
16.2 Other Additions......................................................................................................88
16.3 Rights and Obligations-Added Territory. ..............................................................89
16.4 Notice of Addition of Territory..............................................................................89
16.5 Deannexation; Amendment. ..................................................................................90
16.6 Power of Attorney..................................................................................................90 ARTICLE XVII .............................................................................................................................91
17. Covenants in Favor of Local Jurisdiction. .........................................................................91
17.1 Local Jurisdiction...................................................................................................91 246
1 DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
AND RESERVATION OF EASEMENTS
FOR
[895 FAULKNER ROAD]
THIS DECLARATION OF COVENANTS, CONDITIONS AND
RESTRICTIONS AND RESERVATION OF EASEMENTS FOR [895 FAULKNER ROAD] (“Declaration”) is made by SP HARRIDGE SANTA PAULA, LLC, a Delaware limited liability company (“Declarant”).
P R E A M B L E:
A. Declarant is the owner of that certain real property (“Phase 1”) located in the City of Santa Paula (“City”), County of Ventura (“County”), State of California, described as follows:
Phase 1 Property, as shown and described in the Condominium Plan for Tract 6114 Phase 1 recorded concurrently herewith,
encumbering Lot 1 of Tract No. 6114, as shown on that certain Subdivision Map filed on ______________, in Book ____ at Pages ___ through ___, inclusive, of Miscellaneous Records (Maps), in the Office of the Ventura County Recorder.
B. It is the desire and intention of Declarant to subdivide the Property (as hereinafter defined) to create condominium estates in accordance with the Davis-Stirling Common Interest Development Act and to impose mutually beneficial restrictions under a general plan of improvement for the benefit of all the condominium estates created. To such end, Declarant deems it desirable to create a corporation under the Nonprofit Mutual Benefit Corporation Law of the State of California which will be delegated and assigned the powers of owning and maintaining the Common Property (as hereinafter defined), administering and enforcing the covenants and restrictions established by this Declaration, and collecting and disbursing the assessments and charges hereinafter created.
C. Declarant hereby declares that all of the Property is to be held, conveyed, hypothecated, encumbered, leased, rented, used, occupied and improved subject to the following limitations, restrictions, reservations, rights, easements, conditions and covenants, all of which are declared and agreed to be in furtherance of a plan for the protection, subdivision, maintenance, improvement and sale of the Property for the purpose of enhancing the value, desirability and attractiveness of the Property. All provisions of this Declaration, including without limitation the easements, uses, obligations, covenants, conditions and restrictions hereof, are hereby imposed as equitable servitudes upon the Property. All of the limitations, restrictions, reservations, rights, easements, conditions and covenants herein shall run with and burden the Property and shall be binding on and for the benefit of all of the Property and all Persons having or acquiring any right, title or interest in the Property, or any part thereof, and their successive owners and assigns. 247
2 E. Declarant, its successors, assigns and grantees, covenant and agree that the undivided interest in the Common Area, the Membership in the Association, any easements conveyed therewith and the fee title to each respective Unit conveyed therewith shall not be separated or separately conveyed, and each such undivided interest, Membership and easement shall be deemed to be conveyed or encumbered with its respective Unit even though the description in the instrument of conveyance or encumbrance may refer only to the Unit; provided, however, that this restriction upon the severability of the component interests of the Condominiums shall not extend beyond the period for which the right to partition the Property is suspended in accordance with § 4610 of the California Civil Code (or any successor or replacement statute) and the provisions of Article X hereof. Any conveyance by an Owner of a Condominium, or any portion thereof, shall be presumed to convey the entire Condominium, together with a Membership in the Association.
ARTICLE I
1. Definitions.
Unless otherwise expressly provided, the following words and phrases, when used in this Declaration, shall have the following specified meanings.
1.1 Annexable Territory.
Annexable Territory shall mean the real property described in Exhibit “A” attached hereto and incorporated herein by this reference, all or any portion of which may from time to time be made subject to this Declaration pursuant to Article XVI hereof.
1.2 Architectural Committee or Committee.
Architectural Committee or Committee shall mean the Architectural Review Committee created pursuant to Article IV hereof.
1.3 Articles.
Articles shall mean the Articles of Incorporation of the Association, filed or to be filed in the Office of the Secretary of State of the State of California, as such Articles may be amended from time to time.
1.4 Assessment, Annual.
Annual Assessment shall mean a charge against a particular Owner and his or her Condominium, representing his or her share of the total Common Expenses which are to be levied among all the Owners and their Condominiums in the Project in the manner and proportions provided herein.
1.5 Assessment, Capital Improvement.
Capital Improvement Assessment shall mean a charge which the Board may from time-to-time levy against each Owner and his or her Condominium, representing a portion of the 248
3 cost to the Association for installation or construction of any Improvements on the Common Property. Such charge shall be levied among all of the Condominiums in the Project in the same proportions as are Annual Assessments.
1.6 Assessment, Reconstruction.
Reconstruction Assessment shall mean a charge which the Board may from timeto-time levy against each Owner and his or her Condominium, representing a portion of the cost to the Association for reconstruction of any Improvements on the Common Property.
Reconstruction Assessments shall be levied among the Owners and their Condominiums in the same proportions as Annual Assessments.
1.7 Assessment, Special.
Special Assessment shall mean (i) a charge which the Board may from time to time levy against each Owner and his or her Condominium in order to raise funds for unexpected operating or other costs, insufficient operating or reserve funds, or other purposes as the Board in its discretion considers appropriate; or (ii) a charge against a particular Owner directly attributable to, or reimbursable by, the Owner, equal to the cost incurred by the Association for corrective action performed pursuant to the provisions of this Declaration, or a reasonable fine or penalty assessed by the Board, plus interest and other charges on such Special Assessments as provided for in this Declaration. Special Assessments shall not include any late payment penalties, interest charges or costs (including attorneys’ fees) incurred by the Association in the collection of Annual, Capital Improvement and Reconstruction Assessments.
1.8 Association.
Association shall mean the Tract 6114 Owners Association, a California nonprofit mutual benefit corporation (formed pursuant to the Nonprofit Mutual Benefit Corporation Law of the State of California), its successors and assigns. Concurrently with or prior to the first Close of Escrow for a Condominium in the Project, the Association shall be subject to the Declaration and all rights and responsibilities set forth therein with respect to the Property.
1.9 Association Property.
Association Property shall mean all of the real and personal property and Improvements to which the Association shall hold fee title, or over which the Association shall hold an easement, a license or a permit for the common use and enjoyment of the Members as provided herein. The Association Property shall include such property or easements, which are now or hereafter conveyed to the Association pursuant to or in connection with the operation of this Common Interest Development and any Notice of Addition Recorded pursuant to Article XVI of this Declaration and the Phase of Development that such portion of the Association Property is located in. The Association Property in a Phase includes, without limitation, the following, if applicable: the Condominium Building (excluding the Units and any easement appurtenant thereto), the land, bearing walls, columns, vertical supports, girders, ceiling joists, subfloors, unfinished floors, unfinished walls, roofs, slabs, foundations, foundation membranes, utility installations (except the utility installations and outlets thereof when located within a Unit or used or operated exclusively for such Unit) required to provide power, telephone, telecommunications, 249
4 light, gas, water, sewage, and drainage, any interior sprinklers, sprinkler pipes, and sprinkler heads which protrude into the airspace of a Unit, other built-in fire protection devices and equipment, landscaping, poles and signs. Declarant hereby expressly reserves for the benefit of the Association a nonexclusive easement for access, ingress and egress over the Property to the extent necessary to perform the maintenance, repair and replacement of the Association Property in the Project. The Association Property in each Phase will be conveyed to the Association prior to or concurrent with the first Close of Escrow for the sale of a Lot in each Phase, and shall be maintained by the Association on the first day of the first calendar month following the first Close of Escrow for the sale of a Lot in such Phase.
1.10 Beneficiary.
Beneficiary shall mean a Mortgagee under a Mortgage or a Beneficiary under a Deed of Trust, as the case may be, and the assignees of such Mortgagee or Beneficiary.
1.11 Board or Board of Directors.
Board of Directors or Board shall mean the Board of Directors of the Association.
1.12 Budget.
Budget shall mean a written, itemized estimate of the income and Common Expenses of the Association in performing its functions under this Declaration, which Budget shall be prepared pursuant to the Bylaws.
1.13 Bylaws.
Bylaws shall mean the Bylaws of the Association, as such Bylaws may be amended from time to time.
1.14 City.
City shall mean the City of Santa Paula, State of California.
1.15 Close of Escrow.
Close of Escrow shall mean the date on which a deed is Recorded conveying a Condominium pursuant to a transaction requiring the issuance of a Final Subdivision Public Report by the DRE.
1.16 Common Area.
Common Area for each Phase of Development shall mean all of the real properties and improvements within such Phase, except the Association Property and the Separate Interests located in such Phase. The Common Area for each Phase of Development is identified on the Condominium Plan applicable to such Phase. The Common Area in Phase 1 is comprised of a three-dimensional air space volume, the lower vertical boundary of which is a horizontal plane at an elevation of five hundred feet (500’) above sea level, and the upper boundary of which extends 250
5 indefinitely upwards, and the lateral boundaries of which are the lateral boundaries of the Phase 1 Property.
1.17 Common Expenses.
Common Expenses shall mean those expenses for which the Association is responsible under this Declaration, including, but not limited to, the actual and estimated costs of:
maintenance, cleaning, utilities, management, operation, and repair and replacement of the Common Property; unpaid Special Assessments, Reconstruction Assessments and Capital Improvement Assessments; the cost of maintenance of any recreational facilities on the Common Property; the costs of any and all utilities metered to more than one Unit, if any, and other commonly metered charges for the Property, including, without limitation, the cost to read, maintain, repair and replace any sub-meters; the cost of maintenance of any clustered mailboxes and any address identification signs; the cost of annual inspection of the Project; the costs of management and administration of the Association including, but not limited to, compensation paid by the Association to managers, accountants, attorneys and other employees; the costs of any gardening, security, trash pickup and other services benefiting the Common Property; the costs of fire, casualty and liability insurance, workers’ compensation insurance, errors and omissions and director, officer and agent liability insurance, and other insurance covering the Property and the directors, officers and agents of the Association, including earthquake insurance, if provided; the costs of bonding of the members of the Board; taxes paid by the Association, including any blanket tax assessed against the Property; the amounts paid by the Association for discharge of any lien or encumbrance levied against the Property, or portions thereof; and the costs of any other item or items incurred by the Association, for any reason whatsoever in connection with the Property, for the common benefit of the Owners.
1.18 Common Interest Development.
Common Interest Development shall mean and refer to “Common Interest Development” as defined in California Civil Code § 4100 (or any successor or replacement statute).
1.19 Common Property.
Common Property shall mean the Common Area and the Association Property.
Declarant hereby expressly reserves for the benefit of the Association a nonexclusive easement for access, ingress and egress over the Common Property and the Units to the extent necessary to perform the maintenance, repair, and replacement of the Common Property in accordance with this Declaration.
1.20 Condominium.
Condominium shall mean an estate in real property as defined in California Civil Code § 4125(b) (or any successor or replacement statute), and shall consist of an undivided fee simple ownership interest in the Common Area in a Phase of Development, together with a separate ownership interest in fee in a Unit and all easements appurtenant thereto. Subject to the provisions of Section 11.4 hereof, the fractional undivided fee simple interest in the Common Area in a Phase of Development (i) shall be appurtenant to each Unit in that Phase of Development, (ii) 251
6 shall be a fraction having one (1) as its numerator and the total number of Units in that Phase of Development as its denominator, and (iii) shall be held by the Owners of Condominiums in that Phase of Development as tenants in common.
1.21 Condominium Building.
Condominium Building shall mean each building containing the Units and a portion of the Common Area within a Phase of Development.
1.22 Condominium Plan.
Condominium Plan shall mean each of the Recorded condominium plan, as such may be amended from time to time, for all or a portion of the Project, consisting of (1) a description or survey map of the Project or portion thereof, which shall refer to or show monumentation on the ground, (2) a three-dimensional description of the Project or portion thereof, one or more dimensions of which may extend for an indefinite distance upwards or downwards, in sufficient detail to identify the Common Area, the Association Property and each Separate Interest, as applicable, and (3) a certificate consenting to the Recordation thereof signed and acknowledged by the record owner of fee title to the Project, or portion thereof, and by either the trustee or the Beneficiary of each Recorded Deed of Trust, and the Mortgagee of each Recorded Mortgage encumbering the Project or portion thereof.
1.23 Declarant.
Declarant shall mean SP Harridge Santa Paula, LLC, a Delaware limited liability company, its successors, and any Person to which it shall have assigned all or any of its rights hereunder by an express written assignment. In the event the lender of a Mortgage encumbering the Condominiums owned by Declarant obtains title to such Condominiums, pursuant to judicial foreclosure or the powers provided in such Mortgage, the first Mortgagee, as Declarant’s successor, shall take title to such Condominiums along with all Declarant’s rights set forth herein, including all voting rights set forth in Section 2.6 below.
1.24 Declaration.
Declaration shall mean this Declaration of Covenants, Conditions and Restrictions and Reservation of Easements for [895 FAULKNER ROAD], as it may be amended from time to time.
1.25 Declaration of Alternative Dispute Resolution.
Declaration of Alternative Dispute Resolution shall mean that certain Declaration of Alternative Dispute Resolution for Iron & Oak recorded concurrently herewith. Any and all claims, controversies, breaches or disputes by or between or among the Association, any Owner or Owners, and/or Declarant arising from or related to this Declaration, the Association Property, any Unit, the sale of any Unit, or any transaction related thereto shall be subject to Section 15.4 below and the Declaration of Alternative Dispute Resolution for Iron & Oak. 252
7 1.26 Deed of Trust.
Deed of Trust shall mean a Mortgage or a Deed of Trust, as the case may be.
1.27 Drainage and Stormwater Quality Improvements.
Drainage and Stormwater Quality Improvements shall mean the storm drain, stormwater, drainage and stormwater quality improvements in the Project. The Drainage and Stormwater Quality Improvements may include Low-Impact Development (LID)-design drainage and stormwater treatment improvements. These improvements may include below-ground storm drain lines, inlets and outlets, stormwater quality treatment and conveyance improvements, that include catch basin filters and filtration, detention basins, brow ditches, bioswales, area drains, storm drain lines, roof drains and downspouts, tree well filters or similar biofiltration units in the parkways (if any) and any outlet from the biofilters to the Ventura County Watershed Protection District’s storm drain system and appurtenant improvements constructed in the Project.
1.28 DRE.
DRE shall mean the California Department of Real Estate and any successors thereto.
1.29 Family.
Family shall mean one (1) or more natural Persons each related to the other by blood, marriage or adoption, or one (1) or more natural Persons not all so related, but who maintain a common household in a Unit.
1.30 FHA.
FHA shall mean the Federal Housing Administration of the United States Department of Housing and Urban Development and any department or agency of the United States government which succeeds to the FHA’s functions of insuring notes secured by Mortgages on residential real estate.
1.31 FHLMC.
FHLMC shall mean the Federal Home Loan Mortgage Corporation (also known as Freddie Mac) created by Title II of the Emergency Home Finance Act of 1970, and any successors to such corporation.
1.32 Fiscal Year.
Fiscal Year shall mean the fiscal accounting and reporting period of the Association selected by the Board from time to time.
253
8 1.33 FNMA.
FNMA shall mean the Federal National Mortgage Association, a governmentsponsored private corporation established pursuant to Title VIII of the Housing and Urban Development Act of 1968, and any successors to such corporation.
1.34 GNMA.
GNMA shall mean the Government National Mortgage Association administered by the United States Department of Housing and Urban Development, and any successor to such association.
1.35 Governmental Agency.
Governmental Agency shall mean any local, county, state and/or federal governmental or quasi-governmental agency, authority or regulatory body (including any public or private utility company including cable television) that has jurisdiction over the Project or any part thereof.
1.36 Improvements.
Improvements shall mean all structures and appurtenances thereto of every type and kind located within the Project, including, but not limited to, the following (if applicable):
dwelling units and other buildings, recreational facilities or areas, roads, awnings, terraces, balconies, decks, patios, lobbies, walkways, hallways, stairways, storage areas, trash areas, roads, driveways, parking areas, fences, screening walls, block walls, retaining walls, bearing walls, columns, vertical supports, girders, ceiling joists, subfloors, floors, walls, roofs, slabs, foundations, paint on surfaces of any structure, heating and cooling equipment, water heaters, water softeners, reservoirs, tanks, pumps, motors, ducts, flues and chutes, conduits, pipes, plumbing, sprinkler systems, irrigation systems, drainage systems, landscaping, hedges, trees, shrubs, windbreaks, poles, signs, fire protection systems, television antennas, wires and other utility installations.
1.37 Limited Warranty.
Limited Warranty shall mean that certain express written warranty known as the “Limited Warranty” which is provided by Declarant to Owners.
1.38 Maintenance Funds.
Maintenance Funds shall mean the accounts created for receipts and disbursements of the Association pursuant to Section 5.2 hereof.
1.39 Maintenance Manual.
Maintenance Manual shall mean the maintenance recommendations and guidelines set forth in the manual which may be prepared by the Declarant or its authorized agents and provided to the Associations and to Owners, specifying obligations for maintenance of the Common Property by the Associations and the Units by the Owners, as updated and amended from 254
9 time to time. Each Owner who receives a Maintenance Manual is obligated to provide a copy of such Maintenance Manual to any successor purchaser of such Owner’s Unit.
1.40 Manager.
Manager shall mean the Person, employed by the Association, pursuant to and limited by Section 2.12 hereof, and delegated the duties, power or functions of the Association as limited by said Section.
1.41 Member, Membership.
Member shall mean every Person holding a Membership in the Association, pursuant to Section 2.3 hereof. Membership shall mean the property voting and other rights and privileges of Members as provided herein, together with the correlative duties and obligations contained in the Restrictions.
1.42 Mortgage.
Mortgage shall mean any Recorded mortgage or deed of trust or other conveyance of a Condominium or other portion of the Property to secure the performance of an obligation, which conveyance will be reconveyed upon the completion of such performance. The term “Deed of Trust” or “Trust Deed” when used shall be synonymous with the term “Mortgage.”
1.43 Mortgagee, Mortgagor.
Mortgagee shall mean a Person to whom a Mortgage is made and shall include the Beneficiary of a Deed of Trust; Mortgagor shall mean a Person who mortgages his or her or its property to another (i.e., the maker of a Mortgage), and shall include the Trustor of a Deed of Trust. The term “Trustor” shall be synonymous with the term “Mortgagor” and the term “Beneficiary” shall be synonymous with the term “Mortgagee.”
1.44 Notice and Hearing.
Notice and Hearing shall mean written notice and a hearing before the Board, at which the Owner concerned shall have an opportunity to be heard in person, or by counsel at the Owner’s expense, in the manner further provided in the Bylaws.
1.45 Notice of Addition.
Notice of Addition shall mean an instrument Recorded pursuant to Article XVI hereof to annex all or any portion of the Annexable Territory.
1.46 Owner.
Owner shall mean the record owner(s), whether one (1) or more Persons or entities, of a fee simple interest in a Condominium within the Project, including Declarant, but excluding those having such interests merely as security for the performance of an obligation with respect to each Condominium owned by Declarant. The term “Owner” shall include the seller (but not the 255
10 buyer) under an executory contract of sale. The term “Owners” shall generally mean the owner(s) of Condominiums within the Project. The term “Owner” shall not include a Mortgagee prior to its acquisition of fee title to the Unit encumbered by its Mortgage.
1.47 Person.
Person shall mean a natural individual, a corporation, a partnership, a trust, or any other entity with the legal right to hold title to real property.
1.48 Phase 1.
Phase 1 shall mean all of the real property described in Paragraph A of the Preamble of this Declaration.
1.49 Phase of Development.
Phase of Development or Phase shall mean (a) Phase 1 or (b) all the real property covered by a Notice of Addition Recorded pursuant to Article XVI hereof for which a Final Subdivision Public Report has been issued by the DRE, unless otherwise defined in such Notice of Addition.
1.50 Project.
Project shall mean [895 FAULKNER ROAD] residential development and shall be comprised of the Property and all Improvements located therein, including, without limitation, the Common Property and the Units therein. The Project is a “condominium project” as defined in § 4125(a) of the California Civil Code (or any successor or replacement statute).
1.51 Property.
Property shall mean (a) Phase 1, and (b) each other Phase of Development described in a Notice of Addition.
1.52 Record, File, Recordation.
Record, File or Recordation shall mean, with respect to any document, the recordation or filing of such document in the Office of the County Recorder of the county in which the Property is located.
1.53 Residence.
Residence shall mean the residential dwelling portion of a Unit, intended for use by a single Family.
1.54 Restrictions.
Restrictions shall mean this Declaration, the Articles, Bylaws and the Rules and Regulations of the Association from time to time in effect. 256
11 1.55 Rules and Regulations.
Rules and Regulations shall mean the rules and regulations adopted by the Board pursuant to this Declaration or the Bylaws, as such Rules and Regulations may be amended from time to time.
1.56 Separate Interest or Unit.
Separate Interest or Unit shall mean a separate interest in space as defined in § 4125(b) of the California Civil Code (or any successor or replacement statute). Each Separate Interest or Unit shall be a separate freehold estate, as separately shown, numbered and designated in the Condominium Plan, and shall consist of the airspaces designated on the Condominium Plan, including the Residential Element, Garage Element, Porch Element, and, if applicable, Balcony Element or Patio Element, as such terms are defined in the Condominium Plan. In interpreting deeds, declarations and plans, the existing physical boundaries of a Unit (or a Unit constructed or reconstructed in substantial accordance with the Declaration, the Condominium Plan and the original plans thereof), shall be conclusively presumed to be its boundaries, rather than the description expressed in the deed, Condominium Plan or Declaration, regardless of settling or lateral movement of the Condominium Building and regardless of minor variances between boundaries, as shown on the Condominium Plan or defined in the deed and Declaration, and the boundaries of a building as constructed or reconstructed.
1.57 Subdivision Map.
Subdivision Map shall mean the subdivision map for Tract No. 6114 filed on ________________, in Book ____ at Pages ___ through ___, inclusive, of Miscellaneous Records (Maps), in the Official Records of Ventura County.
1.58 Telecommunications Facilities.
Telecommunications Facilities shall mean equipment, cables, conduits, inner ducts, vaults, connecting hardware, wires, poles, transmitters, towers, antennae and other facilities, structures and Improvements necessary for, or used in, the provision of Telecommunications Services. Declarant may expand this definition in any supplemental declaration.
1.59 Telecommunications Services.
Telecommunications Services shall mean services for cable television, communications, telecommunications, high-speed data, telephony, intranet, internet, broad-band communications, information transfer, transmission, video and other similar services. Declarant may expand this definition in any supplemental declaration.
1.60 Terrace(s).
Terrace shall mean a patio, a balcony, or a porch element within the Project as shown and depicted on the Condominium Plan and constituting a portion of a Unit located within the Project.
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12 1.61 VA.
VA shall mean the Department of Veterans Affairs of the United States of America and any department or agency of the United States government which succeeds to the VA’s function of issuing guaranties of notes secured by Mortgages on residential real estate.
ARTICLE II
2. Homeowners Association.
2.1 Organization of Association.
The Association is or shall be incorporated under the name of Tract 6114 Owners Association, as a corporation not for profit under the Nonprofit Mutual Benefit Corporation Law of the State of California.
2.2 Duties and Powers.
(a) General Duties and Powers. The duties and powers of the Association are those set forth in the Declaration, the Articles and Bylaws, together with the general and implied powers of a nonprofit mutual benefit corporation, generally to do any and all things that a corporation organized under the laws of the State of California may lawfully do which are necessary or proper, in operating for the peace, health, comfort, safety and general welfare of its Members, subject only to the limitations upon the exercise of such powers as are expressly set forth in the Articles, the Bylaws and in this Declaration. The Association shall further have the right to install or construct capital Improvements on the Common Property. The Association may at any time, and from time to time reconstruct, replace or refinish any Improvement or portion thereof upon the Common Property in accordance with the original design, finish or standard of construction of such Improvement; and may also replace destroyed trees or other vegetation and plant trees, shrubs and ground cover upon any portion of the Common Property. The Association may employ personnel necessary for the effective operation and maintenance of the Common Property, including, without limitation, the employment of legal, management and accounting services. The Association shall be responsible for exercising all rights and discharging all responsibilities applicable thereto under the terms of the Declaration. The Association shall make available for inspection by any prospective purchaser of a Condominium, any Owner of a Condominium, and the Beneficiaries, insurers and guarantors of the first Mortgage on any Condominium, current copies of the Declaration, the Articles, the Bylaws, the Rules and Regulations and all other books, records, and financial statements of the Association required to be available for inspection pursuant to California Civil Code § 5200 (or any successor or replacement statute). The Association shall additionally have the power, but not the duty, to enter into contracts with Owners or other persons to provide services or to maintain and repair Improvements within the Property and elsewhere which the Association is not otherwise required to provide or maintain pursuant to this Declaration; provided, however, any such contract shall provide for the payment to the Association for the costs of providing such services or maintenance.
(b) Litigation. Subject to the provisions of this Declaration, the Association shall have the power, but not the duty, to initiate, defend, settle or intervene in 258
13 mediation, arbitration, judicial or administrative proceedings on behalf of the Association in matters pertaining to (a) the application or enforcement of this Declaration and (b) damage to the Common Property; provided, however that no representative of Declarant on the Board shall vote on the initiation of any claim under California Civil Code § 895, et seq. (or any successor or replacement statute), such that Declarant shall have no control over the Association’s ability to decide whether to initiate a claim under such statutory provisions and in the event of such a vote, the affirmative vote of a majority of the non-Declarant representatives on the Board shall be binding so long as a quorum of the Board is present at any meeting where such vote is taken.
The Association and not the individual Members shall have the power to pursue any claims or other actions using the non-adversarial proceedings for construction defects in the Common Property pursuant to Section 15 below. Any recovery by the Association with respect to any damage to or defect in the Common Property shall be utilized solely for the purpose of paying for the costs of obtaining the recovery and for correcting such damage or defect. (c) Maintenance Manuals. The Association shall maintain at the offices of the Association a copy of the Maintenance Manual, if one is provided by Declarant to the Owners, and shall make available to each such Owner upon request a copy of the Maintenance Manual applicable to the Units. The Association shall have the right to charge the requesting Owner a fee for the copying of such Maintenance Manual. The Association shall also comply with provisions of the Maintenance Manual for the Common Area, if one is provided by Declarant to the Association. The Board may, from time to time, make appropriate revisions to the Association’s Maintenance Manual based on the Board’s review thereof, to update such manual to provide for maintenance according to current industry practices so long as such changes do not reduce the useful life or functionality items being maintained. (d) Members’ Approval of Construction Defect Actions. In the event that any claim or other actions brought by the Association under California Civil Code § 895, et seq., and any successor or replacement statutes or laws, involving allegations of construction defects relating to the Common Property, is not resolved pursuant to the non-adversarial procedures set forth in Section 15.4 below, the Association shall not initiate an action or arbitration under Section 15.4 below or otherwise without first obtaining the consent of the Owners other than Declarant, constituting more than sixty-seven percent (67%) of the voting power of the Association at a meeting or election of the Association, conducted in accordance with the provisions of California Corporations Code §§ 7510, et. seq. and 7613 and any successor statutes or laws.
(e) Adoption of Rules and Regulations. The Board or the Members of the Association by majority vote, may adopt reasonable Rules and Regulations that are not inconsistent with this Declaration relating to the use of the Common Property and all its facilities, and the conduct of Owners and their Family, tenants, guests and invitees with respect to the Project and other Owners. The Board shall adopt and amend Rules and Regulations in accordance with the procedures and requirements set forth in California Civil Code §§ 4340 - 4370 and any amendments thereto. Written copies of such Rules and Regulations and any schedule of fines and penalties adopted by the Board shall be furnished to Owners. All changes to the Rules and Regulations shall be delivered within fifteen (15) days after they are adopted by either: (i) posting in a conspicuous place in the Common Property; or (ii) sending to the Owners 259
14 via first-class mail or by any system or technology designed to record and communicate messages.
2.3 Membership.
Every Owner, upon becoming the Owner of a Condominium, shall automatically become a Member of the Association, and shall remain a Member thereof until such time as his or her ownership ceases for any reason, at which time his or her Membership in the Association shall automatically cease. Ownership of a Condominium shall be the sole qualification for Membership in the Association. All Memberships shall be appurtenant to the Condominium conveyed, and with the exception of Declarant, a Person shall be deemed an Owner of a Condominium only upon Recordation of a deed conveying the Condominium to such Person. Except as may otherwise be expressly provided herein, the rights, duties, privileges and obligations of all Members of the Association shall be as provided in the Restrictions.
2.4 Transfer.
The Membership held by any Owner shall not be transferred, pledged or alienated in any way, except upon the sale or encumbrance of such Owner’s Condominium, and then only to the purchaser or Beneficiary of such Condominium. A prohibited transfer is void, and will not be reflected upon the books and records of the Association. A Class A Member who has sold his or her Condominium to a contract purchaser under an agreement to purchase shall be entitled to delegate to the contract purchaser his or her Membership rights in the Association. The delegation shall be in writing and shall be delivered to the Board before the contract purchaser may vote.
However, the contract seller shall remain liable for all charges and assessments attributable to his or her Condominium until fee title to the Condominium sold is transferred, as further provided in Section 5.1 of this Declaration. If the Owner of any Condominium fails or refuses to transfer the Membership registered in his or her name to the purchaser of the Condominium upon transfer of fee title thereto, then upon receipt of satisfactory evidence of such transfer the Board of Directors shall have the right to record the transfer upon the books of the Association and to allow the purchaser to vote at meetings of the Association. Until satisfactory evidence of such transfer has been presented to the Board, the purchaser shall not be entitled to vote at meetings of the Association. The Association may levy a reasonable transfer fee against a new Owner and his or her Condominium (which fee shall be added to the Annual Assessment chargeable to such new Owner) to reimburse the Association for the administrative cost of transferring the Membership to the new Owner on the records of the Association, provided such fee does not exceed the Association’s actual cost involved in changing its records of ownership.
2.5 Classes of Membership.
The Association shall have two (2) classes of voting Membership.
Class A. Class A Members shall originally be all Owners except the Declarant, for so long as there exists a Class B Membership. Class A Members shall be entitled to one (1) vote for each Condominium owned by such Class A Member and subject to assessment. Declarant shall become a Class A Member with regard to Condominiums owned by Declarant upon conversion of Declarant’s Class B Membership as provided below. When more than one (1) 260
15 Person owns any Condominium, all of those Persons shall be Members. The vote of such Condominium shall be exercised as they among themselves determine in accordance with Section
2.6, but in no event shall more than one (1) Class A vote be cast for any Condominium.
Class B. The Class B Member shall be Declarant. The Class B Member shall be entitled to three (3) votes for each Condominium owned and subject to assessment, provided that the Class B Membership shall cease and be converted to Class A Membership immediately upon the first to occur of the following events:
(a) The second (2nd) anniversary of the first Close of Escrow in the Phase of Development for which a Final Subdivision Public Report was most recently issued; or (b) The fourth (4th) anniversary of the first Close of Escrow pursuant to the Final Subdivision Public Report for Phase 1.
2.6 Voting Rights.
(a) All voting rights shall be subject to the Restrictions. Except as provided in Section 14.2 of this Declaration and Section 4.8 of the Bylaws, as long as there exists a Class B Membership, any provision of this Declaration, the Articles or Bylaws which expressly requires the vote or written consent of a prescribed majority of the voting power of the Members of the Association other than Declarant for action to be taken by the Association, is not intended to preclude Declarant from casting votes attributable to Units which Declarant owns, and shall require the approval of such prescribed majority of the voting power of each class of Membership. Except as provided in Section 14.2 of this Declaration and Section 4.8 of the Bylaws, when the Class B Membership has terminated, any provision of this Declaration, the Articles or Bylaws which expressly requires the vote or written consent of a prescribed majority of the voting power of the Members of the Association other than Declarant for action to be taken by the Association, is not intended to preclude Declarant from casting votes attributable to Units which Declarant owns, and shall require the vote or written consent of Owners representing such prescribed majority of both the total voting power of the Association and the voting power of the Association residing in Owners other than Declarant. (b) At any meeting of the Association, each Owner (except as otherwise provided in Article II, Section 2.5 with respect to the voting power of Declarant), shall be entitled to cast no more than one (1) vote for each Condominium owned as shown on the Condominium Plan. Where there is more than one (1) record Owner of a Condominium (collectively, “Co-owners” and each a “Co-owner”), all of those Co-owners shall be Members and may attend any meeting of the Association, but only one (1) of those Co-owners shall be entitled to exercise the single vote to which the Condominium is entitled. Co-owners owning the majority interests in a Condominium shall from time to time designate in writing one (1) of their number to vote. Fractional votes shall not be allowed, and the vote for each Condominium shall be exercised, if at all, as a unit. Where no voting Co-owner is designated or if the designation has been revoked, the vote for the Condominium shall be exercised as the Co-owners owning the majority interests in the Condominium mutually agree. Unless the Board receives a written objection in advance from a Co-owner, it shall be conclusively presumed that the voting Co-owner is acting with the consent of his or her Co-owners. No vote shall be cast for any 261
16 Condominium if the Co-owners present in person or by proxy owning the majority interests in such Condominium cannot agree to said vote or other action. The nonvoting Co-owner or Coowners shall be jointly and severally responsible for all of the obligations imposed upon the jointly-owned Condominium and shall be entitled to all other benefits of ownership. All agreements and determinations lawfully made by the Association in accordance with the voting percentages established herein, or in the Bylaws of the Association, shall be deemed to be binding on all Owners, their successors and assigns.
2.7 Repair and Maintenance by the Association.
(a) Maintenance Standards. Subject to Article X pertaining to destruction of Improvements and Article XI pertaining to eminent domain, the Association shall paint, maintain, repair and replace the Common Property and all Improvements thereon, or shall contract for such maintenance, repair and replacement to assure maintenance of the Common Property and all Improvements thereon, in a clean, functional, litter free, sanitary, and attractive condition, in accordance with applicable manufacturer standards and recommendations, the schedules set forth in the Maintenance Manual, and all applicable Governmental Agency requirements, in a manner consistent with projects of like quality; provided, however, except as expressly provided herein, the Association shall not be responsible for or obligated to perform those items of maintenance, repair or replacement of the Units (the maintenance of which is the responsibility of the Owner thereof as provided in Section 2.9), nor shall the Association be responsible for or obligated to perform those items of maintenance, repair or replacement of the Common Property and all Improvements thereon which are the responsibility of a governmental or quasi-governmental entity. Subject to the qualifications set forth above in this Section, the Board shall determine, in its sole discretion, the level and frequency of maintenance of the Common Property.
(b) Maintenance Items. Without limiting the generality of the foregoing, the Association shall without limitation have the following maintenance rights and obligations pertaining to this Project:
(1) The Association shall be responsible for the maintenance, repair, and payment of all centrally-metered water, gas, electric, and other utility services and equipment, Common Property refuse equipment and collection, fire services, and any mechanical or electrical equipment in the Common Property, except any equipment maintained by the Owner.
The Association shall maintain and read all utility sub-meters on the Property and determine the utility costs and assessments applicable to each Unit;
(2) The Association shall be responsible for payment of all Common Expenses;
(3) The Association shall be responsible for the repair and maintenance of all recreational facilities and Improvements located on the Common Property; (4) The Association shall be responsible for the repair and maintenance, in a clean and well-maintained condition, of all parking areas, private streets, driveways, walkways and other means of ingress and egress located in the Common Property. 262
17 (5) The Association shall be responsible for the repair and maintenance of all clustered mailboxes which are reserved for exclusive use of Owners within the Project;
(6) The Association shall be responsible for the maintenance of all trees and landscaping located on the Common Property (including, without limitation, maintaining vegetation necessary to avoid erosion, controlling weed growth and providing for irrigation, within the limits of drought restrictions, if any, and providing, maintaining, and repairing sprinklers and other landscape maintenance equipment and facilities as necessary) in a fertilized, trimmed and otherwise attractive and first-class condition and in accordance with all applicable legal requirements (but excluding any area to be maintained by the Owners); (7) The Association shall be responsible for maintenance and repair of the plumbing (excluding plumbing lines and fixtures which exclusively serve a Unit, sink clogs, toilet clogs and garbage disposal clogs when located within the Units), privately owned sewer line, and storm drain and stormwater quality improvements located in the Common Property;
(8) The Association shall be responsible for the maintenance, repair, and replacement of any common fire alarm monitoring system, sprinkler systems (including the interior fire sprinkler system designed to serve each Unit, if any), and any related facilities (except the outlets thereof when located within Units); (9) The Association shall be responsible for the periodic maintenance of the exterior of the Condominium Buildings (excluding any area to be maintained by the Owners), including, without limitation, painting of the exterior doors; (10) The Association shall regularly and promptly remove any and all graffiti from the Common
(11) If, and only if, requested to do so by Declarant, the Association shall (i) retain a licensed professional to conduct an annual inspection of the roof, windows, balconies, and storm drains for water intrusion, (ii) conduct an annual visual inspection of the Common Property to identify any possible defects in the construction of any Improvements located thereon, (iii) send to the Owner of each Unit an annual survey or questionnaire to report any possible defects discovered by such Owner with respect to construction of the Improvements located on such Owner’s Unit, and (iv) promptly prepare a summary of the results of the annual inspection conducted by the Association and the Owners. The Association shall, at the earliest practicable date after receiving any inspection report from a licensed professional and/or preparing the summary set forth above, forward a copy of the summary to Declarant at its then current address, unless Declarant instructs otherwise;
(12) The Association shall have the right, without obligation, to perform all corrective janitorial and repair work within any Unit if the Owner thereof fails to perform such work; and
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18 (13) The Association and each Owner shall maintain a comprehensive maintenance log which details all maintenance actions and compliance with the maintenance provisions set forth in any Maintenance Manual and this Declaration.
No Owner shall interfere with the exercise by the Association of its right to maintain the Common Property or to perform any of its obligations pertaining to this Project. Declarant hereby grants to the Association easements for access across the Common Property and the Units as is necessary to allow maintenance obligations set forth herein.
(c) Pest Eradication. If determined by the Board to be economically feasible, the Association may, but shall not be obligated to, provide for an inspection and preventive program for the prevention and eradication of infestation by pests and organisms in the Property. If the Board adopts an inspection and preventive program for the prevention and eradication of infestation by termites, insects, pests, and other organisms, the Association, upon reasonable notice (which shall be given no less than fifteen (15) days nor more than thirty (30) days before the date of temporary relocation) to each Owner and the occupants of his or her Unit, may require such Owner and occupants to temporarily relocate from such Unit in order to accommodate efforts by the Association to eradicate such infestation. The notice shall state the reason for the temporary relocation, the date and time of the beginning of treatment, the anticipated date and time of termination of treatment, and that the occupants will be responsible for their own accommodations during the temporary relocation. Each Owner, by accepting a deed to a Condominium, hereby acknowledges that such activities of the Association may temporarily impair the use of such Owner’s Unit and may constitute an inconvenience or nuisance to the Owners, hereby consents to such impairment, inconvenience or nuisance, and agrees to indemnify the Association against any claims with respect to such matters. Any damage caused to a Unit by such entry by the Board or by any person authorized by the Board shall be repaired by the Board as a Common Expense of the Association. All costs involved in maintaining the inspection and preventive program as well as repairing and replacing the Common Property and Improvements thereon when the need for such maintenance, repair or replacement is the result of termites, insects, pests or other organisms shall be a Common Expense subject to the restrictions applicable to Capital Improvement Assessments. (d) Charges to Owners. All such costs of maintenance, repairs and replacements for the Property shall be paid for as Common Expenses out of the Association Maintenance Funds as provided in this Declaration. It shall be the affirmative duty of the Board of Directors to require strict compliance with all provisions of this Declaration and to cause the Project to be inspected by the Architectural Committee for any violation thereof. The cost of any maintenance, repairs or replacements by the Association which is not the responsibility of the Association or which arises out of, or is caused by, the action or inaction of an Owner or such Owner’s Family, tenants, guests, invitees, or agents in violation of the Restrictions shall, after Notice and Hearing, be levied by the Board as a Special Assessment against such Owner.
2.8 Unsegregated Real Property Taxes.
If all of the Units in a Phase of Development (or in the overall Project) are taxed under a blanket tax bill covering all of such Phase (or all of the Project), each Owner shall pay his or her proportionate share of any installment due under the blanket tax bill to the Association at 264
19 least ten (10) days prior to the delinquency date; and the Association shall transmit the taxes to the appropriate tax collection agency on or before the delinquency date. Blanket taxes shall be allocated equally among the Owners and their Condominiums in such Phase based upon the total number of Units in such Phase. The Association shall, at least forty-five (45) days prior to the delinquency date of any blanket tax installment, deliver to each Owner in such Phase a copy of the tax bill, along with a written notice setting forth the Owner’s obligation to pay his or her proportionate share of the tax installment and the potential additional charges to the Owner for failure to comply. The Association shall pay the taxes on behalf of any Owner who does not pay his or her proportionate share. The Association shall add to the Annual Assessment of a delinquent Owner the amount of any sum advanced, plus interest at the rate of ten percent (10%) per annum and any amount necessary to reimburse the Association for any penalty or late charge actually assessed in connection with the blanket tax bill for a Phase of Development, which late charge results from the failure of the delinquent Owner to make timely payment of his or her proportionate share of the taxes. Until the Close of Escrow for the sale of seventy-five percent (75%) of the Condominiums in the Project, the foregoing provisions relating to the collection of taxes in connection with a blanket tax bill on all or any portion of the Project may not be amended without the express written consent of Declarant.
2.9 Repair and Maintenance by Owners.
Each Owner shall maintain, repair, replace, paint, paper, plaster, tile, finish and restore or cause to be so maintained, repaired, replaced and restored, at his or her sole expense, all interior portions of his or her Unit, including, but not limited to, all glass surfaces (excluding any maintenance or repair which is the responsibility of the Association), windows (including window frames, casings, locks, handles, latches, and caulking of windows), shutters, screens, all doors, doorways, door frames, (except for periodic painting or staining of the exterior surface of any entry doors or door frames of the Unit) hardware that are part of the entry system of the Unit, weather stripping, light bulbs and fixtures actuated from switches controlled from or separately metered to such Owner’s Unit, electrical switches and outlets, built-in cabinets, built-in appliances (including, without limitation, dishwashers, disposals, electric and/or gas ranges, ovens, microwave units, refrigerators, and washers and dryers), plumbing which exclusively serves such Owner’s Unit, interior plumbing fixtures including bathtubs, shower stalls, shower pans, toilets and sinks and related fixtures, the firebox of the fireplace (if any), interior surfaces of the walls, ceilings, floors and doors, and any other permanent fixtures within his or her Unit, in a properly functional, clean, sanitary and attractive condition, in accordance with the Condominium Plan, the original construction design of the Improvements in the Project, and all applicable manufacturer standards, guidelines and recommendations, and all applicable governmental rules, restrictions and requirements; provided, that, notwithstanding anything herein to the contrary, the Association shall be responsible for the periodic maintenance and painting of the exterior of all portions of the Condominium Buildings, including, without limitation, the exterior of all doors providing entrance to or from any Unit and the exterior of all windows or other trim located on the exterior of the Condominium Buildings. Windows and doors must be replaced with the same hardware as originally installed by Declarant, if such hardware is available. Otherwise, replacement hardware must be approved by the Architectural Committee. No bearing walls, ceilings, floors or other structural or utility bearing portions of the Condominium Building shall be pierced or otherwise altered or repaired by the Owner, without the prior written approval of the plans for the alteration or repair by the Architectural Committee. It shall be the further responsibility of each Owner, at 265
20 his or her sole expense, to clean and maintain the Terrace of his or her Unit, including cleaning all exterior glass window and door surfaces which are located on such Terrace, and to clear all leaves, mud, and other debris from all gutters or other drainage devices servicing such Terrace.
Notwithstanding any other provision herein, each Owner shall also be responsible for all maintenance and repair of any internal or external telephone and Telecommunications Services wiring wherever located which is designed to serve only his or her Unit, and shall be entitled to reasonable access over the Common Property for such purposes, subject to reasonable limitations imposed by the Association. It shall further be the duty of each Owner to pay when due all charges for any utility service which is separately metered to his or her Unit.
Each Owner shall regularly inspect the fire sprinklers in that are located within his or her Unit and arrange for regular pressure testing of the fire sprinkler system. Each owner shall regularly inspect smoke detectors and test the alarm system. Keep sources of direct heat away from fire sprinklers and fire detection systems. No Owner may modify, disconnect or remove any part of the fire sprinkler or fire detection or alarm systems in his or her Unit.
Subject to any required approval of the Architectural Committee, each Owner shall be responsible for maintaining those portions of any solar, heating or cooling equipment (including any filters and other appurtenance thereto) and other utilities which are located within or which exclusively serve his or her Unit, in accordance with manufacturers’ specifications and instructions concerning care and maintenance of such equipment.
If the Board does not adopt an inspection and preventive program with regard to any pests and other organisms pursuant to Section 2.7 herein, such a program shall be the responsibility of each Owner.
If any Owner shall permit any Improvement, the maintenance of which is the responsibility of such Owner, to fall into disrepair or to become unsafe, unsightly or unattractive, or to otherwise violate this Declaration, or any applicable governmental rules, restrictions, or requirements, the Board shall have the right to seek any remedies at law or in equity which it may have. In addition, the Board shall have the right, but not the duty, after Notice and Hearing as provided in the Bylaws, to enter upon such Owner’s Unit to make such repairs or to perform such maintenance and to charge the cost thereof to the Owner. Said cost shall be a Special Assessment enforceable as set forth in this Declaration.
Each Owner shall complete and return to the Association within thirty (30) days after receipt thereof the annual survey or questionnaire provided to each Owner to report any possible defects discovered by such Owner with respect to construction of the Improvements located on such Owner’s Unit.
Each Owner shall maintain a comprehensive maintenance log of all maintenance actions and compliance with maintenance provisions set forth in any Maintenance Manual.
No Owner may alter or modify any common in wall plumbing within the Project and shall not do anything to impact the cross connection of any common water line. 266
21 2.10 Water Intrusion.
Notwithstanding any other provision herein, in the event that there shall be intrusion of water into any Unit (including, without limitation, as a result of any roof, window, skylight, siding or other leaks (including, without limitation, plumbing leaks), and whether or not the cause of such leak constitutes an Association repair obligation), the Owner of the impacted Unit shall be obligated to immediately notify the Association of such event, and such Owner shall take all reasonable and appropriate action to mitigate such condition and to stop any such water intrusion as soon as possible. In the event of any water intrusion into or from the Common Areas and/or upon the Association’s receipt of notice from a Unit Owner regarding water intrusion in such Units, the Association shall thereafter take all appropriate action including a prompt inspection of the condition, repair of the condition (if such condition impacts the Common Area) and mitigation of mold or mildew. Each Owner shall be obligated to take all reasonable steps to mitigate any possible spread or accumulation of mold or mildew. Failure of any Owner to timely notify the Association of any water intrusion and take appropriate mitigation measures, and/or the failure of the Association to promptly repair such condition shall be cause to deny future claims against Declarant relating thereto, which claims could have been mitigated had earlier action been taken.
2.11 Mold.
Each Owner, by acceptance of a deed to a Unit, acknowledges, recognizes and understands that there is, and will always be, the presence of certain biological organisms within the Unit. Most typically, this will include the common occurrence of mold. In recent years, mold has received significant attention, as significantly increased levels of mold have accumulated and spread through residential dwellings. It is important to note that mold tends to proliferate in warm, wet areas. High levels of mold in an enclosed setting can lead to mild to significant detrimental health effects. As such, it is each Owner’s responsibility to maintain his or her Unit so as to avoid the accumulation of moisture and/or mold within the Unit. Such mitigation matters should include, without limitation, the frequent ventilation of the Unit, removal of standing water on balcony or patio areas, prompt repair of any leaks which permit water intrusion into the Unit, prompt repair of plumbing leaks within the Unit (irrespective of who may have caused any such leaks) and notification to the Association as required by Section 2.10 above. Each Owner also understands that the presence of indoor plants may also increase mold levels within the Unit. Also, the propping of large pieces of furniture against wall surfaces may lead to mold spore accumulation.
It is the responsibility of each Owner to monitor and maintain his or her Unit so as to mitigate and avoid the conditions which are likely to lead to the presence and/or spreading of mold. In the event that mold does appear within the Unit, it is also the Owner’s responsibility to promptly and properly treat such mold to minimize the spreading thereof and/or unhealthy conditions likely to arise as a result thereof. Such measures frequently include, but are not limited to, cleaning moldaffected surfaces with chlorine bleach. Each Owner is responsible to learn how to clean any affected Improvements. By acceptance of a deed to a Unit, each Owner acknowledges and agrees that Declarant will not be liable for any actual, special, incidental or consequential damages based on any legal theory whatsoever, including, but not limited to, strict liability, breach of express or implied warranty, negligence or any other legal theory with respect to the presence and/or existence of molds, mildew and/or microscopic spores, unless caused by the sole negligence or willful misconduct of Declarant.
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22 2.12 Use of Agent.
The Board of Directors, on behalf of the Association, may contract with a Manager for the performance of maintenance and repair and for conducting other activities on behalf of the Association, as may be determined by the Board. The maximum term of any such contract (“Management Contract”) shall be one (1) year, unless a longer term is (i) contained in a management contract, the terms of which have been approved by FHA or VA or reviewed by the DRE, or (ii) approved either by vote or written assent of a majority of the voting power of the Association residing in Members other than Declarant, in which case the maximum term of the Management Contract shall be three (3) years. Each such Management Contract approved by the Members pursuant to clause (ii) above, shall provide for its termination after one (1) year by either party thereto without cause and without payment of a termination fee upon no more than ninety (90) days’ written notice to the other party. Notwithstanding anything herein to the contrary, any Management Contract entered into by the Association while the Board is under the control of Declarant shall provide that following expiration of the Class B Membership, such Management Contract may be terminable, without any penalty, by the Association upon not more than ninety (90) days written notice to the other party.
ARTICLE III
3. Rights in Common Property.
3.1 Association Easement.
The Association shall have an easement over the Property for performing its duties and exercising its powers described in this Declaration. The Association’s obligations to maintain the Common Property in a Phase of Development shall commence on the date Annual Assessments commence on the Condominiums in such Phase of Development. Until commencement of Annual Assessments on the Condominiums in any Phase, the Common Property in such Phase shall be maintained by Declarant.
3.2 Partition.
Except as provided in this Declaration, there shall be no judicial partition of the Common Property, or any part thereof, for the term of the Project, nor shall Declarant, any Owner or any other Person acquiring any interest in any Condominium in the Project seek any such judicial partition.
3.3 Members’ Easements in Common Property.
Subject to the provisions of this Declaration and for the purposes set forth herein and subject to the terms of the Association, every Member of the Association shall have, for himself or herself, his or her Family, tenants, guests, and invitees, a nonexclusive easement of access, ingress, egress, use and enjoyment of, in and to the Common Property, and such easements shall be appurtenant to and shall pass with title to every Condominium in the Project. 268
23 3.4 Extent of Members’ Easements.
The rights and easements of use and enjoyment of the Common Property created for the Members by this Declaration shall be subject to the Restrictions, which include, without limitation, the following:
(a) The right of the Board to suspend the rights and easements of any Member, and the Persons deriving such rights and easements from any Member, for use and enjoyment of any recreational facilities within the Project, for any period during which the payment of any Annual, Special, Capital Improvement or Reconstruction Assessment against the Member and his or her Condominium remains delinquent, and, after Notice and Hearing as provided in the Bylaws, to suspend such rights and easements for the period set forth in the Bylaws for any violation of the Restrictions, it being understood that any suspension of use and enjoyment of any recreational facilities within the Project for either nonpayment of any Assessment or breach of the Restrictions shall not constitute a waiver or discharge of the Member’s obligation to pay assessments as provided in this Declaration, nor shall it in any way impinge on any Member’s right of access to or use of such Member’s Unit; (b) The right of the Association to consent to or otherwise cause the construction of additional Improvements on the Common Property and to consent to or otherwise cause the alteration or removal of any existing Improvements on the Common Property for the benefit of the Members of the Association;
(c) The right of the Association, acting through the Board, to grant, consent to or join in the grant or conveyance of easements, licenses or rights-of-way in, on or over the Common Property for purposes not inconsistent with the intended use of the Property as a residential Condominium project, including, without limitation, the granting of exclusive easements to Owners over portions of the Common Property to conform the boundaries of the Units and/or the Common Property to the as-built location of Improvements installed or constructed by Declarant;
(d) The rights and reservations of Declarant as set forth in this Declaration;
(e) The right of the Association, acting through the Board, to reasonably restrict access to roofs, maintenance and landscaped areas and similar areas of the Property;
(f) The right of the Association to reasonably limit the number of guests and tenants of the Owners using the Common Property, as provided in this Declaration; (g) The right of the Association, acting through the Board, to establish uniform Rules and Regulations for the use of the Common Property, as provided in this Declaration;
(h) The right of the Association in accordance with the Articles, Bylaws and this Declaration, with a vote or written assent of at least two-thirds (2/3rds) of the voting power of the Association, to borrow money for the purpose of improving, repairing, or 269
24 adding to the Common Property, and in aid thereof, subject to the provisions of Article XII of this Declaration, to mortgage, pledge, encumber by deed of trust, or hypothecate any or all of its real or personal property as security for money borrowed or debts incurred, provided that the rights of such Mortgagee shall be subordinated to the rights of the Owners; (i) The right of the Association, subject to the provisions of Article XII of this Declaration, to dedicate, release, alienate, or transfer the Common Property, or a portion thereof, to any public agency, authority, or utility for such purposes and subject to such conditions as may be agreed to by the Members; and
(j) The right of the Association, subject to the provisions of California Civil Code § 4600 (or any successor or replacement statute), to grant exclusive use of any portion of the Association Property to any Owner, except as specified therein.
3.5 Delegation of Use.
Any Member entitled to the right and easement of use and enjoyment of the Common Property may delegate his or her right to use and enjoyment of the recreational and common facilities to his or her tenants, contract purchasers or subtenants who reside in his or her Condominium, subject to reasonable regulation by the Board. A Member who has made such a delegation of rights shall not be entitled to use and enjoyment of the recreational and common facilities of the Project for so long as such delegation remains in effect.
3.6 Waiver of Use.
No Member may exempt himself or herself from personal liability for Assessments duly levied by the Association, or effect the release of his or her Condominium from the liens and charges thereof, by waiving use and enjoyment of the Common Property or by abandoning his or her Condominium.
3.7 Damage by Member.
Each Member shall be liable to the Association for any damage to the Common Property not fully reimbursed to the Association by insurance (including without limitation any deductible amounts under any insurance policies against which the Association files a claim for such damage) if the damage is sustained because of the negligence, willful misconduct or unauthorized or improper installation or maintenance of any Improvement by the Member, his or her Family, guests, tenants or invitees, or any other Persons deriving their right and easement of use and enjoyment of the Common Property from the Member, or his or her or their respective Family, guests, tenants or invitees, both minor and adult. However, the Association, acting through the Board, reserves the right to determine whether any claim shall be made upon the insurance maintained by the Association, and the Association further reserves the right, after Notice and Hearing as provided in the Bylaws, to levy a Special Assessment equal to the increase, if any, in insurance premiums directly attributable to the damage caused by the Member or the Person for whom the Member may be liable as described above. In the case of joint ownership of a Condominium, the liability of the owners shall be joint and several, except to the extent that the Association shall have previously contracted in writing with the joint owners to the contrary. After Notice and Hearing as provided in the Bylaws, the cost of correcting the damage to the extent not 270
25 reimbursed to the Association by insurance shall be a Special Assessment against such Member’s Condominium, and may be enforced as provided herein.
ARTICLE IV
4. Architectural Review Committee.
4.1 Members of Committee.
The Architectural Review Committee, sometimes referred to in this Declaration as the “Architectural Committee” or the “Committee,” shall consist of three (3) members. The initial members of the Committee shall consist of representatives of Declarant. Subject to the following provisions, Declarant shall have the right and power at all times to appoint or remove a majority of the members of the Architectural Committee or to fill any vacancy of such majority until either (i) Close of Escrow has occurred for the sale of ninety percent (90%) of all the Units in the overall development, or (ii) the fifth (5th) anniversary of the first Close of Escrow pursuant to the Final Subdivision Public Report for Phase 1, whichever occurs earlier. Commencing one (1) year from the issuance of the Final Subdivision Public Report for Phase 1, the Board shall have the power to appoint and remove one (l) member of the Architectural Committee. Following termination of Declarant’s right to appoint all or a portion of the members of the Committee pursuant to this Section 4.1, the Board shall have the power to appoint and remove all of the members of the Architectural Committee. Committee members appointed by the Board shall be from the Membership of the Association, but Committee members appointed by Declarant need not be Members of the Association. Board members may also serve as Committee members.
4.2 Review of Plans and Specifications.
The Committee shall consider and act upon any and all plans and specifications submitted for its approval under this Declaration and perform such other duties as from time to time shall be assigned to it by the Board, including the inspection of construction in progress to assure its conformance with plans approved by the Committee. No construction, alteration, removal, relocation, repainting, demolition, addition, modification, decoration, redecoration or reconstruction of any Improvement (including, without limitation, any bearing wall, ceiling, floor, window covering, plumbing, water system, and any landscaping or alteration of any established drainage pattern, plan or grade on any portion of the Property) which is a structural or utility component of the Condominium Building or is visible from the Common Property or another Unit in the Property or a public vantage, or otherwise expressly required by this Declaration to be submitted to the Architectural Committee for its review, shall be commenced or maintained, until the plans and specifications therefor showing the nature, kind, shape, height, width, color, materials and location of the same shall have been submitted to the Committee and approved in writing by the Committee; provided, however, that any Improvement may be repainted without Committee approval, so long as the Improvement is repainted the identical color with which it was last painted in compliance with all applicable Restrictions.
The Owner submitting the plans (“Applicant”) shall obtain a written, dated receipt for the plans and specifications from an authorized agent of the Committee and shall submit the plans to the principal office of the Association, or such other address as may be established from 271
26 time to time by the Board. Until changed by the Board, the address for the submission of such plans and specifications shall be the principal office of the Association. The Committee shall approve, in writing only, proposals or plans and specifications submitted for its approval only if it deems that the construction, alterations, or additions contemplated thereby in the locations indicated will not be detrimental to the appearance of the surrounding area of the Property as a whole, that the appearance of any structure affected thereby will be in harmony with the surrounding structures, that the construction thereof will not detract from the beauty, wholesomeness and attractiveness of the Common Property or the enjoyment thereof by the Members, and that the upkeep and maintenance thereof will not become a burden on the Association.
The Committee may condition its written approval of proposals or plans and specifications for any Improvement (1) upon the Applicant’s furnishing the Association with security acceptable to the Association against any mechanic’s lien or other encumbrance which may be Recorded against the Property as a result of such work, (2) on such changes therein as it deems appropriate, (3) upon the Applicant’s agreement to grant appropriate easements to the Association for the maintenance of the Improvements, (4) upon the Applicant’s agreement to install (at its sole cost) water, gas, electrical or other utility meters to measure any increased consumption, (5) upon the Applicant’s agreement to reimburse the Association for the cost of maintenance, (6) upon the Applicant’s agreement to complete the proposed work within a stated period of time, or (7) upon all of the above, and may require submission of additional plans and specifications addressing any areas of concern to the Committee or other information prior to approving or disapproving material submitted.
The Committee may from time to time adopt, promulgate and amend rules or guidelines which, among other matters, may set forth design and architectural standards, procedures for the submission of plans for approval, requirements for a fee to accompany each application for approval, and/or additional factors which it will take into consideration in reviewing submissions. The Committee may provide that the amount of the fee shall be uniform, or that it be determined in any other reasonable manner, such as by the reasonable cost of the construction, alterations or additions contemplated. The Committee may require such detail in plans and specifications submitted for its review as it deems proper, including without limitation, floor plans, site plans, drainage plans, elevation drawings and description or samples of exterior material and colors. Until receipt by the Committee of any required plans and specifications, the Committee may postpone review of any plan submitted for approval. To ensure uniformity throughout the Project, the Association has the right to review and approve proposed design guidelines and all changes to the design guidelines before they are effective.
Decisions of the Committee and the reasons for the decisions shall be transmitted by the Committee to the Applicant in writing at the address set forth in the application for approval, within sixty (60) days after receipt by the Committee of all materials required by the Committee.
No purported oral or verbal approval of the Committee shall be permitted and any approval, to be binding upon the Committee and the Association, shall be in writing. In no event will any application for approval or any proposal, plans or specifications be deemed approved based upon the passage or lapse of time; any approval must be by affirmative written action of the Committee to be effective. Notwithstanding approval of any application, proposal, plans or specifications by the Committee, no Applicant shall undertake any construction or other activity subject to the 272
27 review of the Committee unless, as a separate or independent matter, that Applicant has also met any review or permit requirements of the city or county in which the Project is located prior to making any alterations or Improvements permitted hereunder and has obtained all permits necessary to legally permit such construction or other activity, and has provided proof of contractor’s insurance for all work to the Association.
4.3 Condition of Approval.
As a condition to approval of any requested architectural change, modification, addition, or alteration, an Owner, on behalf of himself or herself and his or her successors-ininterest, shall be deemed to have agreed to assume all responsibilities for maintenance, repair, replacement and insurance of such change, modification, addition, or alteration, unless otherwise agreed to in writing by the Board of Directors. It is the responsibility of every Owner of a Unit to determine for himself or herself what architectural modifications have been made to his or her Unit by any predecessor-in-interest. In the discretion of the Board or the Committee, an Owner may be required to confirm and acknowledge such condition of approval by written instrument in recordable form acknowledged by such Owner on behalf of himself or herself and all successorsin-interest.
4.4 Commencement of Construction.
All architectural changes, modifications and improvements approved by the Committee hereunder must be commenced within one (1) year from the date of approval. If not commenced within one (1) year from the date of such approval, then such approval shall be deemed revoked by the Committee, unless the Committee gives a written extension for commencing the work prior to the expiration of said one (1) year period. All work approved by the Committee hereunder shall be completed in its entirety within ninety (90) days from the date of commencement, unless otherwise agreed in writing by the Committee. All approved architectural changes, modifications and improvements must be completed in their entirety, and an Owner may not construct only a portion or part of an approved architectural change, modification, or improvement.
4.5 Meetings of the Committee.
The Committee shall meet from time to time as necessary to perform its duties hereunder. The Committee may from time to time by resolution unanimously adopted in writing designate a Committee Representative (who may, but need not, be one of its members) to take any action or perform any duties for and on behalf of the Committee, except the granting of variances pursuant to Section 4.10. In the absence of such designation, the vote of a majority of the Committee confirmed by contemporaneous written record executed by one or more members of the Committee or the written consent of a majority of the Committee taken without a meeting, shall constitute an act of the Committee.
4.6 No Waiver of Future Approvals.
The approval of the Committee of any proposals or plans and specifications or drawings for any work done or proposed in connection with any matter requiring the approval and consent of the Committee, shall not be deemed to constitute a waiver of any right to withhold 273
28 approval or consent to any similar proposals, plans and specifications, drawings or matter subsequently or additionally submitted for approval or consent. Each Owner acknowledges that the members of the Board of Directors and the Committee will change from time to time and that interpretation, application, and enforcement of the architectural standards may vary accordingly.
4.7 Compensation of Members.
The members of the Committee shall receive no compensation for services rendered, other than reimbursement for expenses incurred by them in the performance of their duties hereunder.
4.8 Correction of Defects.
Inspection of work and correction of defects therein shall proceed as follows:
(a) The Committee or its duly authorized representative may at any time inspect any Improvement for which approval of plans is required under this Article IV.
However, the Committee’s right of inspection of Improvements for which plans have been submitted and approved shall terminate one hundred twenty (120) days after the work of Improvement has been completed and the respective Owner has given written notice of its completion to the Committee. The notice of completion may be delivered personally or by registered or certified mail to the principal office of the Association, or such other address as may be established from time to time by the Board. The Committee’s rights of inspection shall not terminate pursuant to this paragraph if plans for the work of Improvement have not previously been submitted to and approved by the Committee or if the notice of completion is not properly given. If, as a result of such inspection, the Committee finds that the Improvement was done without obtaining approval of the plans therefor or was not done in substantial compliance with the plans approved by the Committee, it shall notify the Owner in writing of failure to comply with this Article IV, specifying the particulars of noncompliance. The Committee shall have the authority to require the Owner to take such action as may be necessary to remedy the noncompliance.
(b) If upon the expiration of sixty (60) days from the date of such notification, the Owner has failed to remedy the noncompliance, the Committee shall notify the Board in writing of such failure. Upon Notice and Hearing, as provided in the Bylaws, the Board shall determine whether there is a noncompliance and, if so, the nature thereof and the estimated cost of correcting or removing the same. If a noncompliance exists, the Owner shall remedy or remove the same within a period of not more than forty-five (45) days from the date that notice of the Board ruling is given to the Owner. If the Owner does not comply with the Board ruling within that period, the Board, at its option, may Record a Notice of Noncompliance and may peacefully remedy the noncompliance, and the Owner shall reimburse the Association, upon demand, for all expenses (including reasonable attorneys’ fees) incurred in connection therewith.
If such expenses are not promptly repaid by the Owner to the Association, the Board shall levy a Special Assessment against the Owner for reimbursement as provided in this Declaration. The right of the Association to remove a noncomplying Improvement or otherwise remedy the noncompliance shall be in addition to all other rights and remedies which the Association may have at law, in equity or in this Declaration.
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29 (c) If for any reason the Committee fails to notify the Owner of any noncompliance with previously submitted and approved plans within one hundred fifty (150) days after receipt of written notice of completion from the Owner delivered in the manner required above, the Improvement shall be deemed to be in accordance with the approved plans.
4.9 Scope of Review.
The Architectural Committee shall review and approve or disapprove all plans submitted to it for any proposed Improvement, alteration or addition, on the basis of potential impact on the Condominium Building (including structural, acoustic and utility impacts), aesthetic considerations, consistency with this Declaration, and the overall benefit or detriment which would result to the immediate vicinity and the Property generally. The Committee shall take into consideration the structural and aesthetic aspects of the architectural design, placement of Improvements, landscaping, color schemes, exterior finishes and materials and similar features.
The Committee’s approval or disapproval shall be based solely on the considerations set forth in this Article IV, and the Committee shall not be responsible for reviewing, nor shall its approval of any plan or design be deemed approval of, any plan or design from the standpoint of structural safety or conformance with building or other codes. The Architectural Committee may consider the impact of views from other Residences or Condominiums, Association Property, or public vantages and reasonable privacy interests as factors in reviewing, approving or disapproving any proposed construction or other Improvements. However, there is no guaranty of any protected views within the Property and no Residence or Condominium is guaranteed the existence or unobstructed continuation of any particular view. Each Owner acknowledges that the Board of Directors and the Committee may adopt different architectural standards for different parts of the Project, based upon street visibility and location of the proposed modification in the Condominium Building. Neither the Declarant, the Association, the Board of Directors, the Committee, the Committee Representative, nor any member of any of the foregoing shall be held liable for any injury, damages, or loss arising out of the manner, quality or effect of approved construction on or modification to any Unit authorized pursuant to this Article IV. In the event legal action is brought against any such party as a result of such construction or modification, the Owner causing such construction or modification shall indemnify and hold harmless the Declarant, the Association, the Board of Directors, the Committee, the Committee Representative, and all members of any of the foregoing from all costs, expenses and damages (including but not limited to attorneys’ fees) incurred in connection with such action, including, without limitation, any defense thereof.
4.10 Variances.
The Committee may authorize variances from compliance with any of the architectural provisions of this Declaration, including restrictions upon height, size, floor area or placement of structures, or similar restrictions, when circumstances such as topography, natural obstructions, hardship, aesthetic or environmental considerations may require. Such variances must be evidenced in writing, must be signed by at least a majority of the members of the Committee, and shall become effective upon Recordation. After Declarant has lost the right to appoint a majority of the members of the Committee, the Board must approve any variance recommended by the Committee before any such variance shall become effective. If such variances are granted, no violation of the covenants, conditions and restrictions contained in this Declaration shall be deemed to have occurred with respect to the matter for which the variance 275
30 was granted. The granting of such a variance shall not operate to waive any of the terms and provisions of this Declaration for any purpose except as to the particular property and particular provision hereof covered by the variance, nor shall it affect in any way the Owner’s obligation to comply with all governmental laws and regulations affecting the use of his or her Unit.
4.11 Appeals.
If the Committee disapproves an application, the Applicant may appeal such decision to the Board of Directors. The Board shall adopt policies and procedures for the appeal of Committee decisions for reconsideration by the Board, which appeal shall be heard at a Board meeting which is open to the Members of the Association.
ARTICLE V
5. Association Maintenance Funds and Assessments.
5.1 Personal Obligation of Assessments.
Declarant, for each Condominium owned by it, hereby covenants and agrees to pay, and each Owner, by acceptance of a deed of a Condominium, whether or not it shall be so expressed in any such deed, is deemed to covenant and agree to pay to the Association all Annual Assessments for Common Expenses and all applicable Special Assessments, Reconstruction Assessments and Capital Improvement Assessments. The Association shall not levy or collect any Annual Assessment, Capital Improvement Assessment, Special Assessment or Reconstruction Assessment that exceeds the amount necessary for the purpose for which it is levied. Except as provided in this Section 5.1, all such assessments, together with interest, costs, and reasonable attorneys’ fees, shall be a separate, distinct and personal obligation of the Person who was the Owner of the Condominium at the time when the assessment fell due. This personal obligation cannot be avoided by abandonment of the Condominium or by an offer to waive use of the Common Property. The personal obligation for delinquent assessments shall not pass to any new Owner (“Purchaser”) unless expressly assumed by the Purchaser.
5.2 Maintenance Funds of Association.
The Board of Directors shall establish no fewer than two (2) separate accounts (the “Maintenance Funds”), into which shall be deposited all monies paid to the Association, and from which disbursements shall be made, as provided herein, in the performance of functions by the Association under this Declaration. The Maintenance Funds may be established as trust accounts at a banking or savings institution. The Maintenance Funds shall include: (1) an operating fund for current Common Expenses of the Association (“Operating Fund”), (2) a reserve fund for capital Improvements, replacements, painting and repairs of the Common Property (which cannot normally be expected to occur on an annual or more frequent basis) (“Reserve Fund”), and (3) any other funds which the Board of Directors may establish to the extent necessary under the provisions of this Declaration. Nothing contained herein shall limit, preclude or impair the establishment of additional Maintenance Funds by the Association, so long as the amounts assessed to, deposited into, and disbursed from any such Fund are earmarked for specified purposes authorized by this Declaration.
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31 5.3 Purpose of Assessments.
The assessments levied by the Board of Directors on behalf of the Association shall be used exclusively to promote the recreation, health, safety and welfare of the residents of the Condominiums, for the operation, replacement, improvement and maintenance of the Property, and to discharge any other obligations of the Association under this Declaration. All amounts deposited into the Maintenance Funds must be used solely for the common benefit of all of the Owners for purposes authorized by this Declaration. Disbursements from the Operating Fund shall be made by the Board of Directors for such purposes as may be necessary for the discharge of its responsibilities herein for the common benefit of all of the Owners, other than those purposes for which disbursements from the Reserve Fund are to be used.
Disbursements from the Reserve Fund shall not be made by the Board of Directors for any purpose other than the repair, restoration, replacement or maintenance of, or litigation involving the repair, restoration, replacement or maintenance of, major components which the Association is obligated to repair, restore, replace, or maintain and for which the Reserve Fund was established. However, the Board may authorize the temporary transfer of money from the Reserve Fund to the Association’s Operating Fund to meet short-term cash-flow requirements or other expenses, provided, that the Board has made a written finding, recorded in the Board’s minutes, explaining the reasons that the transfer is needed, and describing when and how the money will be repaid to the Reserve Fund. The transferred funds shall be restored to the Reserve Fund within one (1) year of the date of the initial transfer, except that the Board may, upon making a finding supported by documentation that a temporary delay would be in the best interests of the Association, temporarily delay the restoration until the time which the Board reasonably determines to be necessary. The Board shall exercise prudent fiscal management in maintaining the integrity of the Reserve Fund, and shall, if necessary, levy a Capital Improvement Assessment or a Reconstruction Assessment, as applicable, to recover the full amount of the expended funds within the time limits required by this Section. Such assessment shall be subject to the limitation imposed by California Civil Code § 5650(b) (or any successor or replacement statute). The Board may, at its discretion, extend the date that payment of the Capital Improvement Assessment or Reconstruction Assessment is due.
Nothing in this Declaration shall be construed in such a way as to permit the use of Association assessments or funds to abate any annoyance or nuisance emanating from outside the boundaries of the Property. Annual Assessments shall be used to satisfy Common Expenses of the Association, as provided herein and in the Bylaws. When the decision is made to use the Reserve Fund or to temporarily transfer money from the Reserve Fund to pay for litigation, the Board shall notify Members of that decision in the next available mailing to all Members pursuant to § 5016 of the California Corporations Code (or any successor or replacement statute), and of the availability of an accounting of those expenses. The Association shall make an accounting of expenses related to the litigation on at least a quarterly basis. The accounting shall be made available for inspection by the Members at the Association’s office.
5.4 Allocation of Assessments.
The Annual Assessments levied by the Board shall be allocated equally among the Owners in the Project.
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32 5.5 Limitations on Annual and Special Assessment Increases.
The Board shall levy Annual Assessments in accordance with the following provisions:
(a) Maximum Authorized Annual Assessment for Initial Year of Operations. Until the first day of the Fiscal Year immediately following the Fiscal Year in which Annual Assessments commence, the Board shall not levy an Annual Assessment per Condominium in an amount greater than one hundred twenty percent (120%) of the amount of Annual Assessments disclosed in the most current Budget filed with and reviewed by DRE at the time Annual Assessments commence without the vote of Members casting a majority of votes at a meeting or election of the Association at which a quorum of the Association is represented; provided, that, for purposes of this Section 5.5(a), a quorum shall mean more than fifty percent (50%) of the Members of the Association. Notwithstanding the foregoing, this Section does not limit Annual Assessment increases necessary for addressing an “Emergency Situation” as defined in Section 5.5(e).
(b) Maximum Authorized Annual Assessment for Subsequent Fiscal Years. Starting with the first Fiscal Year immediately following the Fiscal Year in which Annual Assessments commence and for each Fiscal Year thereafter, the Board shall not levy Annual Assessments in any Fiscal Year in excess of one hundred twenty percent (120%) of the Annual Assessments levied during the immediately preceding Fiscal Year without the vote of Members casting a majority of votes at a meeting or election of the Association at which a quorum of the Association is represented; provided that, for purposes of this Section 5.5(b), a quorum shall mean more than fifty percent (50%) of the Members of the Association. In addition, the Board shall provide notice by first-class mail to all Members of any increase in Annual Assessments from the Annual Assessments levied during the immediately preceding Fiscal Year not less than thirty (30) nor more than sixty (60) days prior to the date on which such increased assessment shall become due. Notwithstanding the foregoing, this Section does not limit Annual Assessment increases necessary for addressing an “Emergency Situation” as defined in Section
5.5(e).
(c) Supplemental Annual Assessments. If the Board, by majority vote, determines that the important and essential functions of the Association may be properly funded by an Annual Assessment in an amount less than the maximum authorized Annual Assessment described above, it may levy such lesser Annual Assessment. If the Board determines that the estimate of total Annual Assessment charges for the current year is or will become inadequate to meet all projected expenses for the Property for any reason, it shall immediately determine the approximate amount of the inadequacy. Subject to the limitations described in Sections 5.5(a) and 5.5(b) above, the Board shall have the authority to levy, at any time during the Fiscal Year by a majority vote, a supplemental Annual Assessment reflecting a revision of the total Annual Assessment charges to be assessed against each Condominium for the balance of that Fiscal Year.
(d) Special Assessment. The Board shall not levy Special Assessments to defray the cost of any action or undertaking on behalf of the Association that in the aggregate exceeds five percent (5%) of the budgeted gross expenses of the Association for 278
33 that Fiscal Year without the vote of Members casting a majority of votes at a meeting or election of the Association at which a quorum of the Association is represented; provided that, for purposes of this Section 5.5(d), a quorum shall mean more than fifty percent (50%) of the Members of the Association. In addition, the Board shall provide notice by first-class mail to all Members of any Special Assessment levied during the Fiscal Year not less than thirty (30) nor more than sixty (60) days prior to the date on which such Special Assessment shall become due.
Notwithstanding the foregoing, this Section 5.5(d) does not limit assessment increases necessary for addressing an “Emergency Situation” as defined in Section 5.5(e). (e) Emergency Situations. For purposes of Sections 5.5(a), 5.5(b),
5.5(d) and 5.7, an “Emergency Situation” is any one of the following:
(1) An extraordinary expense required by an order of a court; (2) An extraordinary expense necessary to repair or maintain the Property or any portion thereof for which the Association is responsible where a threat to personal safety on the Property is discovered;
(3) An extraordinary expense necessary to repair or maintain the Property or any portion thereof for which the Association is responsible that could not have been reasonably foreseen by the Board when preparing the Budget. Prior to the imposition or collection of an assessment pursuant to this subparagraph (iii), the Board shall pass a resolution containing written findings as to the necessity of the extraordinary expense involved and why the expense was not or could not have been reasonably foreseen in the budgeting process. The resolution shall be distributed to the Members with the Notice of Assessment; or (4) An extraordinary expense in making the first payment of the earthquake insurance surcharge pursuant to § 5003 of the California Insurance Code, if such an expense is applicable.
5.6 Annual Assessments/Commencement-Collection.
The Board of Directors shall authorize and levy the amount of the Annual Assessment upon each Condominium, as provided herein, by majority vote of the Board. The initial Annual Assessment shall begin on all Condominiums in a Phase of Development (including unsold Condominiums therein owned by Declarant) on the first day of the first calendar month following the first Close of Escrow for the sale of a Condominium in such Phase, or an earlier date as may be selected by Declarant for commencement of Annual Assessments in such Phase. Unless provided to the contrary in the Budget, all Annual Assessments shall be assessed against the Members and their Condominiums as set forth in Sections 5.4 and 5.5 above. With the written approval of the Declarant or the Architectural Committee, the Owner of contiguous Units may be permitted to combine one or more Units into a single living space by elimination of the demising walls otherwise separating those Units, provided, that such physical combination of any Units shall not alter the legal identity of the Units under this Declaration or alter in any way the amount of the assessments applicable to those Units under this Declaration which shall continue to be allocated in full to each of the original Units notwithstanding the physical combination thereof. Annual Assessments for fractions of any month involved shall be prorated. Subject to the terms of any 279
34 maintenance agreement entered into between Declarant and the Association, Declarant shall pay its full pro rata share of the Annual Assessments on all unsold Condominiums for which Annual Assessments have commenced. The Board shall fix the amount of the Annual Assessment against each Condominium at least thirty (30) days in advance of each Annual Assessment period. From time to time the Board may determine that all excess funds in the Operating Fund be retained by the Association and used to reduce the following year’s Annual Assessments. Upon dissolution of the Association incident to the abandonment or termination of the Project, any amounts remaining in any of the Maintenance Funds shall be distributed to or for the benefit of the Members in the same proportions as such monies were collected from the Members.
Concurrently with the first Close of Escrow for the sale of a Condominium in any Phase, Declarant shall pay to the Association an appropriate amount (as reviewed by DRE) for reserves for replacement or deferred maintenance of the Common Property in such Phase necessitated by or arising out of the use and occupancy of the Condominiums in such Phase under a rental program conducted by Declarant if such rental program was in effect for at least one (1) year prior to such first Close of Escrow.
Declarant and any other Owner of a Unit which has not been constructed shall be exempt from payment of that portion of the Annual Assessment which is for the purpose of defraying expenses and reserves directly attributable to the existence and use of the Unit. Any such exemption from the payment of Annual Assessments shall be in effect only until the earlier to occur of (1) the Recordation of a notice of completion of the Condominium Building, (2) the occupation or use of the Unit, or (3) completion of all elements of the Condominium Improvements that the Association is obligated to maintain.
Notwithstanding any other provisions of this Declaration, until the earlier to occur of (1) the Recordation of a notice of completion of an Improvement on the Common Property, or (2) the placement of such Improvement into use, each Owner (including Declarant) shall be exempt from paying that portion of any Annual Assessment which is for the purpose of defraying expenses and reserves directly attributable to the existence and use of such Improvement.
Each Member shall pay to the Association his or her Annual Assessment in installments at such frequency and in such amounts as established by the Board. Each installment of the Annual Assessment may be paid by the Member to the Association in one check or in separate checks as payments attributable to the deposits under the Operating Fund and the Reserve Fund. If any installment of an Annual Assessment payment is less than the amount assessed and the payment does not specify the Maintenance Fund or Funds into which it should be deposited, the receipt by the Association from that Owner shall be credited in order of priority first to the Operating Fund, until that portion of the Annual Assessment has been satisfied, and second to the Reserve Fund.
Notwithstanding any other provisions of this Declaration or the Bylaws regarding the term and termination of contracts with Declarant for providing services to the Association, Declarant may enter into a written maintenance agreement with the Association under which Declarant shall pay all or any portion of the operating Common Expenses and perform all or any portion of the Association’s maintenance responsibilities in exchange for a temporary suspension of Annual Assessments. Such maintenance agreement shall extend for a term and shall be on such 280
35 conditions as are reviewed by the DRE, and may require Owners to reimburse Declarant, through the Association, for a portion of the costs expended in satisfaction of Common Expenses.
5.7 Capital Improvement Assessments.
Should the Board of Directors determine the need for a capital Improvement or other such addition to the Property, the cost of which in the aggregate exceeds five percent (5%) of the Budgeted gross expenses of the Association for the then current Fiscal Year, then the vote or written consent of Members casting a majority of votes at a meeting or election of the Association at which a quorum of the Association is represented shall be required to approve and render effective a Capital Improvement Assessment levied by the Board of Directors to cover the cost of such expenditure; provided that, for purposes of this Section 5.7, a quorum shall mean more than fifty percent (50%) of the Members of the Association. Capital Improvement Assessments may be levied by the Board without the consent of the Members, if the aggregate of such expenditures in each Fiscal Year does not exceed five percent (5%) of the Budgeted gross expenses of the Association for such Fiscal Year; provided, that the Board shall provide notice to each Owner by first-class mail of the levying of such Capital Improvement Assessment not less than thirty (30) nor more than sixty (60) days prior to the date on which such assessment shall become due. Notwithstanding the foregoing, the Board may levy in any Fiscal Year, a Capital Improvement Assessment applicable to that Fiscal Year which exceeds five percent (5%) of the Budgeted gross expenses of the Association for such Fiscal Year if such increase is necessary to address an “Emergency Situation” as defined in Section 5.5(e).
5.8 Delinquency.
Any installment of an assessment provided for in this Declaration shall become delinquent if not paid within fifteen (15) days of the due date as established by the Board of Directors of the Association. With respect to any such delinquent assessment, the Board is hereby authorized to and, at its election, may require the Owner responsible for such delinquent assessment to pay both of the following: (a) reasonable costs incurred in collecting the delinquent assessment, including reasonable attorneys’ fees and costs; and (b) a late charge in the maximum amount permitted by California Civil Code § 5650(b)(2) (or any successor or replacement statute).
In addition to the foregoing, commencing thirty (30) days after the assessment becomes due and continuing until paid, the Board is hereby authorized to and, at its election, may require the Owner responsible for the delinquent assessment to pay interest on all sums identified above (including the delinquent assessment, reasonable costs of collection, attorneys’ fees and late charges) at the maximum rate permitted by California Civil Code § 5650(b)(3) (or any successor or replacement statute). The Association need not accept any tender of a partial payment of an installment of an assessment and all costs and attorneys’ fees attributable thereto, and any acceptance of any such tender shall not be deemed to be a waiver of the Association’s right to demand and receive full payment thereafter of all such amounts owed. Collection of delinquent assessments must be conducted in accordance with the provisions of California Civil Code §§ 5660, 5705, 5715 and 5720 (or any successor or replacement statutes).
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36 5.9 Creation and Release of Lien.
All sums (other than Special Assessments imposed against a particular Owner as a penalty or disciplinary measure for such Owner’s failure to comply with the Restrictions) assessed in accordance with the provisions of this Declaration shall constitute a lien on the respective Condominium prior and superior to (a) any declaration of homestead Recorded after the Recordation of this Declaration, and (b) all other liens, except (1) all taxes, bonds, assessments and other levies which, by law, would be superior thereto, and (2) the lien or charge of any first Mortgage of record (meaning any Recorded Mortgage or Deed of Trust with first priority or seniority over all other Mortgages or Deeds of Trust) made in good faith and for value and Recorded prior to the date on which the “Notice of Lien” (described in this Section) against the respective Condominium was Recorded. Prior to the Recordation of a Notice of Lien against a Unit, the Association must comply with the requirements of California Civil Code § 5660 (or any successor or replacement statute), including, without limitation, the following requirements:
At least thirty (30) days prior to recording a Notice of Lien, the Association shall notify the Owner of such Unit in writing by certified mail of the following: (i) a general description of the collection and lien enforcement procedures of the Association and the method of calculation of the amount, (ii) a statement that the Owner has the right to inspect the Association records, pursuant to § 5205 of the California Civil Code, and the following statement in 14-point boldface type, if printed, or in capital letters, if typed:
“IMPORTANT NOTICE: IF YOUR SEPARATE INTEREST IS
PLACED IN FORECLOSURE BECAUSE YOU ARE BEHIND IN
YOUR ASSESSMENTS, IT MAY BE SOLD WITHOUT COURT
ACTION;” (iii) an itemized statement of the charges owed by such Owner, including items which indicate the principal owed, the fees and reasonable cost of collection, any late charges, any interests, and any reasonable attorneys’ fees, (iv) a statement that the Owner shall not be liable to pay the charges, interest, and costs of collection, if it is determined the assessment was paid on time to the Association; (v) notify the Owner of the right to request a meeting with the Board as provided by California Civil Code § 5665; (vi) notify the Owner of the Owner’s right to dispute such charges by written request for a dispute resolution pursuant to a meet and confer program as set forth in California Civil Code §§ 5900 - 5920; (vii) notify the Owner of the Owner’s right to request for alternative dispute resolution with a neutral third party pursuant to California Civil Code §§ 5925 - 5965 before the Association may initiate any foreclosure proceeding against the Owner’s Unit, except that binding arbitration shall not be available if the Association intends to initiate a judicial foreclosure.
A defaulting Owner may submit a written request to meet with the Board to discuss a payment plan for the debt noticed and the Board shall meet with the Owner in executive session in accordance with the requirements of California Civil Code § 5665 (or any successor or 282
37 replacement statute). Any payment toward the charges itemized shall be first applied to the principal owed, and only after the principal owed is paid in full shall such payments be applied to interest, late charges or collection expenses. The decision to record a Notice of Lien shall be made by the Board in an open meeting and shall not be delegated to any agent of the Association. The Board shall approve the decision by a majority vote of the board members in an open meeting and record the vote in the minutes of that meeting. The lien shall become effective upon Recordation by the Board or its authorized agent of a notice of delinquent assessment (“Notice of Lien”) concerning delinquent payment of any Annual, Capital Improvement or Reconstruction Assessment or installment thereof, levied by the Association against any Condominium Owner, as provided in § 5675 of the California Civil Code (or any successor or replacement statute). The Notice of Lien shall state (i) the amount of the assessment or installment, as the case may be, and other authorized charges and interest, including the cost of preparing and Recording the Notice of Lien, (ii) the expenses of collection in connection with any delinquent installments, including without limitation reasonable attorneys’ fees, (iii) a legal description of the Condominium against which the same has been assessed, (iv) the name and address of the Owner against which the lien is imposed, and (v) if applicable, in order for the lien to be enforced by nonjudicial foreclosure, the name and address of the trustee authorized by the Association to enforce the lien by nonjudicial foreclosure sale. The Notice of Lien shall be signed by the President, Vice President or Secretary of the Association and shall be mailed no later than ten (10) calendar days after Recordation, in the manner set forth in § 2924b of the California Civil Code (or any successor or replacement statute), to all record Owners of the Condominium against which the Notice of Lien was recorded.
The lien shall relate only to the individual Condominium against which the assessment was levied and not to the Property as a whole. Within twenty-one (21) days of the payment to the Association of the full amount claimed in the Notice of Lien, or other satisfaction thereof, the Board of Directors shall cause to be Recorded a notice of satisfaction and release of lien (“Notice of Release”) stating the satisfaction and release of the amount claimed. The Board of Directors may demand and receive from the applicable Owner a reasonable charge for the preparation and Recordation of the Notice of Release before Recording it. Any purchaser or encumbrancer who has acted in good faith and extended value may rely upon the Notice of Release as conclusive evidence of the full satisfaction of the sums stated in the Notice of Lien.
5.10 Enforcement of Liens.
Prior to enforcement of any lien, the Association shall offer the Owner and, if so requested by such Owner, shall participate in dispute resolution pursuant to a “meet and confer” program as set forth in California Civil Code §§ 5900-5920 (or any successor or replacement statutes) or alternative dispute resolution with a neutral third party pursuant to California Civil Code §§ 5925 – 5965 (or any successor or replacement statutes). The decision to pursue dispute resolution or a particular type of alternative dispute resolution shall be the choice of the Owner, except that binding arbitration shall not be available if the Association intends to initiate a judicial foreclosure. After the expiration of thirty (30) days following Recordation of the Notice of Lien, the Board of Directors may enforce any assessment lien provided for in Section 5.9, hereinabove, which is in excess of One Thousand Eight Hundred Dollars ($1,800.00) (not including any accelerated assessments, late charges, fees and costs of collection, attorney’s fees, or interest), or more than twelve (12) months delinquent, (i) by filing an action for judicial foreclosure or (ii) by instituting a nonjudicial foreclosure by the trustee named in the Notice of Lien or by a trustee substituted pursuant to California Civil Code § 2934a (or any successor or replacement statute), 283
38 by recording a notice of default in the form described in California Civil Code § 2924c(b)(1) (or any successor or replacement statute) to commence a nonjudicial foreclosure sale. A nonjudicial foreclosure sale shall be conducted in accordance with requirements of California Civil Code §§ 2924, 2924b, 2924c, 2924f, 2924g and 2924h (or any successor or replacement statutes) applicable to the exercise of powers of sale in mortgages and deeds of trust, or in any manner permitted by law. The decision to initiate foreclosure of a lien for delinquent assessments that has been validly Recorded shall be made only by the Board and may not be delegated to an agent of the Association. The Board shall approve the decision by a majority vote of the Board members in an executive session. The Board shall record the vote in the minutes of the next meeting of the Board open to all Members. The Board shall maintain the confidentiality of the defaulting Owner(s) by identifying the matter in the minutes by the Unit number, rather than the name of the Owner(s). A Board vote to approve foreclosure of a lien shall take place at least thirty (30) days prior to any public sale. If the Board votes to foreclose upon the Unit, the Board shall provide notice by personal service in accordance with the manner of service of summons in accordance with California Code of Civil Procedure § 415.10 (or any successor or replacement statute) to the defaulting Owner who occupies the Unit or to such Owner’s legal representative. The Board shall provide written notice to a defaulting Owner who does not occupy the Unit by first-class mail, postage prepaid, at the most current address shown on the books of the Association. The Association, through its agents, shall have the power to bid on the Condominium at foreclosure sale, and to acquire and hold, lease, mortgage and convey the same. Upon completion of the foreclosure sale, an action may be brought by the Association or the purchaser at the sale in order to secure occupancy of the defaulting Owner’s Unit, and the defaulting Owner shall be required to pay the reasonable rental value for such Unit during any period of continued occupancy by the defaulting Owner or any persons claiming under the defaulting Owner. Suit to recover a money judgment for unpaid assessments shall be maintainable without foreclosing or waiving any lien securing the same, but this provision or any institution of suit to recover a money judgment shall not constitute an affirmation of the adequacy of money damages. Any recovery resulting from a suit at law or in equity initiated pursuant to this Section shall include reasonable attorneys’ fees as fixed by the court. Notwithstanding any provision in the law or in this Declaration to the contrary, a nonjudicial foreclosure by the Association to collect upon a debt for delinquent assessments shall be subject to the right of redemption, as provided in California Civil Code § 5715(b) (or any successor or replacement statute), which right shall run for a period of ninety (90) days after the sale.
5.11 Priority of Assessment Lien.
The lien of the Assessments, including interest and costs of collection (including attorneys’ fees), provided for herein shall be subordinate to the lien of any first Mortgage of record (meaning any Recorded Mortgage or Deed of Trust) upon any Condominium made in good faith and for value and Recorded prior to the date on which the lien became effective. Sale or transfer of any Condominium shall not affect the assessment lien. However, the sale or transfer of any Condominium pursuant to judicial or nonjudicial foreclosure of a first Mortgage with priority over the Assessment lien shall extinguish the lien of such assessments as to payments which became due prior to such sale or transfer. No sale or transfer shall relieve such Condominium from liens for any Assessments thereafter becoming due. When the Mortgagee of a first Mortgage of record with priority over the Assessment lien or other purchaser of a Condominium obtains title pursuant to a judicial or nonjudicial foreclosure of that first Mortgage, such acquirer of title, his or her 284
39 successors and assigns, shall not be liable for the share of the Common Expenses or assessments by the Association chargeable to such Condominium which became due prior to the acquisition of title to such Condominium by such acquirer; provided, however, that all such unpaid share of Common Expenses or assessments shall be deemed to be Common Expenses thereafter collectible from all of the Owners of Condominiums in the Project, including such acquirer of title, and his or her successors and assigns.
ARTICLE VI
6. Project Easements and Rights of Entry.
6.1 Easements.
(a) Access; Parking. Declarant expressly reserves for the benefit of and grants to the Association and the Owners reciprocal, nonexclusive easements for access, ingress and egress over all of the Common Property, which easements may be conveyed by Declarant to the Owners and to the Association for so long as Declarant owns any interest in the Project. Subject to the provisions of the Restrictions governing use and enjoyment thereof, including, without limitation, the provisions for restriction of Owner access to the Common Property upon the terms and for the reasons set forth in Section 3.4 above, the Owner easements may be used by all Owners and their Family, guests, tenants and invitees residing on or temporarily visiting the Property, for walkways, vehicular access and such other purposes reasonably necessary for use and enjoyment of a Condominium in the Project. (b) Maintenance and Repair. Declarant expressly reserves for the benefit of and conveys to the Board of Directors and all agents, officers and employees of the Association, nonexclusive easements over the Property as necessary to maintain and repair the Common Property, and to perform all other tasks in accordance with the provisions of this Declaration. Such easements over the Property shall be appurtenant to, binding upon, and shall pass with the title to, every Condominium conveyed.
(c) Utilities. Easements over the Project for the installation and maintenance of electric, telephone and Telecommunication Facilities, water, gas, drainage and sanitary sewer connections and facilities, as may be hereafter required or determined necessary by the Declarant or the Board to service the Project, are hereby reserved by Declarant, together with the right to grant and transfer the same. Declarant expressly reserves for the benefit of the Association the right of Declarant and the Association to grant additional easements and rightsof-way over the Property to utility companies, Telecommunication Services companies and public agencies, as necessary, for the proper development, disposal and operation of the Property. Such right of Declarant shall expire (i) with respect to any Phase of Development, upon Close of Escrow for the sale of all Condominiums in such Phase by Declarant, or (ii) with respect to all Phases, upon expiration of seven (7) years from the date of original issuance by DRE of the Final Subdivision Public Report for Phase 1. Declarant hereby reserves and grants the following easements and said easements shall be governed as set forth below:
(1) Each respective utility company shall maintain all utility facilities and connections on the Project owned by such utility company; provided, however, that 285
40 if any company shall fail to do so, it shall be the obligation of each Owner to maintain those facilities and connections located upon or within such Owner’s Unit and it shall be the obligation of the Association to maintain those facilities and connections located upon the Common Property.
Notwithstanding the foregoing, internal and external telephone wiring designed to serve a single Unit, but is located outside the boundaries of the Unit, shall be maintained by the Owner of said Unit;
(2) Wherever sanitary sewer, water or gas connections, cable television lines, electric lines, telephone or Telecommunication Facilities are installed within the Project and it becomes necessary to gain access to said connections, cables and/or lines through a Unit owned by someone other than the Owner of the Unit served by said connections, cables and/or lines, the Owner of the Unit served by said connections, cables and/or lines shall have the right, and is hereby granted an easement to the full extent necessary therefor, to enter upon such other Unit or to have the utility companies enter upon such other Unit to repair, replace and generally maintain said connections, cables and/or lines;
(3) Whenever sanitary sewer, water or gas connections, cable television lines, electric lines, telephone or Telecommunication Facilities are installed within the Project, and said connections, cables and/or lines serve more than one (1) Unit, the Owner of each Unit served by said connections, cables and/or lines shall be entitled to the full use and enjoyment of such portions of same as service his or her Unit; and (4) In the event of a dispute between Owners with respect to the repair or rebuilding of the aforesaid connections, cables and/or lines, or the sharing of the cost thereof, upon written request of one (1) of such Owners addressed to the Association, the matter shall be submitted to the Board who shall decide the dispute, and the decision of the Board shall be final and conclusive on the Owners.
(d) Support and Encroachments. Declarant, the Association and Owners of contiguous Units shall have a reciprocal easement appurtenant to each of the Units over the adjacent Units and the Common Property for the purpose of (1) lateral and sub-adjacent support, (2) accommodating any existing encroachment of any wall or any Improvement (including, without limitation, utility equipment, pipes, plumbing, mechanical, and other structural appurtenances) resulting from the original construction of the Improvements by Declarant, and (3) maintaining such encroachments and accommodating authorized construction, reconstruction, repair, shifting, movement or natural settling of the Improvements or any other portion of the Project. Easements and reciprocal negative easements for utility services and repairs, replacement and maintenance of the same over all of the Common Property are specifically reserved for the benefit of the Owners. Declarant expressly reserves for the benefit of the Common Property, and for the benefit of the Owners and the Association, reciprocal nonexclusive easements for drainage of water resulting from the normal use of adjoining Units or Common Property, over, across and upon each of the Units and the Common Property. The foregoing easements shall not unreasonably interfere with each Owner’s use and enjoyment of his or her Unit. No portion of the Common Property, including, without limitation, parking areas and other amenities contemplated as a part of the Property, are proposed to be leased by Declarant to the Owners or to the Association. 286
41 (e) Declarant’s Rights. Declarant expressly reserves for its benefit the right and easement for access, ingress and egress on and over the Project to complete any Improvement which Declarant deems necessary or desirable to implementation of the Declarant’s development plan for the Project and to install and maintain such structures, displays, advertising signs, billboards, flags, sales offices, model homes, interior design and decorator centers, and parking areas for employees, agents, and prospective buyers as may be reasonably necessary or convenient for the proper development and disposition of the Condominiums located within the Project by sale, resale, lease or otherwise, including, without limitation, operation of a sales office. Declarant further reserves for its benefit the right and easement for access over the Property for construction equipment, access over and through the Project for purposes of equipment, material and construction staging, and access over and through the Project by all contractors, subcontractors, employees and other personnel used in connection with the planning, design, excavation, construction and other improvement work necessary to development of the Project. Declarant further expressly reserves for its benefit the right to hereafter create and convey such easements, covenants, conditions, restrictions, and licenses against, over, on, above or below the Project and the Property as necessary or helpful to facilitate the design, engineering, processing, approval, financing, development, construction and maintenance of the Project and the Property, including, without limitation, easements, covenants, conditions, restrictions, and licenses reasonably necessary to meet set-back, open space, access, fire safety, or other zoning or planning requirements or policies. This Declaration cannot be amended to modify or eliminate the easements reserved to Declarant by this or any other Section without prior written consent of Declarant, and any attempt to do so shall have no effect.
(f) Exclusive Use Areas. Declarant expressly reserves for the benefit of and grants to certain Owners of Units in this Project exclusive easements over the Common Area for internal and external telephone wiring designed to serve a single Unit but located outside the boundaries of that Unit, in accordance with California Civil Code § 4145 (or any successor or replacement statute), or pursuant to the rights reserved to the Declarant in Article VII below. (g) Easements for Air Conditioning/Heating Units. As to any air conditioning and/or heating equipment which is located on a portion of the Common Property, there is hereby created, established and granted an exclusive easement on, over and across said portion of the Common Property for the permanent placement of such equipment. Additionally, each Owner is granted an easement for ingress, egress and access on and over the Common Property to install, maintain, repair and replace his or her respective air conditioning and/or heating equipment.
(h) Easements for Solar Equipment. As to each solar electric system which exclusively serves a Unit and is installed on the roof of the Condominium Building and/or within other portions of the Common Property, there is hereby created, established and granted an exclusive easement on, over and across said portions of the Common Property for the permanent placement of the solar electric panels and related equipment. Additionally, each Owner is granted an easement for ingress, egress and access on and over the Common Property to maintain, repair and replace his or her respective solar system equipment; provided however, the Association shall have the right to temporarily remove and store an Owner’s solar panels and related improvements located on the roof of the Condominium Building in order to accommodate 287
42 any maintenance, repair or replacement of Improvements located on the roof. The Association shall promptly re-install the solar panels and related improvement after completion of its maintenance, repair and/or replacement work on the roof of the Condominium Building. Each Owner, by accepting a deed to a Condominium, hereby acknowledges that such activities of the Association will impair the use of such Owner’s solar electric system, which would result in a higher monthly electrical cost and may be an inconvenience or nuisance to the Owner, and hereby consents to such adverse impact, impairment, inconvenience or nuisance, and agrees to indemnify the Association against any claims with respect to such matters.
6.2 Rights of Entry.
The Board of Directors shall have a limited right of entry in and upon the Common Property and the interior of all Units for the purpose of inspecting the Project and taking whatever corrective or maintenance action may be deemed necessary or proper by the Board of Directors, consistent with the provisions of this Declaration. However, such entry upon the interior of a Unit shall be made, except to effect emergency repairs or other emergency measures, only after three (3) days prior written notice to the Owner of such Unit. Nothing herein shall be construed to impose any obligation upon the Association to maintain or repair any property or Improvements required to be maintained or repaired by the Owners. Nothing in this Article VI shall in any manner limit the right of the Owner to exclusive occupancy and control over the interior of his or her Unit. However, an Owner shall permit a right of entry to the Board of Directors or any other person authorized by the Board of Directors, as reasonably necessary, such as in case of any emergency originating in or threatening his or her Unit, whether the Owner is present or not. Any damage caused to a Unit by such entry by the Board of Directors or by any person authorized by the Board of Directors shall be repaired by the Association as a Common Expense of the Association.
Furthermore, an Owner shall permit other Owners, or their representatives, to enter his or her Unit for the purpose of performing required installations, alterations or repairs to the mechanical or electrical services to a Unit, provided that such requests for entry are made at least three (3) days in advance and entry is made at a time reasonably convenient to the Owner whose Units is to be entered; and provided further, that the entered Unit is left in substantially the same condition as existed immediately preceding such entry. In case of an emergency, such right of entry shall be immediate. Any damage caused to a Unit by such entry by an Owner or its representative shall be repaired by such Owner.
Upon receipt of reasonable notice from the Association (which shall in no event be less than fifteen (15) days nor more than thirty (30) days) each Owner shall vacate his or her Unit in order to accommodate efforts by the Association to perform any other maintenance or repairs pursuant to the Declaration. The Board shall have the right to enter the Units and the right to remove Owners from their Units, as necessary, to accomplish its duties as provided herein. The cost of eradicating any pest infestation or of performing any such maintenance or repairs shall be a Common Expense of the Association; however, each Owner shall bear his or her own costs of temporary relocation. If the Association acts to eradicate any pests or organisms, then the procedure established in Section 2.7 shall control.
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43 ARTICLE VII
7. Declarant’s Rights and Reservations.
Nothing in the Restrictions shall limit, and neither any Owner nor the Association shall do anything to interfere with, the right of Declarant to subdivide or resubdivide any portion of the Property, or to complete Improvements to and on the Common Property or any portion of the Property owned solely or partially by Declarant, or to alter the foregoing or its construction plans and designs, or to construct such additional Improvements as Declarant deems advisable in the course of development of the Property so long as any Condominium in the Project remains unsold; provided, that an alteration of Declarant’s construction plans shall require prior approval of VA and FHA if such alteration is inconsistent with the general plan of development approved by VA and FHA.
The rights of Declarant hereunder shall include, but shall not be limited to, the exclusive right to install, maintain, locate, relocate and reconfigure such structures, displays, signs, billboards, flags, sales offices, model homes, construction office, interior design and decorator centers, and parking areas for employees, agents, and prospective buyers as may be reasonably necessary or convenient in Declarant’s judgment for the proper development and disposition of the Condominiums located within the Project by sale, resale, lease or otherwise, and the right to use any portions of the Project necessary to provide ongoing maintenance, operation, service, construction, punch-out, and repairs to individual Units and the Common Property.
Notwithstanding anything in the Restrictions which is or appears to be to the contrary, Declarant may use any Condominium owned by Declarant in the Project, or portions of the Common Property as model homes, construction office and/or real estate sales or leasing offices; provided that use of such office shall be limited to construction of the Project and/or sales, resales and leasing of the Condominiums located on the Property.
Declarant need not seek or obtain Architectural Committee approval of any Improvement constructed, reconstructed, modified or placed by Declarant on any portion of the Property owned by Declarant, or seek or obtain Architectural Committee approval of the construction upon the Annexable Territory, or a portion thereof, of a project of a type different than the Improvements previously constructed by Declarant upon the Property, or the annexation of all or a portion of the Annexable Territory containing such other project or projects to this Declaration pursuant to Article XVI below. Declarant further reserves the right (but not the obligation), subject to DRE review of a revised Budget for the Project, to provide for a “split roll” or “cost center” dues structure, so that the maintenance costs associated with maintenance of Common Property, or identified elements thereof, within separate portions of the Project are segregated and borne by the Owners of the Units within those portions of the Project. All or any portion of the rights of Declarant hereunder and elsewhere in these Restrictions may be assigned by Declarant to any successor in interest to any portion of Declarant’s interest in any portion of the Property by written assignment. Notwithstanding any other provision of this Declaration to the contrary, the prior written approval of Declarant, which may be granted or withheld in its sole discretion, will be required before any amendment of this Article shall be effective. Each Owner, with the exception of the VA, hereby grants, upon acceptance of his or her deed to his or her Unit, an irrevocable, special power of attorney to Declarant to execute and Record all documents and maps necessary to allow Declarant to exercise its rights under this Article. Declarant and its 289
44 prospective purchasers of Condominiums shall be entitled to the nonexclusive use of the Common Property and any recreational facilities, if any, thereon, without further cost for access, ingress, egress, use or enjoyment, in order to show the Property to those prospective purchasers, to dispose of the Property as provided herein, and to develop and sell the Annexable Territory. Declarant and its prospective purchasers of Condominiums shall be entitled to the nonexclusive use of the Common Property and recreational facilities, if any, thereon, without further cost for access, ingress, egress, use or enjoyment, in order to show the Property to those prospective purchasers, to dispose of the Property as provided herein. Declarant, its successors and tenants, shall also be entitled to the nonexclusive use of any portions of the Property which comprise private streets, drives and walkways for the purpose of ingress, egress and accommodating vehicular and pedestrian traffic to and from the Property and the Annexable Territory. The use of the Common Property by Declarant shall not unreasonably interfere with the use thereof by the other Members.
Each Owner, by accepting a deed to a Condominium, hereby acknowledges that the activities of Declarant may temporarily or permanently impair the view of such Owner and may constitute an inconvenience or nuisance to the Owners, and hereby consents to such impairment, inconvenience or nuisance. This Declaration shall not limit the right of Declarant to establish, reserve, and/or grant additional licenses, easements, reservations and rights-of-way to itself, to utility companies, or to others as may from time to time be reasonably necessary for the proper development and disposal of the Project.
Notwithstanding any other provisions of this Declaration to the contrary, and without limiting Declarant’s unilateral rights provided elsewhere in this Declaration or in the Restrictions, until such time as Owners other than Declarant own at least seventy-five percent (75%) of the Units within the Project, or until the fifth (5th) anniversary of the first Close of Escrow for a Unit, whichever occurs first, Declarant’s written consent shall be required before the Association may take any action with respect to the following:
(a) Reduction in the level of, or change in allocation of responsibility for maintenance of and repairs to all or any portion of the Common Property subject to this Declaration, or any other maintenance obligations of the Association set forth in this Declaration; (b) Conveyance by the Association of all or any portion of the Common Property;
(c) Alteration in the method of fixing and collecting Assessments or any increases in Assessments beyond the amounts permitted under Article V of this Declaration; (d) Modification of the enforcement and review procedures of the Architectural Committee, or any change in the architectural and landscaping design originally installed by Declarant;
(e) Modification to Improvements on the Common Property or to the level or frequency of maintenance of the Common Property; or (f) Alteration in the method of enforcing the provisions of this Declaration.
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45 Each Owner, by accepting a deed to a Condominium, hereby irrevocably appoints Declarant as his or her attorney-in-fact, for himself or herself and each of his or her Mortgagees, optionees, grantees, licensees, trustees, receivers, lessees, tenants, judgment creditors, heirs, legatees, devisees, administrators, executors, legal representatives, successors and assigns, whether voluntary or involuntary, for a period of ten (10) years after the Close of Escrow for the sale of the last Unit in the Project covered by a Final Subdivision Public Report and hereby grants to Declarant an irrevocable limited power of attorney coupled with an interest for Declarant to act as his or her attorney-in-fact in connection with any modification to the development plans of all or any portion of the Project. Each Owner hereby acknowledges and agrees that this irrevocable limited power of attorney is: (a) retained for the benefit of the Declarant and not the Owner; and (b) created by Owner’s acceptance of a deed to a Condominium and as part of the consideration for the purchase and sale of a Condominium. Based on the foregoing, each Owner further acknowledges and agrees that this irrevocable limited power of attorney is “coupled with an interest” and, pursuant to § 2356 of the California Civil Code, as same may be amended, from time to time, may not be terminated by: (a) the Owner’s revocation of such limited power of attorney; (b) the Owner’s death; or (c) the Owner’s incapacity to contract. In furtherance thereof and subject to the limitations and restrictions set forth in this Article, Declarant shall have the right and power as a duly authorized attorney-in-fact to perform any of the following actions:
(a) To prepare, execute, acknowledge and record any map, lot line adjustment, certificate of compliance or record of survey affecting the Project; (b) To prepare, execute, acknowledge and record any amendments necessary to cause a Condominium Plan to conform with the Improvements as actually built or with the approved plans for the Project;
(c) To prepare, execute, acknowledge and file for approval any application for zoning or setback changes or lot line adjustments, or variance or conditional use permits, or any other permits or reports required or permitted by law; (d) To make applications for any property reports or public reports, or amendments thereto, or exemption from the requirements therefor required or permitted by federal and State statutes, rules and regulations relating to the sale, lease, transfer or other disposition of subdivided lands;
(e) To deliver any public reports or property reports, or amendments thereto, obtain receipts and offer and administer rescission rights required by law; (f) To prepare, execute, acknowledge and file for approval any registration or application for any permit, approval, exemption, ruling or entitlement, which registration or application is required or permitted by law; (g) To prepare, execute, acknowledge and record any deeds, waivers, releases, reconveyances or other documentation which may be permitted or required to (i) clear title to any constructed or unconstructed Units in the Project, (ii) evidence the modifications made to the Project pursuant to this Section, or (iii) correct any errors or omissions in any deed or other instruments; and
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46 (h) To prepare, execute, acknowledge and record on behalf of the Owners and the Association any easement over the Common Property, including, without limitation, any easements reasonably necessary for the development and disposition of Condominiums within the Project.
The Association shall provide Declarant with all notices and other documents to which a Beneficiary is entitled pursuant to this Declaration, provided that Declarant shall be provided such notices and other documents without making written request therefor. If any portion of the Annexable Territory is not annexed to this Project pursuant to the provisions of this Declaration, and that portion of the Annexable Territory requires ingress and egress access over private streets located within the Project and/ or access to and use of common utilities within the Project, easements shall exist and are hereby reserved in favor of the owners of that portion of the Annexable Territory for reasonable vehicular and pedestrian traffic and reasonable use of the common utilities for residential development; provided, that, in that event, the properties benefitted by that easement, and the owners thereof, shall be obligated to pay their equitable share of the costs of maintenance and repair of said private streets and utilities, and, as a condition to the effectiveness of such easements, the properties benefitted, and the owners thereof shall be subjected to Recorded covenants obligating them to pay annual and special assessments for the cost of maintenance and repair of said streets. In the event of any disagreement as to the reasonableness of said annual and/or special assessments, or the division thereof, the matter shall be submitted to a neutral arbitrator approved by the Board and the representative of the owners benefitted by such easements or, in the absence of agreement on such arbitrator, by a judicial reference action pursuant to Code of Civil Procedure §§ 638-645.1 (or any successor or replacement statutes thereto).
Declarant shall have the right to assign any or all of its rights and obligations in this Declaration to any successor in interest by a written assignment. Notwithstanding any other provision of this Declaration to the contrary, the prior written approval of Declarant, which may be granted or withheld in its sole discretion, will be required before any amendment to this Article VII shall be effective. The foregoing rights established and reserved by Declarant shall be subject only to the applicable regulations and requirements of the DRE and the city or county in which the Project is located.
For a period of ten (10) years after the Close of Escrow for the sale of the last Unit in the Project, in addition to Declarant’s rights as an Owner and a Member, Declarant shall have the following rights: (1) access to and the right to inspect the Association books and financial records; (2) access to and the right to inspect the Association’s maintenance records; (3) access to and the right to inspect the Common Property; (4) right to receive notice of, attend and speak at all meetings of the Members; and (5) right to receive copies of the minutes of the meetings of the Board of Directors and meetings of the Members, upon request and payment of the actual costs to copy and distribute such records.
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47 ARTICLE VIII
8. Residence and Use Restrictions.
All of the Project shall be held, used and enjoyed subject to (i) the limitations and restrictions set forth herein, and (ii) the exemptions of Declarant set forth in this Declaration.
8.1 Single Family Residences.
Each Residence shall be used exclusively for single Family residential purposes, subject to the exemption granted Declarant under Article VII of this Declaration. An Owner may rent or lease his or her Unit to a single Family pursuant to the Leasing Provisions set forth herein. (a) Leasing Provisions. The following provisions shall govern leasing of Units:
(1) General. All leases must be in writing and for an initial term of not less than thirty (30) days. Within seven (7) days after executing a lease agreement for the lease of a Unit, the Unit Owner shall provide the Board with a copy of the lease and the name of the lessee and all other people occupying the Unit. The Owner must provide the lessee with copies of the Declaration, Bylaws, and Rules and Regulations.
(2) Compliance with Restrictions and Liability for Assessments.
Each Owner and each lessee, by occupancy of a Unit, covenants and agrees that any lease for a Unit shall contain the following provisions and agrees that if such provisions are not expressly contained therein, then such provisions shall be deemed incorporated into the lease by existence of this covenant on the Unit:
(A) Compliance with Declaration, Bylaws, and Rules
and Regulations. The lessee shall comply with all provisions of the Restrictions and shall control the conduct of all other occupants and guests of the leased Unit in order to ensure compliance with the foregoing. The Owner shall cause all occupants and guests of his or her Unit to comply with the Restrictions and shall be responsible for all violations by such occupants and guests, notwithstanding the fact that such occupants and guests are fully liable and may be separately sanctioned for any such violation. Unpaid fines shall, at the election of the Board, be recorded as a lien against the Unit, provided any such lien shall not be subject to non-judicial foreclosure under California Civil Code §§ 2924a, 2924b and 2924c (or any successor or replacement statutes). (B) Violation of Restrictions. Any violation of the
Restrictions by the lessee, any occupant, or any guest of lessee, shall be deemed a default under the terms of the lease and shall authorize the Owner to terminate the lease without liability and to evict the lessee in accordance with California law. The Owner hereby delegates and assigns to the Association, acting through the Board, the power and authority of enforcement against the lessee for breaches resulting from such violations, including the power and authority to evict the lessee as attorney-in-fact on behalf and for the benefit of the Owner, in accordance with the terms hereof.
If the Association proceeds to evict the lessee, any costs, including attorney’s fees and court costs, associated with the eviction shall be a Special Assessment and lien against the Unit. 293
48 (C) Liability for Assessments. When a Unit Owner who is leasing his or her Unit fails to pay any Annual Assessment or other Assessment or any other charge to be paid by the Owner to the Association pursuant to this Declaration for a period of more than thirty (30) days after it is due and payable, then the delinquent Owner hereby consents to the assignment of any rent received from the lessee during the period of delinquency, and, upon request by the Board, lessee shall pay to the Association all such rent until all unpaid amounts owed by the Owner to the Association have been paid in full. All such payments made by lessee shall reduce, by the same amount, lessee’s obligation to make monthly rental payments to lessor.
The above provision shall not be construed to release the Owner from any obligation, including the obligation for Assessments, for which he or she would otherwise be responsible. (b) Inapplicability to Institutional First Mortgages. Section 8.1 shall not apply to any leasing transaction entered into by an institutional holder (i.e., a bank, a savings and loan association, an established mortgage company or other entity chartered under federal or state laws, an insurance company, or any federal or state agency) of any first Mortgage on a Unit who becomes the Owner of a Unit through foreclosure or any other means pursuant to the satisfaction of the indebtedness secured by such Mortgage.
8.2 Alterations; Inside and Outside Installations.
All air conditioning condensers that are not located within private patio areas must be screened by a masonry screen wall to match patio walls. No Owner shall make or cause to be made structural alterations to his or her Unit or to the Common Property which will or may tend to impair the structural integrity, mechanical systems, or sound attenuation standards of the Condominium Building, or would have a material detrimental effect on another Unit or on the Common Property, except as otherwise expressly provided herein. No outside installation of any type, including but not limited to stereo speakers or other amplified sound equipment, clotheslines, shall be constructed, erected or maintained on any Terrace or outside any Unit, except as may be installed by Declarant, or with the prior consent of the Architectural Committee. No Terrace covers, wiring, water softeners, or other machines or equipment of any kind or nature shall be installed on the exterior of the buildings of the Project or be allowed to protrude through the walls, floors, ceilings, windows, doors, or roofs of the buildings (with the exception of those items installed during the original construction of the Project), unless the prior written approval of the Architectural Committee is secured. Notwithstanding the specificity of the foregoing, no exterior addition, change or alteration to any Unit shall be commenced without the prior written approval of the Architectural Committee. Each Owner shall be liable for any damage or injury caused by any alterations, replacements, or installations, or any machines or equipment used to perform such work. There shall be no alteration or replacement of wall coverings or flooring materials which may diminish the effectiveness of the sound control engineering within the Condominium Building. No Owner shall cause or permit any mechanic’s lien to be filed against any portion of the Project for labor or materials alleged to have been furnished or delivered to the Project or any Condominium Unit at the request of such Owner, and any Owner who does so shall immediately cause the lien to be discharged within five (5) days after notice to the Owner from the Board. If any Owner fails to remove such mechanic’s lien, the Board may discharge the lien and charge the Owner a Special Assessment for such cost of discharge.
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49 8.3 Animal Regulations.
No animals, livestock, reptiles, insects, poultry or other animals of any kind shall be kept in any Separate Interest except that usual and ordinary domestic dogs, cats, fish, and birds inside bird cages may be kept as household pets within any Separate Interest provided that they are not kept, bred or raised therein for commercial purposes or in unreasonable quantities or sizes.
As used in this Declaration, “unreasonable quantities” shall ordinarily mean more than two (2) pets (except with regard to quantities of fish, which may be more than two (2) per Separate Interest; provided, however, that the Board may determine that a reasonable number of pets in any instance may be more. Aquariums for aquatic animals shall not exceed thirty (30) gallons. No potbellied pigs, snakes, or any other animals determined in the Board’s sole discretion to be dangerous or a nuisance may be brought onto or kept on the Project at any time. The Board shall have the right to require that any pet which, in the Board’s opinion, endangers the health or security of any Owner or occupant of a Unit or creates a nuisance or unreasonable disturbance, be permanently removed from the Project upon seven (7) days written notice. If the Owner or occupant fails to do so, the Board may remove the pet. Any pet which, in the Board’s sole discretion, presents an immediate danger to the health, safety, or property of any Owner or other occupant of a Unit may be removed by the Board without prior notice to the pet’s owner. Animals belonging to Owners, occupants or their licensees, tenants or invitees within the Property must be kept inside the Dwelling Unit or within the Terrace of that Unit, and must be on a leash (not more than four feet (4’) in length) held by a person capable of controlling the animal if outside of a Unit. Furthermore, any Owner shall be liable to each and all remaining Owners, their Families, guests and invitees, for any unreasonable noise or damage to person or property caused by any animals brought or kept upon the Project by an Owner or by members of his or her Family, tenants or guests. It shall be the duty and responsibility of each such Owner to clean up after such animals which have deposited droppings on or otherwise used any portion of the Common Property or any public street abutting or visible from the Property and properly dispose of any animal waste. Any Owner or occupant who keeps or maintains any pet upon the Project shall be deemed to have indemnified and agreed to hold the Association, its directors, officers, and agents, and the Declarant free and harmless from any loss, claim, or liability of any kind or character whatever arising by reason of keeping or maintaining such pet within the Project.
8.4 Antenna.
No radio station, satellite or shortwave operators of any kind shall operate from any Unit or any other portion of the Property unless approved by the Architectural Committee. With the exception of any master antenna maintained by the Association, no exterior radio antenna, “C.B.” antenna, television antenna, receiving station, satellite dish or other antenna of any type (collectively, “Signal Reception Device”) shall be erected or maintained anywhere in the Property, without the approval of the Architectural Committee. In considering whether to approve any such application and what conditions, if any, to impose thereon, the Committee may consider any clearly defined safety objective, the impact of any such Signal Reception Device upon Project aesthetics and uniformity of appearance, and any potential structural damage arising from such Signal Reception Device, provided that any restriction imposed by the Committee shall be reasonable, as required by California Civil Code § 4725 (or any successor or replacement statute) and rules and regulations promulgated by the Federal Communications Commission pursuant § 207 of the Telecommunications Act of 1996 (collectively, the “Antenna Statutes”). In no event 295
50 shall the Committee impose any requirement in violation of the Antenna Statutes that would unreasonably delay or prevent installation, maintenance or use of such Signal Reception Device within an Owner’s Unit’s boundaries and/or exclusive use areas, unreasonably increase the cost of installation, maintenance or use, or prevent reception of an acceptable quality signal. In reviewing an application for approval to install a Signal Reception Device, the Committee shall apply the same standards, criteria and guidelines to such application as applicable to any other proposed exterior improvement to any Unit and shall not impose any differential or discriminatory requirements applicable only to a proposed Signal Reception Device. In granting approval of the installation of any such Signal Reception Device, the Architectural Committee may further condition such approval upon compliance with any reasonable restrictions authorized by Antenna Statutes, including, without limitation, provisions concerning the maintenance, repair, or replacement of roofs or other Dwelling Unit components and requirements for the installing Owner to indemnify the Association and its Members for loss or damage caused by the installation, maintenance, or use of those Improvements.
8.5 Business or Commercial Activity.
No part of the Unit shall ever be used for any business, professional, administrative, commercial (including auctions or similar events), manufacturing, mercantile, storage, vending or other nonresidential purposes including, without limitation, any activity for which the provider is compensated in any way or receives any form of consideration, regardless of whether the activity is engaged in full or part-time, generates or does not generate a profit, or requires or does not require a license; except that Declarant, its successors and assigns may use any portion of the Property for a model home site and for sales and leasing purposes in accordance with Article VII hereof. Notwithstanding the foregoing, the provisions of this Section 8.5 shall not preclude any of the above-described activities without external evidence thereof, provided that all of the following conditions are fulfilled: (a) such activities are conducted in conformance with all applicable governmental ordinances; (b) the patrons or clientele of such activities do not visit the Unit or park automobiles or other vehicles within the Property; (c) the existence or operation of such activities is not apparent or detectable by sight, sound or smell from outside of the boundaries of the Unit (except that a reasonable number of deliveries which does not disproportionately burden the services of the Project by couriers, express mail carriers, parcel delivery services and other such similar delivery services are permitted during business hours); (d) no such activity increases the liability or casualty insurance obligation or premium of the Association; and (e) such activities are consistent with the residential character of the Property and conform with the provisions of this Declaration. No Owner shall use his or her Condominium in such a manner as to interfere with the business of Declarant in selling Condominiums in the Project, as set forth in Article VII of this Declaration.
Additionally, notwithstanding the foregoing restrictions and requirements, the provisions of this Section 8.5 shall not preclude any of the following:
(a) Health care facilities operating as a business or charity and serving the sick, elderly, disabled, handicapped, or persons with physical, intellectual and developmental disabilities which are permitted by law or ordinance that preempts this Declaration; or 296
51 (b) Family day care center for children which are specifically authorized by California Health and Safety Code § 1597.40 and other applicable state statutes.
The owner/operator of the day care center shall comply with all local and state laws regarding the licensing and operating of a day care center and, in addition, shall (i) name the Association as an additional insured on the liability insurance policy or bond carried by the owner/operator of the day care center, (ii) defend, indemnify and hold the Association harmless from any liability arising from the existence and operation of the day care center, (iii) comply with all of the Restrictions, (iv) supervise and be completely responsible for children at all times while they are within the Project.
8.6 Common Property Facilities.
Nothing shall be altered, constructed, or removed from the Common Property without the prior written consent of the Board of Directors. There shall be no obstruction of the Common Property nor shall anything be stored in the Common Property without the prior written consent of the Board of Directors. No acquisition of additional Common Property shall be undertaken without the approval of the Board of Directors. The Board of Directors shall have the right to limit the number of guests that an Owner or such Owner’s tenant may permit to use the recreational facilities and other Common Property areas, and the Board shall have the right to set further reasonable restrictions on the time and manner of use of said recreational facilities and other facilities in accordance with the Rules and Regulations, including, without limitation, Rules and Regulations restricting or prohibiting the use of all or designated portions of the recreational facilities of the Property by minors, guests of an Owner or his or her tenants.
8.7 Drainage.
There shall be no interference with or alteration of the established drainage pattern over the Property, unless an adequate alternative provision is made for proper drainage and is first approved in writing by the Architectural Committee. For the purpose hereof, “established” drainage in any Phase of Development is defined as the drainage which exists at the time of the first Close of Escrow for the sale of a Condominium in such Phase of Development, or that which is shown on any plans approved by the Architectural Committee.
No Person may block or interfere with the proper function or maintenance of any Drainage and Stormwater Quality Improvements on the Separate Interest. No Person may modify, remove existing Improvements or change the flow of surface water without first obtaining all required approvals from the Association and applicable governmental authorities for an alternative drainage plan. Therefore, no Person may install, alter, modify, remove or replace any Drainage and Water Quality Improvements on his or her Separate Interest without first making alternative drainage arrangements approved in writing by the Architectural Review Committee and applicable governmental authorities. Owner-installed irrigation systems must be installed and maintained to prevent excess runoff and accumulation of surface water.
8.8 Firearms and Fireworks.
The display and discharge of firearms or fireworks on the Common Property is prohibited; provided that the display of lawful firearms on the Common Property is permitted by 297
52 law enforcement officers and also is permitted for the limited purpose of transporting lawful firearms across the Common Property to or from the Owner’s Unit. The term “firearms” includes “B-B” guns, pellet guns, and other firearms of all types, regardless of size.
8.9 Further Subdivision.
Except as otherwise provided in Article VII, no Owner shall physically or legally subdivide his or her Unit in any manner, including without limitation any division of his or her Unit or Condominium into time-share estates or time-share uses; provided, however, that this provision shall not be construed to limit the right of an Owner (1) to rent or lease all of his or her Unit by means of a written lease or rental agreement subject to the restrictions of this Declaration; (2) to sell his or her Condominium; or (3) to transfer or sell any Condominium to more than one Person to be held by them as tenants-in-common, joint tenants, tenants by the entirety or as community property. Any failure by the lessee of the Unit to comply with the terms of this Declaration, the Bylaws of the Association or the Rules and Regulations or any other Restrictions, shall constitute a default under the lease or rental agreement. Notwithstanding the foregoing, no Unit in the Project may be partitioned or subdivided without the prior written approval of the Beneficiary of any first Mortgage on that Unit. This Section may not be amended without the prior written approval of the Beneficiaries of at least seventy-five percent (75%) of the first Mortgages of Condominiums in the Project.
8.10 Garbage/Trash.
Each Owner shall use the centrally-located trash enclosures for the Project, and shall not place any individual trash container outside for trash collection. No garbage, trash, rubbish, or other waste material shall be kept or permitted on the Project except in garbage cans, trash containers, trash chutes, or other waste receptacles located on the Project provided for the use of all Owners. All trash must be bagged or otherwise sealed before using any trash chute located in the Project. No odor shall emanate therefrom so as to be unreasonably unsanitary, unsightly, offensive or detrimental to the Owners in the Project. Under no circumstances may explosives, fireworks, or highly flammable materials such as gasoline, kerosene, oil, oil-based paints, or solvents, be disposed of in the trash chutes or anywhere else in the Project. Any and all costs incurred by the Association for the removal of combustible or toxic materials from the trash chutes shall be borne by the offending Owner at such Owner’s sole cost and expense.
8.11 Hazardous, Toxic, Flammable, Corrosive or Explosive Materials.
No Owner nor any Family member, tenant, lessee, agent, employee, licensee, or guest shall at any time bring onto or store in or on the Project any hazardous, toxic, flammable, corrosive or explosive solid, liquid, gas, or chemical substance or other material which may be hazardous to any Person or property, except for household items, handled, store and applied in accordance with all applicable government restrictions, which are normal and customary to the use and enjoyment of a residential dwelling. Use and disposal of pesticides, fungicides, herbicides, insecticides, fertilizers, and other such chemical treatments shall meet federal, state, county, and city requirements. Under no circumstances may explosives or fireworks be stored by Owners on their Units or elsewhere within the Project. Nothing other than natural rain water may be discharged into the storm drains and storm drainage system located on the Property. Toxic 298
53 chemicals or hydrocarbon compounds such as gasoline, motor oil, antifreeze, solvents, paints, paint thinners, wood preservative and other such fluids shall not be discharged into storm drains or storm drainage systems on the Property or into any street, public or private. All water softeners installed in a Unit must be commercially serviced.
8.12 Nuisances.
No noxious or offensive activities (including but not limited to the repair of motor vehicles) shall be carried on upon the Property or on any public street abutting or visible from the Property. No horns, whistles, bells or other sound devices, except security devices used exclusively to protect the security of a Residence and its contents, shall be placed or used in any such Residence. No loud noises, noxious odors, noisy or smoky vehicles, large power equipment or large power tools (excluding lawn mowers and other equipment utilized in connection with ordinary landscape maintenance), unlicensed off-road motor vehicles or items which may unreasonably interfere with television or radio reception of any Owner in the Project, shall be located, used or placed on any portion of the Property or on any public street abutting or visible from the Property, or exposed to the view of other Owners without the prior written approval of the Architectural Committee. The Board of Directors of the Association shall have the right to determine if any noise, odor, or activity producing such noise or odor constitutes a nuisance. No Owner shall permit or cause anything to be done or kept upon the Property or on any public street abutting or visible from the Property which may increase the rate of insurance on Units or on the Property, or result in the cancellation of such insurance, or which will obstruct or interfere with the rights of other Owners. No Person shall commit or permit any nuisance on the Property. Each Owner shall comply with all of the requirements of the local or state health authorities and with all other governmental authorities with respect to the occupancy and use of a Residence. Each Owner shall be accountable to the Association and other Owners for the conduct and behavior of children and any other Family members or persons residing in or visiting his or her Unit. Any damage to the Common Property, personal property of the Association, or property of another Owner, caused by such children, Family members, or other persons, shall be repaired at the sole expense of the Owner of the Unit where such children, Family members or other persons are residing or visiting.
8.13 Parking and Vehicular Restrictions.
(a) Authorized Vehicles. The following vehicles are Authorized Vehicles: motorized land vehicles designed and used primarily for non-commercial passenger transport, such as automobiles, passenger vans designed to accommodate ten (10) or fewer people, two-wheel motorcycles, and pick-up trucks having a manufacturer’s rating or payload capacity of one (1) ton or less. Subject to Section 8.14(c) below, only Authorized Vehicles of guests of Owners may park in the guest parking areas in the Property intended for parking of motorized vehicles.
(b) Prohibited Vehicles. The following vehicles are Prohibited Vehicles: recreational vehicles (e.g., motor homes, travel trailers, camper vans, boats, dune buggies, etc.), commercial-type vehicles (e.g., stake bed trucks, tank trucks, dump trucks, step vans, concrete trucks, trucks with any exterior commercial advertisement, or other similar vehicles), buses or vans designed to accommodate more than ten (10) people, vehicles having 299
54 more than two (2) axles, trailers, inoperable vehicles or parts of vehicles, aircraft, other similar vehicles or any vehicle or vehicular equipment deemed a nuisance by the Board. Except as permitted in this Section 8.14, Prohibited Vehicles shall not be parked, stored or kept on any public or private street or driveway within the Property or on any other Common Property parking area unless specifically permitted by the City. Except as otherwise permitted by the City as set forth in the preceding sentence, Prohibited Vehicles may only be parked (i) within an Owner’s fully-enclosed garage with the door closed so long as their presence on the Property does not otherwise violate the provisions of this Declaration, and (ii) so long as their presence on the Property does not otherwise violate the provisions of this Declaration. (c) General Restrictions. All Authorized Vehicles owned or operated by or within the control of an Owner or a resident of an Owner’s Unit and kept within the Property shall be parked in that Owner’s garage. Each Owner shall maintain his or her garage in a manner which ensures that it is capable of accommodating at least the number of vehicles for which it was originally designed, i.e., two cars for a two-car garage. No construction work shall obstruct the ability to use an Owner’s garage for vehicle parking. There shall be no parking in the Property that obstructs free traffic flow, constitutes a nuisance, violates the Rules and Regulations, or otherwise creates a safety hazard. The parking areas in the Property shall be used for parking Authorized Vehicles only and shall not be used for storage, living, recreational or business purposes. No repair, maintenance or restoration of any vehicle shall be conducted on the Property except within an enclosed garage when the garage door is closed, provided such activity is not undertaken as a business, and provided that such activity may be prohibited entirely by the Board if the Board determines that it constitutes a nuisance. No parking shall be permitted in the fire lanes located in the Project, which fire lanes shall be appropriately marked and identified by the Association.
(d) Parking Regulations. Parking spaces on the streets within the Common Property shall remain unassigned and available for the nonexclusive use of the guests and invitees temporarily visiting the Property. In any event, no stopping shall be permitted in any fire lanes located in the Project. The Board may establish additional regulations as it deems appropriate in its sole discretion with regard to any of the parking areas in the Project. Any parking areas established on the Common Property shall be subject to such further reasonable control and use limitations as the Board of Directors may establish. The Board shall determine, in its discretion, whether there is a violation of the parking and vehicular restrictions set forth in this Declaration or established by the Board, and, if such noncompliance is determined by the Board to exist, the Board shall have the power to enforce all parking and vehicle use regulations applicable to the Property, including the power to remove violating vehicles from any of the Property pursuant to California Vehicle Code § 22658.2, including any amendments thereto and any successor or replacement statute, or other applicable statute.
8.14 Rights of Handicapped.
Subject to the provisions of Article IV of this Declaration, each Owner shall have the right to modify his or her Unit and the route over the Common Property leading to the front door of his or her Unit, at his or her sole cost and expense, in order to facilitate access to his or her Unit by persons who are blind, visually handicapped, deaf or physically disabled, or to alter conditions which could be hazardous to such persons. The rights granted by this Section are further 300
55 subject to the following conditions: (i) the modifications shall be consistent with applicable building code requirements; (ii) the modifications shall be consistent with the intent of otherwise applicable provisions of this Declaration pertaining to safety or the aesthetic integrity of the Project; (iii) the modifications which are external to the Unit shall not prevent reasonable passage by other Owners or Persons on the Project, and shall be removed by the Owner when the Unit is no longer occupied by persons requiring those modifications; (iv) any Owner who intends to modify a Unit pursuant to this Section shall submit their plans and specifications to the Architectural Committee for review to determine whether the modifications comply with the provisions of Article IV and this Section; and (v) any change in the exterior appearance of a Unit shall be in accordance with the provisions of this Declaration and all applicable provisions of law.
The Association shall not deny approval of the proposed modifications under this Section without good cause.
8.15 Roof: Access Restrictions.
Owners, members or their families, guests, tenants, agents, licensees, employees, and invitees, shall not at any time or for any reason whatsoever enter upon or attempt to enter upon (i) the roofs of the Condominium Building (except for any roof deck appurtenant to an Owner’s Unit); and (ii) any portion of the Common Property used by the Association for management, administrative, or security purposes (including, without limitation, utility closets and rooms), without the prior approval of the Board. Each Owner shall make arrangement with the Association for access to the roof for any maintenance or repairs to any solar, heating or cooling equipment which is located on the roof.
8.16 Signs.
Subject to California Civil Code §§ 712, 713 and 4710 (or any successor or replacement statutes), no signs shall be displayed to the public view on any Unit or on any other portion of the Project, except non-commercial signs may be displayed from any Unit that are approved by the Board or a committee appointed by the Board, that conform to the Rules and Regulations regarding signs, and that conform to the requirements of State law, and applicable local ordinances. “For Sale” or “For Rent” or “For Exchange” signs shall be allowed to be displayed within areas of the Project that are designated in the Rules and Regulations regarding such signs, and that conform to the requirements of State law, and applicable local ordinances, provided the design, dimensions and locations are reasonable. An Owner or his or her agent may display one (1) such For Sale or For Rent or For Exchange sign within his or her Unit and one (1) sign in the Common Property advertising directions to the Owner’s Unit which is for sale, rent, or exchange, provided the design, dimensions and locations are reasonable and comply with the Rules and Regulations regarding signs, and comply with the requirements of State law, and applicable local ordinances. These restrictions on display of signs apply to signs that are visible from the exterior of a Unit, and are not intended to restrict signs that may be seen only from within the Unit in which the sign(s) is displayed. The Board shall also have the right, but not the obligation, to erect within the Common Property a master directory of Units which are for sale or lease within the Project, which master directory shall be located on or at an area in the immediate vicinity of the Condominium Building entrance so as to centralize and segregate all sales activity and locations within the Project. This Section shall not apply to any signs used by Declarant or its agents in connection with the sale of Condominiums or the construction or alteration of the Units 301
56 or Common Property, traffic and visitor parking signs installed by Declarant, and traffic and parking control signs installed with the consent of the Board. Notwithstanding the foregoing, nothing contained in this Section shall be construed in such manner as to permit the maintenance of any sign which is not in conformance with any ordinance of the city or county in which the Property is located.
8.17 Sound Attenuation.
In any multi-family dwelling, sound may be audible between Units, particularly where the sound level of the source is sufficiently high and the background noise in an adjacent Unit is very low. Each Owner shall endeavor to minimize any noise transmission from his or her Unit, and shall adhere to any of the Rules and Regulations which are designed to minimize noise transmission. The requirements set forth in this Section are subject to further definition and more stringent requirements adopted by the Architectural Committee from time to time. In the event of any conflict between or among the protective covenants set forth in this Declaration and the Building Code or applicable municipal code requirement, as the same may be amended from time to time, the most restrictive of said requirements shall be controlling.
To minimize the noise transmission from a Unit, each Owner (other than Declarant) shall adhere to the following:
(a) No holes or other penetrations shall be made in demising walls (party walls) without the permission of the Committee. No penetrations of any sort shall be made in the ceiling of any Unit.
(b) No modifications shall be made to any Unit which would result in a reduction in the minimum impact insulation class of the Condominium Building. (c) No modifications shall be made to the exterior walls of a Unit which would conflict with the requirements of any sound control provision in the City Building Code. A Unit Owner may retain a qualified acoustical engineer to submit evidence for any alternative means of sound insulation satisfactory to the City’s Department of Building and Safety. (d) Loudspeakers for music reproduction and television shall not be supported from or contact demising walls, and shall be elevated from the floor by a proper acoustic platform.
(e) Musical equipment or other equipment which may cause vibrations shall have at least ½ inch neoprene pads under the supports to minimize vibration transmission into the structure.
8.18 Terraces.
Private patio for each Unit shall have a minimum dimension of ten feet (10'), and wall height shall be limited to 36" maximum on private patios, including a decorative cap, and such patio walls shall match the building finish and have a decorative cap. Terraces shall be used only as an outdoor living area containing patio furniture, barbeques, potted plants, and other similar outdoor furnishings which comply with the standards governing the appearance of such items as 302
57 set forth in the Rules and Regulations. Said furnishings shall be equipped with protective leg caps or other devices to prevent damage to the floor of the Terrace. No Improvement shall be nailed, bolted, or otherwise attached to the floor, walls, or any other portion of the Terrace. No hanging screens or banners which may be visible from any other Units, the Common Property or other property are permitted on any portion of the Terrace. Any plants placed on Terraces must have sufficiently large receptacles to contain all drainage from such plants and must not be allowed to collect condensates or moisture between the receptacles and the Terrace’s floor. Any item or vegetation maintained upon any Terrace, which item or vegetation is exposed to the view of any Owner, shall be removed or otherwise altered to the satisfaction of the Architectural Committee, if such Committee determines that the maintenance of such item or vegetation in its then existing state is contrary to the purposes or provisions of this Declaration and the effective operation of the Project. If an Owner fails to perform necessary pruning, trimming, or thinning required by the Committee, the Association shall have the right, after Notice and Hearing, to enter upon such Residence and Terrace for the purpose of performing such work.
Terraces shall not be used for storage of any type, including, without limitation, boxes, tools, exercise and sports equipment, bicycles, cleaning utensils and supplies or other household items. Terraces shall be maintained in a clean, neat, and sanitary condition at all times and nothing shall be placed on Terraces so as to render them unsightly or offensive to the other Owners or to any other property in the vicinity of the Project or its occupants. No clothing or household fabrics, curtains, rugs, mops, or other unsightly articles shall be hung, dried or aired in such a way as to be visible from any other Units, the Common Property or other property. No dust, dirt or other substances shall be shaken, swept or thrown from or hosed off the Terraces on or into any Common Property. Any item which in the opinion of the Board or the Committee is unsightly or offensive shall be removed from the Terrace upon receipt of written notice of such determination from the Board or the Committee.
No Terrace covers shall be installed on the exterior of the Condominium Building (with the exception of those items installed during the original construction of the Project), unless the prior written approval of the Architectural Committee is secured. Notwithstanding the specificity of the foregoing, no exterior addition, change, or alteration to any Unit shall be commenced without the prior written approval of the Architectural Committee.
8.19 View Obstructions.
No vegetation or other obstruction shall be planted or maintained in such location or of such height as to unreasonably obstruct the view from any other Unit in the vicinity thereof.
If there is a dispute between Owners concerning the obstruction of a view from a Unit, the dispute shall be submitted to the Architectural Committee, whose decision in such matters shall be binding.
Any such obstruction shall, upon request of the Architectural Committee, be removed or otherwise altered to the satisfaction of the Architectural Committee, by the Owner of the Unit upon which the obstruction is located. The Architectural Committee shall ensure that the vegetation on the Common Property maintained by the Association is cut frequently. Each Owner, by accepting title to a Condominium, hereby acknowledges that (a) although the Architectural Committee may prohibit the installation of Improvements on a Unit or prohibit the installation or require the pruning, trimming or thinning of landscaping from a Unit where such Improvements or landscaping would unreasonably obstruct the views from any other Units, there are no protected 303
58 views within the Property, and no Condominium is assured the existence or unobstructed continuation of any particular view, and (b) any construction, landscaping or other installation of Improvements by Declarant or other Owners may impair the view from any Condominium, and the Owners hereby consent to such view impairment.
8.20 Water Supply System.
Only use solar or low-emission water heaters are permitted to be used in the Project.
No individual water supply or water softener system shall be permitted in any Unit unless such system is designed, located, constructed and equipped in accordance with the requirements, standards, and recommendations of any applicable water district, the locality in which the Property is located, and all other applicable governmental authorities. No tampering, modifying, cross connecting or other alteration of any existing water system shall occur without the Architectural Committee’s approval, which will require inspection before, during and after completion of work to ensure that no cross connection of water system has occurred.
8.21 Window Coverings.
No window in any Unit shall be covered in whole or in part, inside or outside, with aluminum foil, newspaper, paint, reflective tint or covering, or any other material reasonably deemed by the Architectural Committee to be inappropriate for such use. No window covering shall be installed (with the exception of those items installed during the original construction of the Project), unless the prior written approval of the Architectural Committee is secured. All draperies and other window covering must be lined with white or off-white colored materials on the side visible from the outside of the Unit.
ARTICLE IX
9. Insurance.
9.1 Duty to Obtain Insurance; Types.
The Board shall cause to be obtained and maintained the following insurance:
(a) Adequate blanket public liability insurance (including medical payments), with such limits as may be considered acceptable to FHA, VA, FNMA, FHLMC, and/or GNMA (not less than Three Million Dollars ($3,000,000)) covering all claims for personal injury and property damage arising out of a single occurrence), insuring against liability for bodily injury, death and property damage arising from the activities of the Association and its Members or from activities of the officers and directors of the Association acting in their capacity as representatives of the Association, with respect to the Common Property. (b) The Board shall also cause to be obtained and maintained fire and casualty insurance with extended coverage, without deduction for depreciation, in an amount equal to one hundred percent (100%) of current replacement cost of the Common Property and all Improvements thereon. Such insurance shall be maintained for the benefit of the Association, the Owners, and the Mortgagees, as their interests may appear as named insured, subject, however, to loss payment requirements as set forth herein. 304
59 (c) The Board of Directors shall purchase such other insurance and endorsements, as it determines necessary, including, but not limited to, casualty, errors and omissions, directors, officers and agents liability insurance, automobile liability insurance, plate glass insurance, medical payments, malicious mischief, liquor liability and vandalism insurance, flood insurance, fidelity bonds and worker’s compensation, and insurance against such other risks as is customarily carried with respect to condominium projects similar in construction, location and use.
(d) Notwithstanding anything herein to the contrary, all insurance maintained by the Board shall satisfy the following:
(1) Minimum requirements imposed for this type of project by FHA, VA, FNMA, FHLMC, and/or GNMA, (so long as any of which is a Mortgagee or Owner of a Condominium within the Project) except to the extent such coverage is not available or has been waived in writing by FHA, VA, FNMA, FHLMC, and/or GNMA, as applicable; and (2) California Civil Code §§ 5800 and 5805 (or any successor or replacement statutes).
(e) Fidelity bond coverage which names the Association as an obligee must be obtained by or on behalf of the Association for any person or entity handling funds of the Association, including, but not limited to, officers, directors, trustees, employees and agents of the Association and employees of the Manager of the Association, whether or not such Persons are compensated for their services, in an amount not less than the estimated maximum of funds, including reserve funds, in the custody of the Association or the Manager, as the case may be, at any given time during the term of each bond. However, in no event may the aggregate amount of such bonds be less than the sum equal to one-fourth (¼) of the Annual Assessments on all Condominiums in the Project, plus reserve funds.
9.2 Waiver of Claim Against Association.
As to all policies of insurance maintained by or for the benefit of the Association and the Owners, the Association and the Owners hereby waive and release all claims against one another, the Board of Directors and Declarant, to the extent of the insurance proceeds available, whether or not the insurable damage or injury is caused by the negligence of or breach of any agreement by any of said Persons.
9.3 Right and Duty of Owners to Insure.
It is the responsibility of each Owner to provide insurance on his or her personal property and upon all other property and Improvements within his or her Unit. Nothing herein shall preclude any Owner from carrying any public liability insurance as he or she deems desirable to cover his or her individual liability for damage to person or property occurring inside his or her individual Unit or elsewhere upon the Property. Such policies shall not adversely affect or diminish any liability under any insurance obtained by or on behalf of the Association, and duplicate copies of such other policies shall be deposited with the Board upon request. If any loss intended to be covered by insurance carried by or on behalf of the Association shall occur and the proceeds payable thereunder shall be reduced by reason of insurance carried by any Owner, such 305
60 Owner shall assign the proceeds of such insurance carried by him or her to the Association, to the extent of such reduction, for application by the Board to the same purposes as the reduced proceeds are to be applied.
9.4 Notice of Expiration Requirements.
If available, each of the policies of insurance maintained by the Association shall contain a provision that said policy shall not be canceled, terminated, materially modified or allowed to expire by its terms, without ten (10) days’ prior written notice to the Board and Declarant, and to each Owner and Beneficiary, insurer and guarantor of a first Mortgage, and every other Person in interest. In addition, fidelity bonds shall provide that they may not be canceled or substantially modified without ten (10) days’ prior written notice to any insurance trustee named pursuant to Section 9.6 and to each FNMA servicer.
9.5 Insurance Premiums.
Insurance premiums for any blanket insurance coverage obtained by the Association and any other insurance deemed necessary by the Board of Directors shall be a Common Expense to be included in the Annual Assessments levied by the Association and collected from the Owners. That portion of the Annual Assessments necessary for the required insurance premiums shall be separately accounted for by the Association and shall be used solely for the payment of premiums of required insurance as such premiums become due.
9.6 Trustee for Policies.
The Association, acting through its Board of Directors, is hereby appointed and shall be deemed trustee of the interests of all named insureds under policies of insurance purchased and maintained by the Association. Unless the applicable insurance policy provides for a different procedure for the filing of claims, all claims made under such policy shall be sent to the insurance carrier or agent, as applicable, by certified mail and be clearly identified as a claim. A record of all claims made shall be kept by the Association. All insurance proceeds under any such policies as provided for in Section 9.1 above shall be paid to the Board of Directors as trustees. The Board shall have full power to receive and to acknowledge receipt of the proceeds and to deal therewith as provided herein. Insurance proceeds shall be used by the Association for the repair or replacement of the property for which the insurance was carried or otherwise disposed of as provided in Article X of this Declaration. The Board is hereby granted the authority to negotiate loss settlements with the appropriate insurance carriers, with participation, to the extent they desire, of first Mortgagees within ten (10) days of receipt of notice of any damage or destruction as provided in Article X of this Declaration. Any two (2) officers of the Association may sign a loss claim form and release form in connection with the settlement of a loss claim, and such signatures shall be binding on all the named insureds. Notwithstanding the foregoing, there may be named as an insured, a representative chosen by the Board, including a trustee with whom the Association may enter into an insurance trust agreement or any successor to such trustee, who shall have exclusive authority to negotiate losses under any policy providing property or liability insurance and to perform such other functions necessary to accomplish this purpose. 306
61 9.7 Actions as Trustee.
Except as otherwise specifically provided in this Declaration, the Board, acting on behalf of the Association and all Owners, shall have the exclusive right to bind such parties in respect to all matters affecting insurance carried by the Association, the settlement of a loss claim, and the surrender, cancellation, and modification of all such insurance, in a manner satisfactory to Beneficiaries of seventy-five percent (75%) of the first Mortgages held by first Mortgagees.
Duplicate originals or certificates of all policies of fire and casualty insurance maintained by the Association and of all renewals thereof, together with proof of payment of premiums, shall be delivered by the Association to all Owners and Mortgagees who have requested the same in writing.
9.8 Annual Insurance Review.
The Board shall review the insurance carried by or on behalf of the Association at least annually, for the purpose of determining the amount of the casualty and fire insurance referred to in Section 9.1 above. If economically feasible, the Board shall obtain a current appraisal of the full replacement value of the Improvements on the Property except for foundations and footings, without deduction for depreciation, from a qualified independent insurance appraiser, prior to each such annual review.
The Board shall, upon issuance or renewal of the Association policy of public liability insurance, but no less than annually, notify its Members as to the amount and type of liability insurance carried by the Association, and it shall accompany this notification with statements to the effect that the Association is or is not insured to the levels specified by California Civil Code § 5805 (or any successor or replacement statute), and that if not so insured, Owners may be individually liable for the entire amount of a judgment arising solely as a result of an act or omission occurring on the Common Property, and if the Association is insured to the levels specified in said Section, then Owners may be individually liable only for their proportional share of assessments levied to pay the amount of any judgment which exceeds the limits of the Association’s liability insurance.
9.9 Required Waiver.
All policies of physical damage insurance shall provide, if reasonably possible, for waiver of the following rights, to the extent that the respective insurers would have the rights without such waivers:
(a) subrogation of claims against the Owners and tenants of the Owners;
(b) any defense based upon coinsurance;
(c) any right of setoff, counterclaim, apportionment, proration or contribution by reason of other insurance not carried by the Association; (d) any invalidity, other adverse effect or defense on account of any breach of warranty or condition caused by the Association, any Owner or any tenant of any 307
62 Owner, or arising from any act, neglect, or omission of any named insured or the respective agents, contractors and employees of any insured;
(e) any right of the insurer to repair, rebuild or replace, and, if the Improvement is not repaired, rebuilt or replaced following loss, any right to pay under the insurance an amount less than the replacement value of the Improvements insured; (f) notice of the assignment of any Owner of his or her interest in the insurance by virtue of a conveyance of any Condominium; (g) any right to require any assignment of any Mortgage to the insurer; (h) any denial of an Owner’s claim because of negligent acts by the Association or other Owners; and
(i) prejudice of insurance by any acts or omissions of Owners that are not under the Association’s control.
ARTICLE X
10. Destruction of Improvements.
10.1 Restoration of the Property.
Except as otherwise provided in this Declaration, in the event of any destruction of any portion of the Property, the repair or replacement of which is the responsibility of the Association, it shall be the duty of the Association to restore and repair the same to its former condition, as promptly as practical. The proceeds of any insurance maintained pursuant to Article IX hereof for reconstruction or repair of the Property shall be used for such purpose, unless otherwise provided herein. The Board shall be authorized to have prepared the necessary documents to effectuate such reconstruction as promptly as practical. The Property shall be reconstructed or rebuilt substantially in accordance with the Condominium Plan and the original construction plans if they are available, unless changes recommended by the Architectural Committee have been approved in writing by sixty-seven percent (67%) of the Owners and by the Beneficiaries of fifty-one percent (51%) of first Mortgages upon the Condominiums, provided, however, until such time as Declarant’s Class B Membership is terminated, any changes recommended by the Architectural Committee must also be approved by Declarant’s First Mortgagee, in addition to the approval of the Owners and the Beneficiaries. If the amount available from the proceeds of such insurance policies for such restoration and repair is at least eighty-five percent (85%) of the estimated cost of restoration and repair, a Reconstruction Assessment shall be levied by the Board of Directors to provide the necessary funds for such reconstruction, over and above the amount of any insurance proceeds available for such purpose. If the amount available from the proceeds of such insurance policies for such restoration and repair is less than eighty-five percent (85%) of the estimated cost of restoration and repair, the Board may levy a Reconstruction Assessment and proceed with the restoration and repair only if both of the following conditions (“Conditions to Reconstruction”) have first been satisfied: (a) the levy of a Reconstruction Assessment to pay the costs of restoration and repair of the Property is approved by the affirmative vote or written consent of sixty-seven percent (67%) of the Owners and by the 308
63 written consent of the Beneficiaries of fifty-one percent (51%) of the first Mortgages on the Condominiums in the Project; and (b) within six (6) months after the date on which the destruction occurred, the Board Records a certificate of the resolution authorizing the restoration and repair (“Reconstruction Certificate”). If either of the Conditions to Reconstruction does not occur following a destruction for which insurance proceeds available for restoration and repair are less than eighty-five percent (85%) of the estimated cost of restoration and repair, it shall be conclusively presumed that the Owners have determined not to proceed with restoration and repair and not to allow the Board to levy a Reconstruction Assessment, in which case the Owners shall proceed as provided in Section 10.2 below.
10.2 Sale of Property and Right to Partition.
No Owner shall have the right to partition of his or her interest in the Condominium and there shall be no judicial partition of the Project, or any part thereof, except as provided in § 4610(b) of the California Civil Code, as amended, or in any successor statute. For purposes of Subsection 4 of said § 4610(b), partition may occur only if all of the following conditions are satisfied: (a) either or both of the Conditions to Reconstruction described in Section 10.1 above have failed to occur; and (b) restoration or repair of the Project is not actually occurring; and (c) the Owners of sixty-seven percent (67%) of the Condominiums in the Project approve the partition by vote or written consent. In such event, the Association, acting through a majority of the Board, shall prepare, execute and Record, as promptly as practical, a certificate stating that a majority of the Board may properly exercise an irrevocable power of attorney to sell the Project for the benefit of the Owners, and such other documents and instruments as may be necessary for the Association to consummate the sale of the Property at the highest and best price obtainable, either in its damaged condition, or after damaged structures have been razed. Such certificate shall be conclusive evidence of such authority for any Person relying thereon in good faith. The net proceeds of such sale and the proceeds of any insurance carried by the Association shall be divided proportionately among the Owners, such proportions to be determined in accordance with the relative appraised fair market valuation of the Condominiums as of a date immediately prior to such destruction (or condemnation), expressed as percentages, and computed by dividing such appraised valuation of each Condominium by the total of such appraised valuations of all Condominiums in the Project. For purposes of calculating the portion of the sale and insurance proceeds or condemnation proceeds allocable to Declarant, the value of the Condominiums owned by Declarant shall include the value of Declarant’s right to construct Condominiums which were not yet built as of the date of such destruction or condemnation and the value of the undivided interests in the Common Area which would be appurtenant to such Condominiums. The Board is hereby authorized to hire one (1) or more appraisers for such purpose and the cost of such appraisals shall be a Common Expense of the Association. Notwithstanding the foregoing, the balance then due on any valid encumbrance of record shall be first paid in order of priority, before the distribution of any proceeds to an Owner whose Condominium is so encumbered. Nothing herein shall be deemed to prevent partition of a co-tenancy in any Condominium. Except as provided above, each Owner and the successors of each Owner, whether by deed, gift, devise, or by operation of law, for their own benefit and for the benefit of all other Owners, specifically waive and abandon all rights, interests and causes of action for a judicial partition of the tenancy in common ownership of the Project and do further covenant that no action for such judicial partition shall be instituted, prosecuted or reduced to judgment. In the event of a total or partial destruction of the Project and a decision not to rebuild as described above, the Association shall remove debris 309
64 from the affected portion of the Project and such portion of the Project shall be made as safe and attractive as reasonably possible.
10.3 Interior Damage.
With the exception of any casualty or damage insured against by the Association pursuant to Section 9.1 of this Declaration, restoration and repair of any damage to the interior of any individual Unit, including without limitation all fixtures, cabinets and improvements therein, together with restoration and repair of all interior paint, wall coverings and floor coverings, shall be made by and at the individual expense of the Owner of the Unit so damaged. In the event of a determination to rebuild the Property after partial or total destruction, as provided in this Article X, such interior repair and restoration shall be completed as promptly as practical and in a lawful and workmanlike manner, and in accordance with plans approved by the Architectural Committee to the extent such approval is required under Article IV above. Nothing within this Section 10.3 shall limit the rights of any one Owner against another Owner for any damage to the interior of a Unit caused by such other Owner.
10.4 Notice to Owners and Listed Mortgagees.
The Board, immediately upon having knowledge of any damage or destruction affecting a material portion of the Common Property, shall promptly notify all Owners, Beneficiaries, insurers and guarantors of first Mortgages on Condominiums in the Project. The Board, immediately upon having knowledge of any damage or destruction affecting a Condominium, shall promptly notify any Beneficiary, insurer or guarantor of any Mortgage encumbering such Condominium.
ARTICLE XI
11. Eminent Domain.
The term “taking” as used in this Article shall mean condemnation by exercise of the power of eminent domain or by sale under threat of the exercise of the power of eminent domain. The Board shall represent the Owners in any proceedings, negotiations, settlements, or agreements regarding takings. All takings proceeds shall be payable to the Association for the benefit of the Unit Owners and their Mortgagees, and shall be distributed to such Owners and Mortgagees as provided in this Article XI.
11.1 Project Condemnation.
If there is a taking of an interest in all or part of the Property such that the ownership, operation and use of the Property in accordance with the provisions of this Declaration is substantially and adversely affected, and within one hundred twenty (120) days after the effective date of the taking the Owners of Units (a) not taken, or (b) only partially taken but capable of being restored to at least ninety-five percent (95%) of their floor area and to substantially their condition prior to the taking (collectively, the “Remaining Units”) do not by affirmative vote of at least one-third (1/3rd) of their voting power approve the continuation of the Project and the repair, restoration and replacement to the extent feasible of the Common Property and the Remaining Units, then the Board shall proceed with the sale of that portion of the Property which was not 310
65 taken and distribute the net proceeds of such sale after deducting any incidental fees and expenses, in the same proportion and manner as provided in Section 10.2.
11.2 Condemnation of Common Property.
If there is a taking of all or any portion of the Common Property, or any interest therein, other than the taking of an undivided interest therein taken as a result of the taking of a Condominium, then the award in condemnation shall be paid to the Association and shall be deposited in the Operating Fund.
11.3 Condemnation of Condominiums.
If there is a taking of a Condominium, the award in condemnation shall be paid to the Owner of the Condominium; provided, however, that such award shall first be applied to the balance then due on any Mortgages encumbering such Owner’s Condominium, in order of priority.
11.4 Condemnation of Portions of Units.
(a) Minor Takings Within Limits. If (i) there is a taking of a portion of one or more Units such that the intended use of the Units as residential dwellings is not substantially and adversely affected, and (ii) restoration of such Units can be accomplished at a cost less than or equal to the sum of (A) the amount of the condemnation awards for such takings plus (B) any amounts the Owners of the taken Units wish to contribute to restoration plus (C) an amount less than or equal to five percent (5%) of the Budgeted gross expenses of the Association for that Fiscal Year (collectively, the “Allowable Cost”), then the Board shall contract for such restoration and levy a Reconstruction Assessment in an amount equal to the Allowable Cost minus the amount of the condemnation awards and Owners’ contributions, and the condemnation awards, Owners’ contributions and Reconstruction Assessment shall be applied to such restoration. If the restoration is accomplished at a cost less than the amount of the condemnation awards, then that portion of the condemnation awards in excess of the restoration costs shall be paid to the Owners of the partially taken Units in proportion to the decreases in the fair market values of their Condominiums; provided, however, that such awards shall first be applied to the balance then due on any Mortgages encumbering such Owners’ Condominiums, in order of priority.
(b) Minor Takings Exceeding Limits. If (i) there is a taking of a portion of one or more Units such that the intended use of the Units as residential dwellings is not substantially and adversely affected, and (ii) restoration cannot be accomplished at a cost less than or equal to the Allowable Cost, then the Board shall call a Special Meeting of the Members. If more than fifty percent (50%) of the Members are represented at such Special Meeting, either in person or by proxy, and a majority of the votes cast at such Special Meeting are in favor of levying a Reconstruction Assessment in an amount equal to the restoration costs minus the sum of the amount of the condemnation awards and the amounts the Owners of the taken Units wish to contribute to such restoration, then the Board shall contract for such restoration and levy a Reconstruction Assessment, and the condemnation awards, Owners’ contributions and Reconstruction Assessment shall be applied to such restoration. 311
66 (c) Major Takings. If the requisite approval is not obtained at the Special Meeting referred to in Section 11.4(b), or if there is a taking of a portion of one or more Units such that the Units are not capable of being restored in such a manner that the intended use of the Units as residential dwellings is not substantially and adversely affected, then the award in condemnation shall be paid to the Owners of the taken Units; provided, however, that such award shall first be applied to the balance then due on any Mortgages encumbering such Owner’s Condominium, in order of priority. The Board shall have the remaining portions of the taken Units razed. The remaining portions of the taken Units shall become part of the Common Area.
The Owners of such taken Units in any Phase of Development, by acceptance of the award allotted to them in taking proceedings, hereby relinquish to the other Owners in such Phase of Development, on the basis of their relative ownership of the Common Area therein, such Owners’ undivided interest in the Common Area. Each Owner relinquishing his or her interest in the Common Area pursuant to this Section shall, at the request of the Board and at the expense of the Association, execute and acknowledge such deeds and other instruments which the Board deems necessary or convenient to evidence such relinquishment. Each Owner of a taken Unit or Residence shall not be liable for assessments under this Declaration which accrue on or after the date such Owner accepts his or her condemnation award.
11.5 Portions of Awards in Condemnation Not Compensatory for Value of Real Property.
Those portions of awards in condemnation which do not directly compensate Owners for takings of real property (e.g., awards for takings of personal property, relocation expenses, moving expenses, or other allowances of a similar nature intended to facilitate relocation) shall be paid to the Owners whose personal property is taken, or whose relocation is intended to be facilitated.
11.6 Notice of Owners and Mortgagees.
The Board, upon learning of any taking affecting a material portion of the Property, or any threat thereof, shall promptly notify all Owners and those Beneficiaries, insurers and guarantors of Mortgages on Condominiums in the Project. The Board, upon learning of any taking affecting a Condominium, or any threat thereof, shall promptly notify any Beneficiary, insurer or guarantor of a Mortgage encumbering such Condominium.
ARTICLE XII
12. Rights of Mortgagees.
Notwithstanding any other provision of this Declaration, no amendment or violation of this Declaration shall operate to impair, defeat or render invalid the rights of the Beneficiary under any Deed of Trust upon a Condominium made in good faith and for value, provided that after the foreclosure of any such Deed of Trust such Condominium shall remain subject to this Declaration, as amended. For purposes of this Declaration, “first Mortgage” shall mean a Mortgage with first priority over other Mortgages or Deeds of Trust on a Condominium, and “first Mortgagee” shall mean the Beneficiary of a first Mortgage. For purposes of any provision of this Declaration or the other Restrictions which require the vote or approval of a 312
67 specified percentage of first Mortgagees, such vote approval shall be determined based upon one (1) vote for each Condominium encumbered by each such first Mortgage. To the extent the following provisions conflict with any other provisions of this Declaration or any other of the Restrictions, these restrictions shall control:
(a) Mortgagees, and insurers or guarantors of first Mortgages, shall be entitled to timely written notice of:
(1) any condemnation or any casualty loss which affects a material portion of the Project or any Condominium on which there is a first Mortgage held, insured, or guaranteed by such Mortgagee insurer or guarantor, as applicable; (2) any default in performance of obligations under the Project Documents or delinquency in the payment of Assessments or charges owed by an Owner of a Condominium subject to a first Mortgage held, insured or guaranteed by such Mortgagee, insurer or guarantor, which remains uncured for a period of sixty (60) days; (3) any lapse, cancellation or material modification of any insurance policy or fidelity bond maintained by the Association; and (4) any proposed action under this Declaration which would require the consent of a specified percentage of first Mortgagees. (b) Every Owner, including every first Mortgagee of a Mortgage encumbering any Condominium who obtains title to such Condominium pursuant to the remedies provided in such Mortgage, or pursuant to foreclosure of the Mortgage, or by deed (or assignment) in lieu of foreclosure, shall be exempt from any “right of first refusal” created or purported to be created by the Restrictions.
(c) Each first Mortgagee of a Mortgage encumbering any
Condominium, which obtains title to such Condominium, pursuant to judicial foreclosure or the powers provided in such Mortgage, shall take title to such Condominium free and clear of any claims for unpaid assessments or charges against such Condominium which accrued prior to the time such Mortgagee acquires title to such Condominium in accordance with Section 5.11. (d) Unless at least sixty-seven percent (67%) of the first Mortgagees or sixty-seven percent (67%) of the Owners (other than Declarant) have given their prior written approval, neither the Association nor the Owners shall:
(1) by act or omission seek to abandon or terminate the Project; or
(2) change the method of determining the obligations,
assessment dues or other charges which may be levied against any Owner or change the pro rata interest or obligations of any Condominium for purposes of levying assessments or charges or allocating distributions of hazard insurance proceeds or condemnation awards or for determining the pro rata share of ownership of each Owner in the Common Area unless the change is due to the annexation of additional phases as authorized in this Declaration; or 313
68 (3) partition or subdivide any Unit; or
(4) by act or omission, seek to abandon, partition, subdivide, encumber, sell or transfer the Common Property unless due to the annexation of additional phases as authorized in this Declaration. (The granting of easements for public utilities or for other purposes consistent with the intended use of the Common Property under this Declaration, and the granting of exclusive easements to Owners over portions of the Common Property to conform the boundaries of the Common Property to the as-built location of Improvements installed or constructed by Declarant shall not be deemed a transfer within the meaning of this clause); or (5) use hazard insurance proceeds for losses to any Property (i.e., Improvements to the Units or Common Property) for other than the repair, replacement or reconstruction of such Property, except as provided by statute in case of substantial loss to the Units or Common Property; or
(6) by act or omission change, waive or abandon the provisions of this Declaration, or the enforcement thereof, pertaining to the architectural design or control of the exterior appearance of Improvements on the Property or the maintenance of the Common Property, or any walks, fences, driveways, or landscaping in the Project; or (7) fail to maintain or cause to be maintained fire and extended coverage on insurable Common Property as provided in Article IX of this Declaration. (e) All Mortgagees, insurers and guarantors of first Mortgages shall have the right to (1) examine the books and records of the Association, including current copies of all the Restrictions and financial statements, during normal business hours, (2) require the Association to submit an annual audited financial statement for the preceding Fiscal Year within one hundred twenty (120) days of the end of the Association’s Fiscal Year, if one is available, or have one prepared at the expense of the requesting entity if such statement is not otherwise prepared by the Association, (3) receive written notice of all meetings of the Owners, and (4) designate in writing a representative to attend all such meetings. All Owners shall also have the right to examine the books and records of the Association, including current copies of all the Restrictions and financial statements, during normal business hours. (f) All Mortgagees, insurers and guarantors of first Mortgages, shall be given sixty (60) days’ written notice prior to the effective date of (1) any proposed material amendment to the Restrictions or Condominium Plans; (2) any termination of an agreement for professional management of the Property following any decision of the Owners to assume selfmanagement of the Project; and (3) any proposed termination of the Property as a condominium project.
(g) The Reserve Fund described in Article V of this Declaration must be funded by regular scheduled monthly, quarterly, semiannual or annual payments rather than by large special assessments.
(h) The Board shall secure and cause to be maintained in force at all times a fidelity bond for any Person handling funds of the Association, including, but not limited to, employees of the professional Manager.
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69 (i) No provision of the Restrictions shall be construed or applied to give any Owner, or any other party, priority over any rights of the Mortgagees of a first Mortgage in the case of a distribution to Owners of insurance proceeds or condemnation awards for losses to or taking of Condominiums and/or Common Property.
(j) In addition to the foregoing, the Board may enter into such contracts or agreements on behalf of the Association as are required in order to satisfy the guidelines of VA, FHA, FHLMC, FNMA or GNMA or any similar entity, so as to allow for the purchase, guaranty or insurance, as the case may be, by such entities of first Mortgages encumbering Condominiums. Each Owner hereby agrees that it will benefit the Association and the Membership of the Association, as a class of potential Mortgage borrowers and potential sellers of their residential Condominiums, if such agencies approve the Property as a qualifying subdivision under their respective policies, rules and regulations, as adopted from time to time. (k) Each Owner hereby authorizes the first Mortgagee of a first Mortgage on his or her Condominium to furnish information to the Board concerning the status of such first Mortgage and the loan which it secures.
(l) First Mortgagees may require the Association to use professional management upon the approval of the majority of the Mortgagees of first Mortgages in the Project. When professional management has been previously required by the Restrictions or the majority of Mortgagees, insurers, or guarantors of first Mortgages, any decision to establish selfmanagement by the Association shall require the approval of sixty-seven percent (67%) of the voting power of the Association and fifty-one percent (51%) of the Mortgagees of first Mortgages of Condominiums in the Project.
(m) All intended Improvements in any Phase of Development shall be substantially completed or the completion of such Improvements shall be secured by a bond or other arrangement acceptable to the DRE prior to the first Close of Escrow for the sale of a Condominium in such Phase of Development.
(n) First Mortgagees may, jointly or singly, pay taxes or other charges which are in default and which may or have become a charge against any Common Property and may pay any overdue premiums on hazard insurance policies, or secure new hazard insurance coverage on the lapse of a policy, for Common Property, and First Mortgagees making such payments shall be owed immediate reimbursement therefor from the Association. (o) It is the intent of Declarant that this Declaration and the Articles and Bylaws of the Association, and the Project in general, shall now and in the future meet all requirements necessary to purchase, guarantee, insure, or subsidize any mortgage of a Condominium in the Project by FNMA, FHLMC, GNMA, FHA and VA. The Association and each Owner shall take any action or shall adopt any resolutions required by Declarant or the Board to conform this Declaration or the Project to the requirements of any of these entities or agencies.
(p) VA financing requirement: Declarant shall relinquish all special rights, expressed or implied, through which the Declarant may directly or indirectly control, direct, 315
70 modify, or veto any action of the Association, its executive board, or a majority of unit owners, and control of the Association shall pass to the Owners of units within the Project, not later than the earlier of the following:
(i) 120 days after the date by which 75 percent of the Units in the Project have been conveyed to unit purchasers; or
(ii) The 5th anniversary of the first conveyance to a unit purchaser.
ARTICLE XIII
13. Duration and Amendment.
13.1 Duration.
This Declaration shall run with the land and shall continue in full force and effect until a Declaration of Termination is Recorded, satisfying the requirements of an amendment to this Declaration as set forth in Section 13.2. There shall be no severance by sale, conveyance, encumbrance or hypothecation of an interest in any Unit from the concomitant Membership in the Association, as long as this Declaration shall continue in full force and effect. The provisions of this Article are subject to the provisions of Sections 10.2 and 11.4 of this Declaration.
13.2 Amendment.
(a) Notice of the subject matter of a proposed amendment to this Declaration in reasonably detailed form shall be included in the notice of any meeting or election of the Association at which a proposed amendment is to be considered. Such notice of meeting or election shall be given to each Member of the Association at least twenty-five (25) days in advance, if the meeting is for an amendment of a material or extraordinary nature (as defined by VA in the VA Pamphlet 26-7, as such Pamphlet is revised from time to time), and ten (10) days in the case of a meeting for other purposes, pursuant to the Bylaws. Such notice must (i) state the purpose of the meeting and contains a summary of any material amendments or extraordinary actions proposed; and (ii) contains a copy of the proxy that can be cast in lieu of attendance at the meeting. The resolution shall be adopted by the vote, in person or by proxy, or affirmative written ballot of Members representing not less than (i) sixty-seven percent (67%) of the voting power of the Association, and (ii) sixty-seven percent (67%) of the voting power of the Association residing in Members other than Declarant, provided that the specified percentage of the voting power of the Association necessary to amend a specified Section or provision of this Declaration shall not be less than the percentage of affirmative votes prescribed for action to be taken under that Section or provision.
(b) In addition to the required notice and consent of Members and Declarant provided above, the Mortgagees of fifty-one percent (51%) of the first Mortgages on all the Condominiums in the Project must approve any amendment to this Declaration which is of a material adverse nature to Mortgagees, including, without limitation, the following:
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71 (1) Any amendment which affects or purports to affect the validity or priority of encumbrances or the rights or protection granted to Mortgagees, insurers or guarantors of first Mortgages as provided in Articles V, IX, X, XI, XII and XIII hereof. (2) Any amendment which would necessitate an encumbrancer after it has acquired a Condominium through foreclosure to pay more than its proportionate share of any unpaid assessment or assessments accruing after such foreclosure. (3) Any amendment which would or could result in an
encumbrance being canceled by forfeiture, or in a Condominium not being separately assessed for tax purposes.
(4) Any amendment relating to the insurance provisions as set out in Article IX hereof, or to the application of insurance proceeds as set out in Article X hereof, or to the disposition of any money received in any taking under condemnation proceedings. (5) Any amendment which would or could result in partition or subdivision of a Condominium Unit in any manner inconsistent with the provisions of this Declaration.
(6) Any amendment which would subject any Owner to a right of first refusal or other such restriction, if such Condominium is proposed to be sold, transferred, or otherwise conveyed.
(7) Any amendment concerning:
(A) The weight of any Owner’s voting rights;
(B) Rights to use the Common Property;
(C) Reductions in reserves for or responsibility for
maintenance, repair and replacement of the Common Property; (D) Boundaries of any Unit;
(E) Owners’ interests in the Common Property;
(F) Convertibility of Common Property into Units or
Units into Common Property;
(G) Leasing of Units;
(H) Establishment of self-management by the
Association where professional management has been required by any Mortgagee, insurer or guarantor of a first Mortgage;
(I) Rights concerning expansion or contraction of the
Project, or the addition, annexation or withdrawal of real property to or from the Project; 317
72 (J) Increases in assessments that raise the previously assessed amount by more than 25%, assessment liens, or the priority or subordination of such liens; or
(K) Any provisions that expressly benefit Mortgage
holders, insurers, or guarantors.
(c) Notwithstanding anything to the contrary contained in this Declaration, Sections 2.2(b), 2.2(c), 2.2(d) and 15.4 of this Declaration shall not be amended without the vote or approval by written ballot of at least (a) ninety percent (90%) of the voting power of the Members of the Association other than Declarant, and (b) at least ninety percent (90%) of the Mortgagees.
(d) Termination of this Declaration shall require approval by the Members as provided in subsection (a) of this Section 13.2. No such termination shall be effective unless it is also approved in advance either by fifty-one percent (51%) of the Mortgagees of the first Mortgages on all of the Condominiums in the Project (if said termination is proposed by reason of the substantial destruction or condemnation of the Project) or by sixtyseven percent (67%) of such Mortgagees (if said termination is for reasons other than such substantial destruction or condemnation). Any distribution of excess funds held by the Association upon the termination of the Project shall be made equally to each Owner. (e) Each Mortgagee of a first Mortgage on a Condominium in the Project which receives proper written notice of a proposed amendment or termination of this Declaration by certified or registered mail with a return receipt requested shall be deemed to have approved the amendment or termination if the Mortgagee fails to submit a response to the notice within sixty (60) days after the Mortgagee receives the notice. (f) A copy of each amendment shall be certified by at least two (2) officers of the Association, and the amendment shall be effective when a Certificate of Amendment is Recorded. The Certificate, signed and sworn to by two (2) officers of the Association, stating that the requisite number of Owners and Mortgagees have either voted for or consented in writing to any amendment adopted as provided above, when Recorded, shall be conclusive evidence of that fact. The Association shall maintain in its files the record of all such votes or written consents for a period of at least four (4) years. (g) Notwithstanding any other provision of this Section 13.2, at any time prior to the first Close of Escrow for the sale of a Condominium within Phase 1, Declarant may unilaterally amend or terminate this Declaration by Recording a written instrument which effects the amendment or termination and is signed and acknowledged by Declarant. (h) Notwithstanding any other provision of this Declaration, for so long as Declarant owns any portion of the Property or Unit thereon, Declarant may, in its sole discretion, unilaterally amend this Declaration by Recording a written instrument signed by Declarant without the consent of the Association or any other Owner, provided that such amendment is made (1) to correct a typographical error or internal inconsistency herein, and such amendment does not adversely affect the interests of any Owner without such Owner’s written 318
73 consent, or (2) to conform this Declaration to the requirements of the VA, FHA, DRE, FNMA, GNMA or FHLMC then in effect or to any City requirements and/or applicable statutory legal requirements.
13.3 Protection of Declarant.
The prior written approval of Declarant, as developer of the Property, will be required before any amendment which would impair or diminish the rights of Declarant to annex any portion of the Annexable Property, or complete the Property or sell or lease Condominiums therein in accordance with this Declaration shall become effective. Notwithstanding any other provisions of the Restrictions, until such time as Declarant no longer owns any Condominiums in the Property or the Annexable Territory, the following actions, before being undertaken by the Association, shall first be approved in writing by Declarant:
(a) Any amendment or action requiring the approval of first Mortgagees pursuant to this Declaration, including without limitation all amendments and actions specified in Section 13.2;
(b) The annexation to the Property of real property other than the Annexable Territory pursuant to Section 16.2;
(c) The levy of a Capital Improvement Assessment for the construction of new facilities not constructed on the Common Property by Declarant; (d) Subject to Section 5.5 regarding limitations on Annual Assessment increases, any significant reduction of Association maintenance or other services; or
(e) Any modification of the rights reserved and granted to Declarant herein, including, without limitation, those rights set forth in Section 6.1, Article VII, Article XV and Article XVI.
ARTICLE XIV
14. Enforcement of Certain Bonded Obligations.
14.1 Consideration by Board of Directors.
If (1) the Improvements to be located on the Common Property in any Phase of Development are not completed prior to the issuance of a Final Subdivision Public Report for that Phase by the DRE for the sale of Condominiums in the Project, and (2) the Association is obligee under a bond or other arrangement (“Bond”) required by the DRE to secure performance of the commitment of Declarant to complete such Improvements, the Board of Directors of the Association shall consider and vote on the question of action by the Association to enforce the obligations under the Bond, with respect to any such Improvement for which a Notice of Completion has not been filed within sixty (60) days after the completion date specified for that Improvement in the Planned Construction Statement appended to the Bond. If the Association has given an extension in writing for the completion of any Improvement on the Common Property, 319
74 the Board shall be directed to consider and vote on the aforesaid question (if a Notice of Completion has not been filed), within thirty (30) days after the expiration of the extension.
14.2 Consideration by the Members.
A special meeting of Members, for the purpose of voting to override a decision by the Board not to initiate action to enforce the obligations under the Bond or on the failure of the Board to consider and vote on the question, shall be held no fewer than thirty-five (35) days nor more than forty-five (45) days after receipt by the Board of a petition for such a meeting signed by Members representing five percent (5%) of the total voting power of the Association residing in Members other than Declarant. A vote at such meeting to take action to enforce the obligations under the Bond by Members representing a majority of the total voting power of the Association residing in Members other than Declarant shall be deemed to be the decision of the Association, and the Board shall thereafter implement this decision by initiating and pursuing appropriate action in the name of the Association.
ARTICLE XV
15. General Provisions.
15.1 Legal Proceedings; Arbitration; Actions Arising From Restrictions.
Failure to strictly comply with any of the terms of the Restrictions by an Owner, his or her Family, guests, employees, contractors, invitees or tenants, shall be grounds for relief which may include, without limitation, an action to recover sums due for damages, injunctive relief, foreclosure of any lien, or any combination thereof. Failure to enforce any provision hereof shall not constitute a waiver of the right to enforce that provision, or any other provision hereof.
The Board, any Owner (not at the time in default hereunder), or Declarant (so long as Declarant is an Owner) shall be entitled to bring an action for damages against any defaulting Owner, and in addition may enjoin any violation of this Declaration. Any judgment rendered in any action or proceeding pursuant to this Declaration shall include a sum for attorneys’ fees in such amount as the Court may deem reasonable, in favor of the prevailing party, as well as the amount of any delinquent payment, late payment fee, costs of collection and court costs, and interest thereon.
Each remedy provided for in this Declaration shall be cumulative and not exclusive or exhaustive.
Each Owner shall have a right of action against the Association for the failure by the Association to comply with the Restrictions.
Notwithstanding anything above to the contrary, any action or claim for enforcement of the Restrictions shall be subject to the following provisions:
(a) Claims for Declaratory Relief or Enforcement of Project Documents: Prior to the filing of an enforcement action for declaratory, injunctive, or writ relief in conjunction with a claim for monetary damages not in excess of Five Thousand Dollars ($5,000), the Board, or any Owner who seeks such relief, shall first endeavor to submit the matter to alternative dispute resolution in compliance with the provisions of California Civil Code §§ 5925 – 5960 (or any successor or replacement statutes). 320
75 (b) The Board shall comply with the requirements of California Civil Code § 5965 (or any successor or replacement statute) by providing Members of the Association annually with a summary of the provisions of Article 3 (commencing with California Civil Code § 5925) of Chapter 10 (Division 4, Part 5) of the California Civil Code (or any successor or replacement statute), including the following language:
“Failure of a Member of the Association to comply with the alternative dispute resolution requirements of § 5930 of the California Civil Code may result in the loss of your right to sue the Association or another Member of the Association regarding enforcement of the Governing Documents or the applicable law.”
15.2 Notification of Construction Claims.
(a) Before the Association or any Owner commences an action for damages against Declarant, Declarant’s general contractor or broker, or either of their agents and employees, based upon a claim for defects in the design or construction of the “Common Interest Development” as defined in California Civil Code § 4100 (or any successor or replacement statute), or any portion thereof, all of the requirements of subsections (b), (c) and (d) below shall be met:
(b) A resolution authorizing the Board to commence an action must be approved by Members representing more than sixty-seven percent (67%) of the voting power of the Association. The Board shall provide notice by first-class mail to all Members of a special meeting of Members, for the purpose of voting to authorize the Board to initiate action based upon a claim for defects in the design or construction of the Common Interest Development or any portion thereof, not less than thirty (30) nor more than sixty (60) days prior to the date of such a meeting. The notice to the Members shall include all of the following information:
(1) A description of the disputes;
(2) A certification from an engineer licensed in the State of California that a repair issue exists, along with a description of the scope of work necessary to cure such repair issue;
(3) The estimated cost to repair such repair issue;
(4) The name and professional background of the attorney(s) the Association may want to retain to pursue the claim against Declarant and a description of the relationship between such attorney and any members of the Board (if any); (5) Estimated attorneys’ fees, expert fees and other costs necessary to pursue the claim against Declarant and the source of funds which will be used to pay such fees and expenses;
(6) The estimated time necessary to conclude the action against Declarant;
321
76 (7) Potential benefits and adverse consequences of a civil action, including among other things, potential effects on property values and any disclosure regarding such action which may be required to be disclosed to lenders and prospective purchasers of Units in the Project;
(8) How the action will be funded;
(9) Offers of settlement; and
(10) How proceeds from the action or settlement of such action would be used.
(c) All applicable requirements of California Civil Code §§ 6000 and 6150, as such Sections may be amended from time to time, or any successor statute thereto shall be satisfied (notwithstanding the fact that said § 6000 does not by its terms apply to Owners), including, without limitation, all notice and dispute resolution requirements. (d) The Association shall finance any legal proceeding with monies that are specifically collected for same and may not borrow money or use the reserve funds or other monies collected for specific Association obligations other than legal fees.
15.3 Notice to Members of Other Civil Action Against Declarant. (a) Not later than thirty (30) days prior to the filing of any civil action by the Association against the Declarant for alleged damage to the Common Property, alleged damage to the Separate Interests that the Association is obligated to maintain or repair, or alleged damage to the Separate Interests that arises out of, or is integrally related to, damage to the Common Property or Separate Interests that the Association is obligated to maintain or repair, the Board of Directors of the Association shall provide a written notice to each Member of the Association who appears on the records of the Association when the notice is provided. This notice shall specify all of the following:
(1) that a meeting will take place to discuss problems that may lead to the filing of a civil action;
(2) the options, including civil actions, that are available to address the problems; and
(3) the date, time and place of this meeting.
(b) Notwithstanding subdivision (a), if the Association has reason to believe that the applicable statute of limitations will expire before the Association files the civil action, the Association may give the notice, as described above, within thirty (30) days after the filing of the action.
322
77 15.4 Alternative Dispute Resolution.
(a) Disputes and Remedies. In addition to the notification and dispute resolution procedures set forth in Sections 15.2 and 15.3 and notwithstanding anything in the Restrictions to the contrary, it is the desire and intention of this Section to provide an expedited means of resolving any claims, disputes and disagreements which may arise between Owner or the Association and the Declarant (individually a “Declarant Party,” collectively the “Declarant Parties”) after the Close of Escrow or other conveyance of any portion of the Property by Declarant concerning the Property and/or any express or implied warranties that are not resolved pursuant to any applicable statutory dispute resolution procedures (individually referenced to herein as “Dispute” and collectively as “Disputes”). Initially, the Declarant Parties will attempt to resolve any Dispute asserted by an Owner or the Association of which it is given notice. If the Dispute cannot be resolved between the parties in this manner, it will be decided through the arbitration procedure as set forth below. Alternatively, a Declarant Party, an Owner or the Association may elect to resolve such Disputes through a small claims court proceeding. THIS PROCESS INVOLVES WAIVER OF THE RIGHT TO A JURY TRIAL. BY
EXECUTING THIS DECLARATION, DECLARANT, AND BY ACCEPTING A DEED
TO ANY PORTION OF THE PROPERTY, EACH OWNER AND THE ASSOCIATION, AGREE TO BE BOUND BY THE PROVISIONS OF THIS SECTION.
(1) Notice. Any person with a claim defined as a Dispute, above (“Claimant”), shall notify the Declarant Party in writing of the claim, which writing shall describe the nature of such claim and any proposed remedy (“Claim Notice”). (2) Right to Inspect and Right to Take Corrective Action.
Within a reasonable period after receipt of the Claim Notice, which period shall not exceed sixty (60) days, the Declarant Party and the Claimant(s) shall meet at a mutually-acceptable place within or near the Project to discuss the Dispute. At such meeting or at such other mutually agreeable time, Declarant Party and its representatives shall have full access to the property that is subject to the Dispute claim and shall have the right to conduct inspections, testing and/or destructive or invasive testing the same in a manner deemed appropriate by Declarant Party which rights shall continue until such time as the Dispute is resolved as provided in this Section. The parties to the Dispute shall negotiate in good faith in an attempt to resolve the claim. If Declarant Party elects to take any corrective action, Declarant Party and its representatives and agents shall be provided full access to the Project that is subject to the Dispute to take and complete corrective action. (3) California Civil Code §§ 6000, 6100 and 6150. Nothing contained herein shall be deemed a waiver or limitation of the provisions of California Civil Code § 6150 (or any successor or replacement statute) and Section 15.3 of the Declaration. If the Dispute is subject to the provisions of California Civil Code §§ 6000 and 6100, as they may be amended from time to time, compliance with the procedures of these Sections shall satisfy the requirements of Sections 15.4.(a)(1) and 15.4(a)(2), as applicable. With respect to any suit that would be governed by California Civil Code § 6000 (or any successor or replacement statute), and as hereafter amended, if the parties had not agreed to arbitration hereunder, the Association or any other party required to proceed under California Civil Code § 6000 (or any successor or replacement statute) as a condition to filing a complaint must do so as a condition to commencing 323
78 an arbitration. Compliance with California Civil Code § 6150 (or any successor or replacement statute) is a condition to the Association’s commencing an arbitration. (4) Mediation. If the parties to the Dispute that is not subject to California Civil Code § 6000 (or any successor or replacement statute) cannot resolve the claim pursuant to the procedures described in Section 15.4(a)(2) above (including, if applicable, California Civil Code § 6000 procedures), the matter shall be submitted to mediation pursuant to the mediation procedures adopted by the Judicial Arbitration and Mediation Services (“JAMS”) (except as such procedures are modified by the provisions of this Section) or any successor thereto or to any other entity offering mediation services that is acceptable to such parties. No person shall serve as a mediator in any Dispute in which the person has any financial or personal interest in the result of the mediation, except by the written consent of all parties to the Dispute participating in the mediation. Prior to accepting any appointment, the prospective mediator shall disclose any circumstances likely to create a presumption of bias or to prevent a prompt commencement of the mediation process. Except as provided in the Declaration of Alternative Dispute Resolution for Iron & Oak, the Association and each Owner covenants that each shall not commence any litigation against Declarant without complying with the procedures described in this Section.
(A) Position Memoranda; Pre-Mediation Conference.
Within ten (10) days of the selection of the mediator, each party to the Dispute participating in the mediation shall submit a brief memorandum setting forth its position with regard to the issues that need to be resolved. The mediator shall have the right to schedule a pre-mediation conference and all parties to the Dispute participating in the mediation shall attend unless otherwise agreed. The mediation shall be commenced within ten (10) days following the submittal of the memoranda and shall be concluded within fifteen (15) days from the commencement of the mediation unless the parties to the Dispute participating in the mediation mutually agree to extend the mediation period.
The mediation shall be held in the county in which the Project is located or such other place as is mutually acceptable to the parties to the Dispute participating in the mediation. (B) Conduct of Mediation. The mediator has discretion
to conduct the mediation in the manner in which the mediator believes is most appropriate for reaching a settlement of the Dispute. The mediator is authorized to conduct joint and separate meetings with the parties to the Dispute participating in the mediation and to make oral and written recommendations for settlement. Whenever necessary, the mediator may also obtain expert advice concerning technical aspects of the Dispute, provided the parties to the Dispute participating in the mediation agree and assume the expenses of obtaining such advice. The mediator does not have the authority to impose a settlement on the parties to the Dispute participating in the mediation. (C) Exclusion Agreement. Prior to the commencement
of the mediation session, the mediator and all parties to the Dispute participating in the mediation shall execute an agreement pursuant to California Evidence Code § 1115, et seq. (or any successor statute) in order to exclude the use of any testimony or evidence produced at the mediation in any subsequent dispute resolution forum, including, but not limited to, court proceedings, reference proceedings or arbitration hearings. Pursuant to California Evidence Code § 1115, et seq. (or any successor statute) the agreement shall specifically state that evidence of anything said or of any admission made in the course of the mediation is not admissible evidence, and disclosure of any 324
79 such evidence shall not be compelled in any civil action in which, pursuant to law, testimony can be compelled to be given. Unless the document provides otherwise, no document prepared for the purpose of, or in the course of, or pursuant to, the mediation, or copy thereof, is admissible in evidence; and disclosure of any such document shall not be compelled in any civil action in which, pursuant to law, testimony can be compelled to be given. The provisions of California Evidence Code §§ 1115 through 1128 (or any successor or replacement statutes) shall also be applicable to such mediation process.
(D) Persons Permitted at Sessions. Persons other than
the parties to the Dispute participating in the mediation, their representatives and the mediator may attend mediation sessions only with the permission of the parties to the Dispute participating in the mediation and the consent of the mediator; provided, however, that such permission and consent shall not be required to allow participation of such party’s insurer in the mediation to the extent required under such parties’ liability insurance policy. Confidential information disclosed to a mediator by such parties or by witnesses in the course of the mediation while serving in such capacity shall be confidential. There shall be no stenographic record of the mediation process. (E) Expenses. The expenses of witnesses for either side shall be paid by the party producing such witnesses. All other expenses of the mediation, including, but not limited to, the fees and costs charged by the mediator and the expenses of any witnesses or the cost of any proof or expert advice produced at the direct request of the mediator, shall be borne equally by the parties to the Dispute participating in the mediation unless they agree otherwise. Each party to the Dispute participating in the mediation shall bear its own attorneys’ fees and costs in connection with such mediation.
(5) Arbitration. Should either proceedings governed by
California Civil Code § 6000 (or any successor or replacement statute), or mediation pursuant to Section 15.4(a)(4) above not be successful in resolving any Dispute, any and all claims, controversies, breaches or disputes (each a “dispute”) by or between or among the Association, any Owner or Owners, and/or Declarant Party arising from or related to this Declaration, the Common Property, any Unit, the sale of any Unit, or any transaction related hereto, whether such dispute is based on contract, tort, statute, or equity shall be determined and resolved by the alternative dispute resolution procedures set forth below:
(A) Waiver of Trial by Judge or Jury. The dispute shall be resolved through binding arbitration. The Claimant and Declarant each gives up the right to have their respective claims and defenses decided by a judge or a jury. Instead, all claims and disputes will be decided by the arbitrator.
(B) Rules Applicable to All Cases. The arbitration will be conducted by Judicial Arbitration and Mediation Services (“JAMS”) in accordance with the JAMS rules (“JAMS Rules”) then applicable to the claims presented, as supplemented by this Section. The following supplemental rules shall apply to all arbitration proceedings and shall govern in the event of a conflict between the rules set forth below and the JAMS Rules. (i) Qualification of Arbitrators. The arbitrator
shall be neutral and impartial and either a retired judge or a member or former member of the 325
80 California State Bar with at least ten (10) years’ experience as a practicing lawyer in the area of construction law.
(ii) Appointment of Arbitrator. The arbitrator to
preside over the dispute shall be selected in accordance with the JAMS Rules, but no later than sixty (60) days after a notice of claim is filed.
(iii) Expenses. The fees and costs of the
arbitration and/or the arbitrator shall be borne equally by the parties to the arbitration; provided, however, that the fees and costs of the arbitration and/or the arbitrator ultimately shall be borne as determined by the arbitrator; provided that the arbitrator may not award against any party any expenses in excess of those that would be recoverable as costs if the dispute had been litigated to final judgment in court.
(iv) Preliminary Procedures. If state or federal
law requires the Claimant or Declarant to take steps or procedures before commencing an action in court, then the Claimant or Declarant must take such steps or follow such procedures, as the case may be, before commencing the arbitration. Nothing contained herein shall be deemed a waiver or limitation of the provisions of California Civil Code §§ 6000, 6100 or 6150 (or any successor or replacement statutes).
(v) Rules of Procedure. The arbitration shall be
administered by JAMS pursuant to its streamlined arbitration rules and procedures when the amount in controversy is Two Hundred Fifty Thousand Dollars ($250,000) or less. (vi) Participation By Other Parties. Each
Claimant and Declarant, to the extent either such party is defending a claim in the arbitration, may, if it chooses, have all necessary and appropriate parties included as parties to the arbitration. (vii) Rules of Law. The arbitrator must follow
California substantive law (including statutes of limitations) but strict conformity with the Rules of Evidence is not required, except that the arbitrator shall apply applicable law relating to privilege and work product. The arbitrator shall be authorized to provide all recognized remedies available at law or equity for any cause of action.
(viii) Attorney’s Fees and Costs. Each party shall
bear its own attorneys’ fees and costs (including expert witness costs) in the arbitration. (C) Additional Rules Applicable to Certain Cases. In
any arbitration in which a claim of any party exceeds Two Hundred Fifty Thousand Dollars ($250,000) in value, the following additional rules will supplement the JAMS rules and govern in the event of a conflict between the following rules and the rules set forth above, the JAMS rules, or both.
(i) Qualifications of Arbitrator. The arbitrator
shall be neutral and impartial and either a retired judge or a member or former member of the California State Bar with at least fifteen (15) years’ experience as a practicing lawyer in the area of construction law with substantial experience in the resolution of complex construction disputes. 326
81 (ii) Rules of Procedure. The arbitration shall be
administered by JAMS pursuant to its comprehensive arbitration rules and procedures. (iii) Written Decision. Within thirty (30) days
after the hearing is closed, the arbitrator must issue a written decision. If any party requests it, the arbitrator must issue a reasoned award.
(D) AGREEMENT TO ARBITRATION AND
WAIVER OF JURY TRIAL. BY EXECUTING THIS DECLARATION, DECLARANT, AND
BY ACCEPTING A DEED FOR THE ASSOCIATION PROPERTY OR A UNIT, AS THE CASE MAY BE, THE ASSOCIATION AND EACH OWNER, AGREE (1) TO HAVE ANY
DISPUTE DECIDED BY NEUTRAL ARBITRATION IN ACCORDANCE WITH THE
FEDERAL ARBITRATION ACT AND THE CALIFORNIA ARBITRATION ACT, TO THE
EXTENT THE CALIFORNIA ARBITRATION ACT IS CONSISTENT WITH THE FEDERAL ARBITRATION ACT; (2) TO GIVE UP ANY RIGHTS THEY MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL; AND (3) TO GIVE UP THEIR
RESPECTIVE JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, UNLESS THOSE RIGHTS ARE SPECIFICALLY INCLUDED IN THIS DECLARATION. IF ANY PARTY
REFUSES TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION,
SUCH PARTY MAY BE COMPELLED TO ARBITRATE UNDER THE FEDERAL
ARBITRATION ACT AND THE CALIFORNIA ARBITRATION ACT, TO THE EXTENT THE
CALIFORNIA ARBITRATION ACT IS CONSISTENT WITH THE FEDERAL ARBITRATION ACT.
(E) Federal Arbitration Act. The Federal Arbitration Act (9 U.S.C. § 1, et seq.) now in effect and as it may be hereafter amended will govern the interpretation and enforcement of these arbitration provisions. (F) Final and Binding Award. The decision of the
arbitrator shall be final and binding. A petition to confirm, vacate, modify or correct an award may be filed in any court of competent jurisdiction, but the award may be vacated, modified or corrected only as permitted by the Federal Arbitration Act. (G) Severability. If the arbitrator or any court determines that any provision of this Section is unenforceable for any reason, that provision shall be severed, and proceedings in this Section shall be conducted under the remaining enforceable terms of this Section.
(H) Waiver of Jury Trial. In the event the foregoing
arbitration provision is held not to apply or is held invalid, void or unenforceable in its entirety for any reason, all disputes shall be tried before a judge in a court of competent jurisdiction without a jury. The judge in such court of competent jurisdiction shall have the power to grant all legal and equitable remedies and award compensatory damages. This mutual waiver of jury trial shall be binding upon their respective successors and assigns and upon all persons and entities asserting rights or claims or otherwise acting on behalf of Declarant or Claimant or their successors and assigns.
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82 (I) Application of Award. Any proceeds awarded to the Association or any Owner arising from any dispute by settlement, award or otherwise shall be applied first for the purpose of repairing any defect claimed under such dispute or replacing reserve funds previously utilized by the Association to cause such repairs and then to the costs of such litigation. Any excess proceeds shall be applied as determined by the Board or the Owner subject to any requirements established by the non-profit mutual benefit laws of the State of California and any other applicable laws.
(J) Statute of Limitations. Subject to the terms of Civil Code § 895, et seq. (or any successor or replacement statutes) and, as hereafter amended, nothing in this Section shall be considered to toll, stay, reduce or extend any applicable statute of limitations; provided, however, that the Declarant, the Association or any Owner shall be entitled to commence a legal action which in the good faith determination of the Declarant, the Association or Owner is necessary to preserve the Declarant’s, the Association’s or any Owner’s rights under any applicable statute of limitations, provided that the Declarant, Association or Owner shall take no further steps in processing the action until it has complied with the procedures described above. (K) Notwithstanding the foregoing, an aggrieved party
may seek relief in a small claims court of competent jurisdiction, and nothing in this agreement shall prevent the parties from agreeing to mediate a dispute at any time. (b) Notwithstanding any other provision of this Declaration to the contrary, this Section shall not be amended without the consent of Declarant and the vote or approval by written ballot of at least (a) ninety percent (90%) of the voting power of the Members of the Association other than Declarant, and (b) at least ninety percent (90%) of the Mortgagees.
15.5 Violation of Restrictions.
Without in any way limiting the generality of the foregoing, if the Board of Directors determines that there is a violation of any provision of this Declaration, or the Architectural Committee determines that an Improvement which is the maintenance responsibility of an Owner is in need of installation, repair, restoration or painting, then the Board shall give written notice to the responsible Owner of the condition or violation complained of. Unless the Architectural Committee has approved in writing corrective plans proposed by the Owner to remedy the condition complained of within such period of time as may be determined reasonable by the Board after it has given said written notice, and such corrective work so approved is completed thereafter within the time allotted by the Board, the Board, after Notice and Hearing, shall undertake to remedy such condition or violation complained of, and the cost thereof shall be charged to the Owner and his or her separate Condominium whose Residence is the subject matter of the corrective work. Such cost shall be deemed to be a Special Assessment to such Owner and shall be subject to enforcement and collection by the Board in accordance with the procedures provided for in this Declaration. The Board may also adopt a schedule of reasonable fines or penalties which, in its reasonable discretion, it may assess against an Owner for the failure of such Owner, or of a resident of or visitor to such Owner’s Unit, to comply with any provision of the Restrictions. Such fines or penalties shall be deemed to be a Special Assessment and may only be assessed by the Board after Notice and Hearing.
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83 15.6 Severability.
The provisions of this Declaration shall be deemed independent and severable, and a determination of invalidity or partial invalidity or unenforceability of any one provision or portion hereof by a court of competent jurisdiction shall not affect the validity or enforceability of any other provisions hereof.
15.7 Interpretation.
The provisions of this Declaration shall be liberally construed to effectuate its purpose of creating a uniform plan for the creation and operation of a residential condominium development and for the maintenance of the Common Property, and any violation of this Declaration shall be deemed to be a nuisance. The Article and Section headings, titles and captions have been inserted for convenience only, and shall not be considered or referred to in resolving questions of interpretation or construction. As used herein, the singular shall include the plural and the masculine, feminine and neuter shall each include the other, unless the context dictates otherwise. In interpreting the Restrictions and the deed to any Unit, the physical as-built boundaries of Improvements which are constructed or reconstructed in substantial accordance with the original plans for the Project shall be conclusively presumed to be the boundaries of the Units, regardless of settling or lateral movement of the Improvements and regardless of minor variances between Unit boundaries, as defined in this Declaration, any Notice of Addition of Territory, or any Unit deed, and the boundaries of those Improvements, as constructed or reconstructed. As used in this Declaration, the term “including” shall be construed and understood to mean “including, without limitation” or “including, but not limited to.”
15.8 Mergers or Consolidations.
Upon a merger or consolidation of the Association with another association, its properties, rights and obligations may, by operation of law, be transferred to another surviving or consolidated association or, alternatively, the properties, rights and obligations of another association may, by operation of law, be added to the properties, rights and obligations of the Association as a surviving corporation pursuant to a merger. The surviving or consolidated association may administer and enforce the covenants, conditions and restrictions established by this Declaration governing the Property, together with the covenants and restrictions established upon any other property, as one (1) plan.
15.9 Use of Common Property.
The Board of Directors shall have the right to limit the number of guests that an Owner or such Owner’s tenant may permit to use any open parking area or other facilities, including recreational facilities, if any, on the Common Property, and the Board shall have the right to set further reasonable restrictions on the time and manner of use of said parking areas, recreational facilities, and other facilities in accordance with the Rules and Regulations, including, without limitation, Rules and Regulations restricting or prohibiting the use of all or designated portions of the recreational facilities of the Property by minors, guests of an Owner or his or her tenants.
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84 15.10 No Public Right or Dedication.
Except as may otherwise be expressly provided herein, nothing contained in this Declaration shall be deemed to be a gift or dedication of all or any part of the Property to the public, or for any public use; provided, that the foregoing provisions shall not be construed or understood to limit the effectiveness of any public dedication expressly set forth on any subdivision map Recorded or any other instrument with respect to the Property, or any portion thereof.
15.11 No Representations or Warranties.
No representations or warranties of any kind, express or implied, have been given or made by Declarant, or its agents or employees in connection with the Property, or any portion thereof, concerning its physical condition, zoning, compliance with applicable laws, or fitness for intended use, or in connection with the subdivision, sale, operation, maintenance, cost of maintenance, taxes or regulation thereof as a Condominium project, except as specifically and expressly set forth in this Declaration and except as may be filed by Declarant from time to time with the DRE.
15.12 Nonliability and Indemnification.
(a) General Limitation. Except as specifically provided in the Restrictions or as required by law, no right, power, or responsibility conferred on the Board or the Architectural Committee by this Declaration, the Articles or the Bylaws shall be construed as a duty, obligation or disability charged upon the Board, the Architectural Committee, any member of the Board or of the Architectural Committee, or any other officer, employee or agent of the Association. No such Person shall be liable to any party (other than the Association or a party claiming in the name of the Association) for injuries or damage resulting from such Person’s acts or omissions within what such Person reasonably believed to be the scope of his or her Association duties (“Official Acts”), except to the extent that such injuries or damage result from such Person’s willful or malicious misconduct. No such Person shall be liable to the Association (or to any party claiming in the name of the Association) for injuries or damage resulting from such Person’s Official Acts, except to the extent that such injuries or damage result from such Person’s negligence or willful or malicious misconduct. (b) Indemnification. The Association shall pay all expenses incurred by, and satisfy any judgment or fine levied against, any Person as a result of any action or threatened action against such Person to impose liability on such Person for his or her Official Acts, provided that:
(1) The Board determines that such Person acted in good faith and in a manner such Person reasonably believed to be in the best interests of the Association; (2) In the case of a criminal proceeding, the Board determines that such Person had no reasonable cause to believe his or her conduct was unlawful; and (3) In the case of an action or threatened action by or in the right of the Association, the Board determines that such Person acted with such care, including 330
85 reasonable inquiry, as an ordinarily prudent person in a like position would use under similar circumstances.
Any determination of the Board required under this Section must be approved by a majority vote of a quorum consisting of Directors who are not parties to the action or threatened action giving rise to the indemnification. If the Board fails or refuses to make any such determination, such determination may be made by the vote or written consent of a majority of a quorum of the Members of the Association, provided that the Person to be indemnified shall not be entitled to vote.
Payments made hereunder shall include amounts paid and expenses incurred in settling any such action or threatened action. This Section shall be construed to authorize payments and indemnification to the fullest extent now or hereafter permitted by applicable law.
The entitlement to indemnification hereunder shall inure to the benefit of the estate, executor, administrator, heirs, legatees, or devisees of any Person entitled to such indemnification.
15.13 Notices.
Except as otherwise provided in this Declaration, in each instance in which notice is to be given to an Owner, the same shall be in writing and may be delivered personally to the Owner, in which case personal delivery of such notice to one (l) or more co-owners of a Condominium or to any general partner of a partnership owning a Condominium shall be deemed delivery to all co-owners or to the partnership, as the case may be. Personal delivery of such notice to any officer or agent for the service of process on a corporation shall be deemed delivery to the corporation. In lieu of the foregoing, such notice may be delivered by regular United States mail, postage prepaid, addressed to the Owner at the most recent address furnished by such Owner to the Association or, if no such address shall have been furnished, to the street address of such Owner’s Unit. Such notice shall be deemed delivered three (3) business days after the time of such mailing, except for notice of a meeting of Members or of the Board of Directors in which case the notice provisions of the Bylaws of the Association shall control. Any notice to be given to the Association may be delivered personally to any member of the Board, or sent by United States mail, postage prepaid, addressed to the Association at such address as shall be fixed from time to time and circulated to all Owners. Any notice to be given to the Declarant shall be delivered personally, or sent by registered or certified mail, return receipt requested, addressed to the principal office of the Declarant, or such other address as may be provided from time to time by the Declarant.
15.14 Priorities and Inconsistencies.
If there are conflicts or inconsistencies between this Declaration and the Articles of Incorporation, the Bylaws of the Association, or any Condominium Plan Recorded in furtherance of the Project contemplated by this Declaration, then the terms and provisions of this Declaration shall prevail. If there are conflicts or inconsistencies between this Declaration and the Limited Warranty, the terms and provisions in the Limited Warranty shall prevail. 331
86 15.15 Constructive Notice and Acceptance.
Every Person who owns, occupies or acquires any right, title, estate or interest in or to any Condominium or other portion of the Property does hereby consent and agree, and shall be conclusively deemed to have consented and agreed, to every limitation, restriction, easement, reservation, condition and covenant contained herein, whether or not any reference to these restrictions is contained in the instrument by which such Person acquired an interest in the Property, or any portion thereof.
15.16 Declarant Delivery of Documents.
(a) Commencing not later than ninety (90) days after the Close of Escrow for the sale of the first Condominium in Phase 1, copies of the documents listed below, as soon as readily obtainable, shall be delivered by the Declarant to the Board of Directors at the office of the Association, or at such other place as the Board of Directors shall prescribe. The obligation to deliver the documents listed below shall apply to any documents obtained by the Declarant no matter when obtained, provided, however, such obligation shall terminate upon the earlier of (i) the conveyance of the last Condominium in Phase 1 of the Project or (ii) three (3) years after expiration of the most recently issued Final Subdivision Public Report for Phase 1 of the Project:
(1) The Recorded Subdivision Map for the Project;
(2) The Recorded Condominium Plan for Phase 1, and all
amendments thereto;
(3) The deeds and easements executed by the Declarant
conveying any Association Property to the Association, to the extent applicable; (4) The Recorded Declaration, including all amendments
thereto, and any Notice of Addition of Territory;
(5) The Association’s filed Articles of Incorporation, and all amendments thereto;
(6) The Association’s Bylaws, and all amendments thereto; (7) All architectural guidelines and all other rules regulating the use of an Owner’s interest in the Project or use of the Common Property which have been promulgated by the Association;
(8) The plans approved by the local agency or county where the subdivision is located for the construction or improvement of facilities that the Association is obligated to maintain or repair; provided, however, that the plans need not be as-built plans and that the plans may bear restrictions on their commercial exploitation or use and may contain disclaimers regarding their accuracy;
332
87 (9) All notice of completion certificates issued for Common Property Improvements;
(10) Any bond or other security device in which the Association is the beneficiary;
(11) Any written warranty being transferred to the Association for Common Property equipment, fixtures or improvements; (12) Any insurance policy procured for the benefit of the Association, its governing board or the Common Property; (13) Any lease or contract to which the Association is a party; (14) The Membership register, including mailing addresses and telephone numbers, books of account and minutes of meetings of the Members, of the governing body and of committees of the governing body of the Association; and (15) Any instrument referred to in California Business and Professions Code § 11018.6(d) but not described above which establishes or defines the common, mutual or reciprocal rights or responsibilities of Members of the Association. (b) Commencing not later than ninety (90) days after the annexation of additional Phases of Development to the Project, copies of those documents listed under subdivision (a) which are applicable to that Phase of Development, shall, as soon as readily obtainable, be delivered by the Declarant to the Board of Directors of the Association at the office of the Association, or at such other place as the Board of Directors of the Association shall prescribe. The obligation to deliver the documents listed in subsection (a) shall apply to any documents obtained by the Declarant no matter when obtained, provided, however, such obligation shall terminate as to the documentation applicable to each Phase of Development upon the earlier of (i) the conveyance of the last Separate Interest for the applicable Phase of Development or (ii) three (3) years after expiration of the most recently issued Final Subdivision Public Report for the applicable Phase of Development.
15.17 Disclosure of Agricultural Operations and Right to Farm.
Each Owner, by acceptance of a deed to a Condominium acknowledges that properties within proximity of the Project are presently utilized for agricultural production and agricultural operations. Each Owner acknowledges that such operations may subject his or her Separate Interest to inconveniences or discomfort arising from such agricultural operations, including but not limited to, noise, odors, fumes, dust, legal pesticide use, fertilizers, smoke, insects, farm personnel and truck traffic, visual impacts, night time lighting, operation of wind machines, bird bombs, pesticides, fertilizers, and other equipment, the storage, warehousing and processing of agricultural products or other inconveniences or discomforts associated with the protected agricultural operations. These agricultural practices may occur at any time during the 24-hour day. Individual sensitivities to those practices can vary from person to person. Such inconveniences may continue for so long as these properties are used for agricultural production and/or agricultural operations. Each Owner accepts such inconveniences or discomfort as a normal 333
88 and necessary aspect of living in a county with a strong rural character and an active agricultural industry. Please be advised that each Owner may be barred from obtaining legal remedies against agricultural practices conducted in a manner consistent with proper and accepted customs and standards pursuant to Section 3482.5 of the Civil Code or any pertinent local ordinance. For additional information pertaining to this disclosure and the Right to Farm Ordinance or concerns with an agricultural operation, each Owner is encouraged to contact the County Agricultural Commissioner's Office.
15.18 Disclosure of Prohibited Vehicles.
Each Owner, by acceptance of a deed to a Condominium in the Project shall be deemed to (a) acknowledge that the parking of recreational vehicles (such as motor homes, travel trailers, camper vans, boats and dune buggies) is not permitted in the Project, (b) have full knowledge of the existence of the recreational vehicles restriction, and (c) waive any legal right to oppose or object to such restriction in the future.
15.19 Additional Provisions.
Notwithstanding the provisions contained in the Restrictions, the Association and the Owners should be aware that there may be provisions of various laws, including, without limitation, the Davis-Stirling Common Interest Development Act contained in the California Civil Code, which may modify, supplement or override the Restrictions as a matter of law.
ARTICLE XVI
16. Annexation of Additional Property.
Additional real property may be annexed to Phase 1 and such additional real property may become subject to this Declaration by any of the methods set forth hereinafter:
16.1 Additions by Declarant.
Declarant or its successors or assigns shall have the right from time to time to add the Annexable Territory, or any portion or portions thereof (including recreational facilities, if any, located thereon), to the Property and to bring such added territory within the general plan and scheme of this Declaration without the approval of the Association, its Board of Directors, or Members, provided that such right of Declarant and its successors and assigns shall terminate on the later of (i) the seventh (7th) anniversary of the Recordation of this Declaration or (ii) five (5) years after the most recent recordation of a Notice of Addition as described in Section 16.4 below.
As each Phase of Development is developed, Declarant may, with respect thereto, Record a supplemental declaration (“Supplemental Declaration”) which may supplement this Declaration with such additional, supplemental or amendatory covenants, conditions, restrictions, reservations and easements as Declarant may deem appropriate for that Phase of Development.
16.2 Other Additions.
In addition to the provision for annexation specified in Section 16.1 above, additional real property may be annexed to the Property and brought within the general plan and 334
89 scheme of this Declaration upon the approval by vote or written consent of Members entitled to exercise no less than two-thirds (2/3rds) of the voting power of the Association.
16.3 Rights and Obligations-Added Territory.
Subject to the provisions of Section 16.4, upon the Recording of a Notice of Addition of Territory containing the provisions as set forth in this Section, all provisions contained in this Declaration shall apply to the real property described in such Notice of Addition of Territory (the “added territory”) in the same manner as if it were originally covered by this Declaration.
Thereafter, the rights, powers and responsibilities of the parties to this Declaration with respect to the added territory shall be the same as with respect to the property originally covered hereby, and the rights, powers and responsibilities of the Owners, lessees and occupants of Units within the added territory, as well as within the property originally subject to this Declaration, shall be the same as if the added territory were originally covered by this Declaration. Voting rights attributable to the Condominiums in the added territory shall not vest until Annual Assessments have commenced as to such Condominiums.
16.4 Notice of Addition of Territory.
The additions authorized under Sections 16.1 and 16.2 shall be made by Recording a Notice of Addition of Territory, or other similar instrument (which notice or instrument may contain the Supplemental Declaration, if any, affecting each such Phase of Development), with respect to the added territory (“Notice of Addition”) which shall extend the general plan and scheme of this Declaration to such added territory. The Notice of Addition for any addition under Section 16.1 shall be signed by Declarant. The Notice of Addition for any addition under Section
16.2 shall be signed by at least two (2) officers of the Association and shall certify that the requisite approval of the Members under Section 16.2 was obtained. The Recordation of said Notice of Addition shall constitute and effectuate the annexation of the added territory described therein, and thereupon said added territory shall become and constitute a part of the Project, become subject to this Declaration and encompassed within the general plan and scheme of covenants, conditions, restrictions, reservation of easements and equitable servitudes contained herein, and become subject to the functions, powers and jurisdiction of the Association; and the Owners of Condominiums in said added territory shall automatically become Members of the Association.
Such Notice of Addition may contain a Supplemental Declaration with such additions and modifications of the covenants, conditions, restrictions, reservation of easements and equitable servitudes contained in this Declaration as may be necessary to reflect the different character, if any, of the added territory, or as Declarant may deem appropriate in the development of the added territory and as are not inconsistent with the general plan and scheme of this Declaration. In no event, however, shall such Notice of Addition or Supplemental Declaration revoke, modify or add to the covenants, conditions, restrictions, reservation of easements, or equitable servitudes established by this Declaration as the same shall pertain to the real property originally covered by this Declaration.
Upon annexation of subsequent Phases, the Owners of Condominiums in Phase 1 will continue to have undivided percentage interests in the Common Areas of Phase 1, and will have nonexclusive easements for ingress and egress over the Common Areas of subsequently annexed Phases; Owners of Condominiums in each subsequently annexed Phase will have 335
90 undivided interests in the Common Areas of that subsequently annexed Phase, and will have nonexclusive easements for ingress and egress over the Common Areas of previously and subsequently annexed Phases. Assessments collected from Owners may be expended by the Association without regard to the particular Phase from which such Assessments came. All Owners shall have ingress and egress to all portions of the Common Property throughout the Project, subject to the provisions of this Declaration, the Bylaws of the Association and to the Rules and Regulations of the Association in effect from time to time.
Declarant hereby reserves to itself and to the Owners of Condominiums in subsequently annexed Phases, nonexclusive easements for ingress and egress over the Common Area of previously annexed Phases. Declarant further reserves to itself and the Owners of Condominiums in each Phase of Development, nonexclusive easements for ingress and egress over the Common Areas of subsequently annexed Phases upon annexation thereof pursuant to this Section.
16.5 Deannexation; Amendment.
Notwithstanding anything herein which is or may appear to be to the contrary, Declarant may amend a Notice of Addition or delete all or a portion of a Phase of Development from coverage of this Declaration and the jurisdiction of the Association, so long as Declarant is the owner of all of such Phase of Development, and provided that (1) an amending instrument or a Notice of Deletion of Territory, as applicable, is Recorded in the same manner as the applicable Notice of Addition was Recorded, (2) Declarant has not exercised any Association vote with respect to any portion of such Phase of Development, (3) assessments have not yet commenced with respect to any portion of such Phase of Development, (4) Close of Escrow has not occurred for the sale of any Condominium in such Phase of Development, and (5) the Association has not made any expenditures or incurred any obligations with respect to any portion of such Phase of Development. Any such amendment or deannexation shall be effective upon the Recordation of the amending instrument or Notice of Deletion of Territory, as applicable, which need only be executed by Declarant. Notwithstanding any other provisions of this Declaration, at any time prior to the first Close of Escrow for the sale of a Condominium within a Phase of Development, Declarant may unilaterally amend the Supplemental Declaration applicable to such Phase of Development by Recording a written instrument which effects the amendment and is signed and acknowledged by Declarant.
16.6 Power of Attorney.
Each Owner of a Condominium in the Project, by accepting a deed to a Condominium, shall be deemed to have (a) agreed and acknowledged that the Owners own no interest in the Annexable Territory which may be developed, if at all, by Declarant in its sole and absolute discretion and (b) constituted and irrevocably appointed Declarant (for so long as Declarant or its successive assigns owns all or any portion of the Annexable Territory), as his or her Attorney-in-Fact, for himself or herself and each of his or her Mortgagees, optionees, grantees, licensees, trustees, receivers, lessees, tenants, judgment creditors, heirs, legatees, devisees, administrators, executors, legal representatives, successors and assigns, whether voluntary or involuntary, to prepare, execute, acknowledge and Record any Condominium Plan or amendment to the Condominium Plans for all or any portion of the Annexable Territory. This power of 336
91 attorney is coupled with an interest. However, nothing set forth herein shall be deemed or construed as an agreement or acknowledgement by Declarant that any Owner shall be entitled to any participation in or discretion over the preparation and Recordation of a Condominium Plan or Plans for all or any portion of the Annexable Territory, which are and shall be subject to Declarant’s sole control. The acceptance or creation of any Mortgage or other encumbrance whether or not voluntary, created in good faith, or given for value, shall be deemed to be accepted or created subject to each of the terms and conditions of the Power of Attorney described in this Section.
ARTICLE XVII
17. Covenants in Favor of Local Jurisdiction.
17.1 Local Jurisdiction.
The local governmental entity with primary jurisdiction over this residential development is the City of Santa Paula, State of California (“City”). Both the Association and Owners shall, at all times, abide by all applicable ordinances, laws, regulations, and requirements imposed on the development pursuant to City approvals for Project No. 2025-CDP-01 (Address:
895 Faulkner Rd), including without limitation Conditions of Approval and any mitigation measures in the 2024 General Plan Final Environment Impact Report (FEIR) and FEIR Addendum specific to the project (collectively, “City Requirements”).
17.2 Nuisance Abatement and Code Enforcement
The Association shall be responsible for enforcing Owners’ compliance with the City Requirements. In the event the Association does not timely enforce compliance, the City may but is not required to pursue enforcement action against an Owner. The Association and responsible Owner will be jointly and severally liable to the City for the actual costs incurred by the City to enforce the City Requirements.
17.3 Modification
The Association shall not remove or amend any of the City Requirements or other provision in favor of the City except by mutual written agreement approved by the City Council. [Signature page follows]
337
34724.002-2725452v4 92
This Declaration is dated for identification purposes _____________, 202__. “Declarant”
SP Harridge Santa Paula, LLC,
a Delaware limited liability company
By:
Name:
Title:
338
34724.002-2725452v4
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
)
COUNTY OF _________________________ )
On ____________________, before me, ____________________________________________, a Notary Public, personally appeared ______________________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument, and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of Colorado that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Notary Public
339
SUBORDINATION AGREEMENT
The undersigned, as Beneficiary of the beneficial interest in and under that certain Deed of Trust dated _______________________ and recorded on _____________________ as Instrument No. _________________, in the Official Records of Ventura County, California (the “Deed of Trust”) hereby expressly subordinates said Deed of Trust and its beneficial interest thereunder to the foregoing Declaration of Covenants, Conditions and Restrictions and Reservation of Easements for [895 Faulkner Road] (“Declaration”), and to all other interests to be conveyed to the Association in accordance with the Declaration. By executing this Subordination, the undersigned agrees that should the undersigned or its successors or assigns acquire title to all or any portion of the Property by foreclosure (whether judicial or nonjudicial), deed-in-lieu of foreclosure or any other remedy in or relating to the Deed of Trust, the undersigned and such successors and assigns will acquire title subject to the provisions of the Declaration, which shall remain in full force and effect.
Dated: __________________, 202__ ____________________________, ____________________________
By:
Name:
Its:
340
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF )
)
COUNTY OF _________________ )
On ____________________, before me, _____________________________________________, a Notary Public, personally appeared _____________________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument, and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of ___________________ that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Notary Public
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EXHIBIT “A”
LEGAL DESCRIPTION OF ANNEXABLE TERRITORY
Lot 1 of Tract No. 6114, as shown on that certain Subdivision Map filed on _________________, in Book ____ at Pages ___ through ___, inclusive, of Miscellaneous Records (Maps), in the Office of the Ventura County Recorder; EXCEPTING THEREFROM:
All of the real property comprising Phase 1 (as described herein). 342
To: Honorable Mayor and Members of the City Council
From: Monica Castillo, City Attorney
Subject:
PROJECT NO. 2025-CI-07: AN ORDINANCE AMENDING CHAPTERS
16.52 SWIMMING POOLS, 16.56 AMUSEMENT ARCADES, 16.58
ALCOHOLIC BEVERAGE SALES, 16.60 CHILD DAY CARE FACILITIES,
16.62 ASSEMBLY HALLS, 16.64 COMMUNITY CARE FACILITIES, 16.66 DRIVE-THROUGH FACILITIES, 16.68 NEWRACKS, 16.70 RECYCLING FACILITIES, 16.72 SERVICE STATIONS, 16.74 VENDING MACHINES,
16.75 PROHIBITION ON INDUSTRIAL HEMP CULTIVATION, 16.76 YARD AND GARAGE SALES, 16.77 ELECTRIC VEHICLE CHARGING
SYSTEMS; STREAMLINED PERMITTING, 16.78 EMERGENCY
SHELTERS, 16.79 REGULATION OF CANNABIS ACTIVITIES, 16.80 SUBDIVISION REGULATIONS, 16.85 CONDOMINIUMS AND
CONVERSIONS, 16.96 GRADING PERMITS, 16.97 GRADING
REGULATION, 16.98 HILLSIDE GRADING PRACTICES, 16.99
DRAINAGE, EROSION, AND DUST CONTROL, 16.100 GENERAL
PROVISIONS, 16.102 PERMIT AND RECLAMATION PLAN, 16.104
REGULATIONS FOR OPERATION OF SURFACE MINE, 16.106
GROWTH MANAGEMENT, 16.108 TRANSPORTATION DEMAND
MANAGEMENT, AND 16.110 NONCONFORMITIES OF THE SANTA
PAULA MUNICIPAL CODE IN ORDER TO CORRECT
INCONSISTENCIES, OUTDATED LANGUAGE AND FORMATTING AND
FINDING THE ACTION TO BE STATUTORILY EXEMPT FROM CEQA
UNDER SECTION 15061(B)(3) OF THE PUBLIC RESOURCES CODE
Date: September 17, 2025
Agenda Item: 11.B
CITY OF SANTA PAULA
MEMORANDUM
RECOMMENDATION:
Staff recommends that the City Council:
1. Open the public hearing, receive public testimony, close the public hearing; and
2. Waive the first reading by title only, and introduce Ordinance No. 1348, entitled “An Ordinance Amending Chapters 16.52 Swimming Pools, 16.56 Amusement Arcades,
16.58 Alcoholic Beverage Sales, 16.60 Child Day Care Facilities, 16.62 Assembly Halls,
16.64 Community Care Facilities, 16.66 Drive-Through Facilities, 16.68 Newsracks,
16.70 Recycling Facilities, 16.72 Service Stations, 16.74 Vending Machines, 16.75 Prohibition On Industrial Hemp Cultivation, 16.76 Yard And Garage Sales, 16.77 Electric Vehicle Charging Systems; Streamlined Permitting, 16.78 Emergency Shelters, 16.79 343
Regulation Of Cannabis Activities, 16.80 Subdivision Regulations, 16.85 Condominiums And Conversions, 16.96 Grading Permits, 16.97 Grading Regulation, 16.98 Hillside Grading Practices, 16.99 Drainage, Erosion, And Dust Control, 16.100 General Provisions, 16.102 Permit And Reclamation Plan, 16.104 Regulations For Operation Of Surface Mine, 16.106 Growth Management, 16.108 Transportation Demand Management, And 16.110 Nonconformities Of The Santa Paula Municipal Code In Order To Correct Inconsistencies, Outdated Language And Formatting And Finding The Action To Be Statutorily Exempt From CEQA Under Section 15061(B)(3) Of The Public Resources Code
Presented by: Monica Castillo, City Attorney
BACKGROUND:
The Municipal Code has not undergone a comprehensive update since November 17, 1997.
Since then, amendments have been adopted as needed to respond to changes in state law, sometimes resulting in internal inconsistencies within the Code and operational challenges.
Recognizing the need for a Code overhaul, one of the objectives City Council placed in the City's 2023-2025 Two-Year Strategic Plan (Goal G, Objective 2) is to review the City's Municipal Code to reduce irrelevant code sections and update the Development Code. This goal was also identified as a mid-level priority (2 out of 1-3) in the Citygate Associates report dated June 19, 2024 recommending that the City review development codes and state laws to update policies and procedures for discretionary planning approvals, licenses and permits.
On May 9, 2024, the City Council and Planning Commission held a joint study session for a presentation on the comprehensive Municipal Code update, where they were asked to select one of three ways to approach the Municipal Code update. Option 3 was selected, directing staff and the City Attorney's office to begin with the Development Code (Title XVI) and simultaneously go through the other titles. Since then, this Council has reviewed and approved several batches of development code amendments.
On November 20, 2024, the City Council adopted Ordinance No. 1340 to update its Accessory Dwelling Unit Ordinance to align with State legislation taking effect January 1, 2025.
On April 2, 2025, the City Council adopted Ordinance No. 1343, amending Chapters 160 (Development Impact Fees), 16.01 (Enactment and Applicability), 16.03 (Administration and Enforcement), and 16.05 (Definitions).
On June 4, 2025, the City Council adopted Ordinance No. 1345, amending Chapters 16.07 (Establishment of Zones), 16.09 (Open Space Zones), 16.11 (Agricultural Zones), 16.21 (Industrial Zones), and 16.27 (Airport Zones).
On July 2, 2025, the City Council adopted Ordinance No. 1346, amending Chapters16.13 (Residential Zones), 16.15 (Commercial Zones), 16.23 (Institutional Zones), 16.25 (Airport Zones), 16.29 (Railroad Overlay Zone), 16.31 (Planned Development Overlay Zone), 16.33 (Historic Landmark Overlay Zone), 16.34 (Historical Property Agreements), 16.35 (Housing Opportunities Overlay Zone), 16.40 (General Property Development Standards). Excluded from the ordinance were primary dwelling unit standards (Section 16.13.030) and the City's 344
inclusionary housing ordinance (Section 16.13.400 et seq.) for further consideration by the Planning Commission.
On September 3, 2025, the City Council considered proposed Ordinance No. 1346 amending Chapters 16.42 (Performance Standards) and 16.44 (Fences, Walls, and Hedges). The Council referred amendments to Sections 16.42.050 (Light and Glare) and 16.44.030(A)(5) back to the Planning Commission for consideration. For Section 16.42.050, Council directed staff to add an exception for blinking holiday lights from the ban on flickering or flashing lights in any residential or commercial zone. It was also requested that a prohibition on strobe lights be included. For Section 16.44.030(A)(5), Council directed staff to replace "Community and Economic Development Department" with "Department" or other term consistent with code definitions.
On August 26, 2025, the Planning Commission adopted Resolution No. 3873 recommending the City Council adopt an ordinance amending Chapters 16.52 Swimming Pools, 16.56 Amusement Arcades, 16.58 Alcoholic Beverage Sales, 16.60 Child Day Care Facilities, 16.62 Assembly Halls, 16.64 Community Care Facilities, 16.66 Drive-Through Facilities, 16.68 Newsracks, 16.70 Recycling Facilities, 16.72 Service Stations, 16.74 Vending Machines,
16.75 Prohibition On Industrial Hemp Cultivation, 16.76 Yard And Garage Sales, 16.77 Electric Vehicle Charging Systems; Streamlined Permitting, 16.78 Emergency Shelters, 16.79 Regulation Of Cannabis Activities, 16.80 Subdivision Regulations, 16.85 Condominiums And Conversions, 16.96 Grading Permits, 16.97 Grading Regulation, 16.98 Hillside Grading Practices, 16.99 Drainage, Erosion, And Dust Control, 16.100 General Provisions, 16.102 Permit And Reclamation Plan, 16.104 Regulations For Operation Of Surface Mine, 16.106 Growth Management, 16.108 Transportation Demand Management, and 16.110 Nonconformities and finding the action exempt from CEQA.
The proposed ordinance is now before the City Council for its consideration.
ANALYSIS:
Code Update - Renumbering & References
The revisions to Chapters 16.52 Swimming Pools, 16.56 Amusement Arcades, 16.58 Alcoholic Beverage Sales, 16.60 Child Day Care Facilities, 16.62 Assembly Halls, 16.64 Community Care Facilities, 16.66 Drive-Through Facilities, 16.68 Newsracks, 16.70 Recycling Facilities, 16.72 Service Stations, 16.74 Vending Machines, 16.75 Prohibition On Industrial Hemp Cultivation, 16.76 Yard And Garage Sales, 16.77 Electric Vehicle Charging Systems; Streamlined Permitting, 16.78 Emergency Shelters, 16.79 Regulation Of Cannabis Activities,
16.80 Subdivision Regulations, 16.85 Condominiums And Conversions, 16.96 Grading Permits, 16.97 Grading Regulation, 16.98 Hillside Grading Practices, 16.99 Drainage, Erosion, And Dust Control, 16.100 General Provisions, 16.102 Permit And Reclamation Plan,
16.104 Regulations For Operation Of Surface Mine, 16.106 Growth Management, 16.108 Transportation Demand Management, and 16.110 Nonconformities, are a result of the City initiated Municipal Code amendment.
If the ordinance is adopted, these chapters would be renumbered to run sequentially and internal cross-references updated for consistency with development code changes made earlier. References to "Planning Director" will be replaced with "Director", which definition includes the current title of Community and Economic Development Director. A redline of 345
these largely administrative technical changes will be provided to the City Council at or before the meeting.
Substantive amendments to these chapters recommended by the Planning Commission will return to Council at a future meeting.
STRATEGIC PLAN:
Reviewing the City's municipal code for updates and to reduce irrelevancy directly relates to Strategic Plan Goal G.2 Municipal Code.
FISCAL IMPACTS:
There are no direct fiscal impacts from this code update.
OPTIONS:
In addition to the recommended action, the City Council may:
1. Decline to introduce Ordinance No. 1348.
2. Direct staff as desirable.
ATTACHMENTS:
A - Ordinance - Chapters 16.52 - 16.110
Redline-c1.pdf
346
ATTACHMENT A
ORDINANCE NO. 1348
347
ORDINANCE NO. 1346
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA
PAULA AMENDING CHAPTERS 16.52 SWIMMING POOLS, 16.56
AMUSEMENT ARCADES, 16.58 ALCOHOLIC BEVERAGE SALES, 16.60 CHILD DAY CARE FACILITIES, 16.62 ASSEMBLY HALLS, 16.64
COMMUNITY CARE FACILITIES, 16.66 DRIVETHROUGH FACILITIES,
16.68 NEWSRACKS, 16.70 RECYCLING FACILITIES, 16.72 SERVICE STATIONS, 16.74 VENDING MACHINES, 16.75 PROHIBITION ON
INDUSTRIAL HEMP CULTIVATION, 16.76 YARD AND GARAGE SALES,
16.77 ELECTRIC VEHICLE CHARGING SYSTEMS; STREAMLINED
PERMITTING, 16.78 EMERGENCY SHELTERS, 16.79 REGULATION OF CANNABIS ACTIVITIES, 16.80 SUBDIVISION REGULATIONS, 16.85 CONDOMINIUMS AND CONVERSIONS, 16.96 GRADING PERMITS, 16.97 GRADING REGULATION, 16.98 HILLSIDE GRADING PRACTICES, 16.99 DRAINAGE, EROSION, AND DUST CONTROL, 16.100 GENERAL
PROVISIONS, 16.102 PERMIT AND RECLAMATION PLAN, 16.104
REGULATIONS FOR OPERATION OF SURFACE MINE, 16.106 GROWTH MANAGEMENT, 16.108 TRANSPORTATION DEMAND MANAGEMENT,
AND 16.110 NONCONFORMITIES OF THE SANTA PAULA MUNICIPAL
CODE IN ORDER TO CORRECT INCONSISTENCIES, OUTDATED
LANGUAGE AND FORMATTING AND FINDING THE ACTION TO BE
STATUTORILY EXEMPT FROM CEQA UNDER SECTION 15061(b)(3) OF
THE PUBLIC RESOURCES CODE
The City Council of the City of Santa Paula does ordain as follows:
WHEREAS, the City of Santa Paula wishes to protect and preserve the quality of life throughout the City, through effective land use and planning; WHEREAS, the City initiated a Municipal Code update in order to bring the entire code up to date, clarify appropriate uses within the City, and adhere to current state law; WHEREAS, in recent years, the California Legislature has approved, and the Governor has signed into law, a number of bills that, among other things, amend various sections of the Government Code to impose new limits on local authority to regulate standards that guide how land can be used and developed within cities; WHEREAS, Staff has been reviewing Santa Paula Municipal Code (“SPMC”) Chapters 16.52 Swimming Pools, 16.56 Amusement Arcades, 16.58 Alcoholic Beverage Sales, 16.60 Child Day Care Facilities, 16.62 Assembly Halls, 16.64 Community Care Facilities, 16.66 Drive-Through Facilities, 16.68 Newsracks, 16.70 Recycling Facilities,
16.72 Service Stations, 16.74 Vending Machines, 16.75 Prohibition On Industrial Hemp 348
Cultivation, 16.76 Yard And Garage Sales, 16.77 Electric Vehicle Charging Systems; Streamlined Permitting, 16.78 Emergency Shelters, 16.79 Regulation Of Cannabis Activities, 16.80 Subdivision Regulations, 16.85 Condominiums And Conversions, 16.96 Grading Permits, 16.97 Grading Regulation, 16.98 Hillside Grading Practices, 16.99 Drainage, Erosion, And Dust Control, 16.100 General Provisions, 16.102 Permit And Reclamation Plan, 16.104 Regulations For Operation Of Surface Mine, 16.106 Growth Management, 16.108 Transportation Demand Management, and 16.110 Nonconformities for inconsistencies, outdated language, and/or conflicts with current state law; WHEREAS, while staff completes its review for recommended substantive updates, it was decided that the renumbering of these chapters should be completed first so that they run sequentially with prior and future proposed Development Code amendments and can be more conveniently referenced-back.
WHEREAS, on August 26, 2025 the Planning Commission, after considering the proposed amendments renumbering the Development Code chapters and making like administrative changes, adopted Resolution No. 3873 recommending the City Council adopt the proposed amendments.
WHEREAS, on September 17, 2025, the City Council held a duly-noticed public hearing to consider the proposed Ordinance, including the public testimony and agenda report prepared in connection with the proposed Ordinance and consideration and recommendation by the City’s Planning Commission; and
WHEREAS, all legal prerequisites to the adoption of this Ordinance have occurred.
SECTION 1. Incorporation. The recitals above are true and correct and are each incorporated by reference and adopted as findings by the City Council.
SECTION 2. CEQA. The City Council determines this Ordinance is not a project within the meaning of Section 15378 of the State of California Environmental Quality Act ("CEQA"), because it has no potential of resulting in physical change in the environment, directly or indirectly. The City Council further finds, under Title 14 of the California Code of Regulations, Section 15061(b)(3), that this Ordinance is nonetheless exempt from the requirements of CEQA in that the activity is covered by the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment. Where it can be with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA.
SECTION 3. General Plan and Development Objectives. Pursuant to SPMC §
16.208.030(C), the City Council has reviewed the Planning Commission’s recommendation, and finds that the proposed amendments are consistent with the objectives of Title 16 of the SPMC, the General Plan, and development policies of the City as follows:
349
A. The proposed code amendment is consistent with the objectives, policies, general land uses, and programs of the Santa Paula General Plan (2040), as described in Section 4.A. below.
B. The purpose of Chapter 16.208 Development Code Amendments is to allow for amendment to the Development Code in recognition of the fact that physical, economic, and other conditions in the City may change over time. The proposed amendments recognize these changing conditions by updating terms and creating a more intuitive sequential numbering scheme for code users to follow.
SECTION 4. Development Code Amendment Findings. Pursuant to SPMC §16.208.050, the City Council makes the following required findings of fact:
C. The proposed code amendment is consistent with the goals, policies, and objectives of the General Plan. The proposed amendment is part of a larger effort to update the Santa Paula Municipal Code. The proposed amendment is largely administrative in nature intended to remove inconsistencies, typographical errors, and outdated terms in the Development Code. The amendment updates terms and creates a more intuitive sequential numbering scheme for code users to follow.
Nothing in the proposed amendment would create an inconsistency with the goals, policies and objectives of the 2040 General Plan.
A. The proposed code amendment will not adversely affect surrounding properties.
The proposed amendment will not adversely affect surrounding properties because the amendments are administrative in nature intended to update terms and create a more intuitive sequential numbering scheme for code users to follow.
B. The proposed code amendment promote public health, safety, and general welfare and serves the goals and purposes of Title 16. The public health, safety, and general welfare will be promoted because the proposed amendments update terms to reflect current City practices and create a more intuitive sequential numbering scheme for code users to follow.
SECTION 5. Code Amendment. Chapters 16.52 Swimming Pools, 16.56 Amusement Arcades, 16.58 Alcoholic Beverage Sales, 16.60 Child Day Care Facilities, 16.62 Assembly Halls, 16.64 Community Care Facilities, 16.66 Drive-Through Facilities, 16.68 Newsracks, 16.70 Recycling Facilities, 16.72 Service Stations, 16.74 Vending Machines,
16.75 Prohibition On Industrial Hemp Cultivation, 16.76 Yard And Garage Sales, 16.77 Electric Vehicle Charging Systems; Streamlined Permitting, 16.78 Emergency Shelters,
16.79 Regulation Of Cannabis Activities, 16.80 Subdivision Regulations, 16.85 Condominiums And Conversions, 16.96 Grading Permits, 16.97 Grading Regulation,
16.98 Hillside Grading Practices, 16.99 Drainage, Erosion, And Dust Control, 16.100 General Provisions, 16.102 Permit And Reclamation Plan, 16.104 Regulations For Operation Of Surface Mine, 16.106 Growth Management, 16.108 Transportation Demand Management, and 16.110 Nonconformities of the Santa Paula Municipal Code are hereby amended and restated to read in their entirety as provided in Exhibit “A,” attached hereto and incorporated herein by reference.
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SECTION 6. Publication. The City Clerk is directed to certify to the adoption of this Ordinance and post or publish this Ordinance as required by law.
SECTION 7. Custodian of Records. The custodian of records for this Ordinance is the City Clerk and the records comprising the administrative record are located at 970 E.
Ventura Street, Santa Paula, California 93060.
SECTION 8. Severability. If any provision of this Ordinance or its application to any person or circumstance is held to be invalid by a court of competent jurisdiction, such invalidity has no effect on the other provisions or applications of the Ordinance that can be given effect without the invalid provision or application, and to this extent, the provisions of this Ordinance are severable. The City Council declares that it would have adopted this Ordinance irrespective of the invalidity of any portion thereof.
PASSED, APPROVED AND ADOPTED by the City Council of the City of Santa Paula, at a regular meeting of the City Council held on the ____ day of _____________ , 2025.
CITY OF SANTA PAULA:
Pedro Chavez, Mayor
ATTEST:
Julie Latshaw, City Clerk
APPROVED AS TO FORM:
Monica Castillo, City Attorney
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EXHIBIT A
352
CHAPTER 16.26:SWIMMING POOLS
Section
16.26.010 Purpose and intent
16.26.020 Permitted location
16.26.030 Fences, walls and gates
16.26.040 Decks
16.26.050 Other applicable regulations
§ 16.26.010 PURPOSE AND INTENT.
(A) The purpose of this chapter is to provide minimum standards to protect neighborhood aesthetics and to guard against impacts to adjoining properties. (B) Any property owner wishing to construct a swimming pool must submit plans for the swimming pool to the Planning Department, and must have received written approval of such plans prior to obtaining building permits, in accordance with the provisions of this chapter. (Ord. 1100, passed 7-6-04)
§ 16.26.020 PERMITTED LOCATION.
No swimming pool, hot tub, spa, or similar body of water, or pool equipment, may be located within three feet of any property line, or within any front or side yard setbacks.
Figure 26-1
Allowable Area for Pools & Spas
(Ord. 1100, passed 7-6-04)
§ 16.26.030 FENCES, WALLS AND GATES.
All fences, walls and gates required by the Building Code must also meet the requirements of Chapter 16.22(Fences, Walls & Hedges).
(Ord. 1100, passed 7-6-04)
§ 16.26.040 DECKS.
(A) Above ground decks must comply with all setback requirements of the applicable zone. 353
(B) Ground level decks may be constructed to the property line, provided adequate drainage features are available to prevent overflow or splash water from the pool from draining onto the adjacent property.
(Ord. 1100, passed 7-6-04)
§ 16.26.050 OTHER APPLICABLE REGULATIONS.
In addition to the requirements contained in this chapter, any applicable requirements in the following chapter(s) apply:
Chapter 154: Swimming Pools
(Ord. 1100, passed 7-6-04)
CHAPTER 16.27:AMUSEMENT ARCADES
Section
16.27.010 Development standards and use conditions
16.27.020 Existing businesses
§ 16.27.010 DEVELOPMENT STANDARDS AND USE CONDITIONS.
All amusement centers or arcades will be subject to the following restrictions and requirements:
(A) No arcade will be permitted within 200 feet of any school, church, hospital, convalescent hospital, retirement home, residence, or public playground. The 200-foot distance will be measured from the front entrance of the arcade building to the nearest property line of the use listed in this division. (B) All windows must be kept clear of any item or tint that obscures full view from the exterior to inside the business.
(C) All arcades must obtain a Conditional Use Permit. In deliberating the granting of a Conditional Use Permit, the following factors will be considered:
(1) Possible requirements for parking of vehicles, bikes and mopeds; (2) Possible requirements for restroom facilities;
(3) Possible restrictions on food and alcohol consumption on the premises; (4) Possible restriction of operating hours and use of the premises by school children during school hours;
(5) Possible requirements for adult supervision and/or security; (6) Possible requirements for outdoor lighting and trash receptacles; (7) Possible limitation on the number of machines allowed per square footage of public floor space;
(8) Possible requirement for change machine or insurance of availability of change; (9) Possible requirement for indoor lighting and noise-attenuation devices; (10) Possible requirement for a camera/video surveillance system; (11) Possible requirement for “no loitering” signs;
(12) Any other factors which could cause a detrimental atmosphere to the community so as to limit disturbances to the residents of the city; and (13) The proximity of the arcade to any residential uses. 354
(D) The Planning Commission will have the authority to deny a Conditional Use Permit for an amusement arcade if the Commission determines that the arcade cannot be operated in a given location in a manner that will not generate problems or incompatibilities with neighboring uses. (Ord. 1100, passed 7-6-04)
§ 16.27.020 EXISTING BUSINESSES.
Any person, upon the effective date of this section, operating an arcade and holding a valid business license for such operation, is exempt from the provisions of this section; provided, however, that no expansion of the use will be permitted without the facility complying with the provisions of this section.
Expansion will include any increase in the number of machines or in floor area after the effective date of this chapter.
(Ord. 1100, passed 7-6-04)
CHAPTER 16.28:ALCOHOLIC BEVERAGE SALES
Section
16.28.010 Development standards and use conditions
16.28.020 Existing businesses
16.28.030 Temporary sales of alcoholic beverages
§ 16.28.010 DEVELOPMENT STANDARDS AND USE CONDITIONS.
Any use providing alcohol beverage sales for either on-site or off-site consumption is subject to the following standards and conditions on use:
(A) All new sales of alcohol, with the exception of temporary sales as specified in 16.28.030 of this chapter, must obtain a Conditional Use Permit.
(B) A new alcohol sales use may only be established in a location such that the proposed use will not contribute to undue concentration of such uses in an area where additional such uses would be undesirable, with consideration to be given to the area’s function and character, problems of crime and loitering, traffic problems and capacity.
(C) Except for temporary sales of alcohol citywide and except for alcohol sales for on-site consumption within the Central Business District, sale of alcoholic beverages within 300 feet of a public or private school is prohibited on weekdays between the hours or 7:00 a.m. and 6:00 p.m. (D) The proposed use must not adversely affect adjacent or nearby properties. (E) Adequate litter receptacles must be provided.
(F) Where the proposed use is near residential uses, it must be limited in hours of operation, or designed and operated, so as to avoid disruption of residents’ sleep between the hours of 10:00 p.m. and 7:00 a.m.
(G) No signs advertising any kind of alcoholic product which will be easily visible from the exterior of the business will be permitted. This prohibition does not apply to business signage representing a registered company name.
(H) Windows must be kept free of signs and other obstructions to allow visual inspection from the outside.
(I) The property owner/operator/applicant and the city must enter into an enforcement agreement to facilitate the control of the sale of alcohol, inclusive of spirits, distilled liquor, beer and wine at this site before selling alcohol on the subject property. This agreement will be subject to review and approval of the City Council. The agreement must also obligate any heirs, assigns, and other future owners/operators of the establishment, or must be replaced by a new similar agreement. 355
(J) No provision in this section is intended to conflict with the authority of the State of California Bureau of Alcoholic Beverage Control (ABC) to issue alcohol sales licenses. Before commencing the proposed use, applicants seeking a Conditional Use Permit for new alcohol sales are required to obtain the appropriate license from ABC in accordance with state law. (Ord. 1100, passed 7-6-04; Am. Ord. 1194, passed 7-7-08; Am. Ord. 1316, passed 5-18-22; Am. Ord. 1320, passed 1-1823)
§ 16.28.020 EXISTING BUSINESSES.
(A) Any establishment that has continuously held an active alcohol sales license from the State of California Bureau of Alcoholic Beverage Control (ABC) to sell alcoholic beverages as of a date before July 6, 2004 (the date when the city’s requirement for a Conditional Use Permit went into effect), is exempt from the provisions of this chapter; provided, however, that no expansion of the use will be permitted without the facility complying with the provisions of this chapter, including the securing of a Conditional Use Permit. Expansion includes any increase in square footage of a business, or request for increase in license privileges on or after July 6, 2004. (B) Notwithstanding the exemption from this chapter under division (A), all sales of alcohol legally established prior to July 6, 2004 (the date when the city’s requirement for a Conditional Use Permit went into effect) will expire in the event that the licensee or owner closes the establishment for more than 30 days, except in the case of a remodeling, fire, natural disaster, or other physical calamity beyond the control of the owner. In such cases, the use will expire within one year. (Ord. 1100, passed 7-6-04; Am. Ord. 1316, passed 5-18-22) § 16.28.030 TEMPORARY SALES OF ALCOHOLIC BEVERAGES.
(A) Notwithstanding the provisions of Chapter 16.09 (Commercial Zones), sales of alcoholic beverages may take place for a maximum of one day without the necessity of obtaining a conditional use permit. Such one-day events are prohibited within 1,000 feet of community street fairs, carnivals, festivals and parades which have been approved by the City Council. However, this prohibition does not preclude the sale of alcohol at these community events if approved by the City Council. (B) Temporary sales lasting not more than three days, or any portion thereof over one, must be approved in advance by the City Council. The Council may establish conditions regarding such sales to assure compliance with city codes and the health, safety and welfare of the public. The City Council may deny such requests if it finds that the prior history of the organization or individual requesting the sale warrants such a denial or if the potential impacts of traffic congestion, loitering, crime, public drunkenness or other problems appear to be of a magnitude that cannot be overcome through the imposition of conditions. Such events are prohibited within 1,000 feet of community street fairs, carnivals, festivals and parades that have been approved by the City Council. However, this prohibition will not preclude the sale of alcohol at the site of these community events if approved by the City Council. (Ord. 1100, passed 7-6-04; Am. Ord. 1316, passed 5-18-22) CHAPTER 16.29:CHILD DAY CARE FACILITIES
Section
16.29.010 Development standards and use conditions
16.29.020 Child day care centers
16.29.030 Small family day care homes
16.29.040 Large family day care homes
§ 16.29.010 DEVELOPMENT STANDARDS AND USE CONDITIONS.
356
(A) All child day care facilities must comply with all applicable state licensing laws at all times.
(B) Required parking spaces must be provided for all child day care facilities in accordance with Chapter 16.23 (Off-street Parking and Loading) of this Title 16. (C) Outdoor play areas must be provided consistent with state requirements, based on maximum capacity. Outdoor play areas must not be located within required front yards or street facing side yards of residential properties, or within 20 feet of the ultimate public right-of-way for commercial or industrial properties.
(D) All child day care facilities must comply with noise standards for the underlying zone, as outlined in Chapter 93 of the Santa Paula Municipal Code and the Noise Element of the City of Santa Paula General Plan.
(Ord. 1100, passed 7-6-04)
§ 16.29.020 CHILD DAY CARE CENTERS.
Child day care centers as defined in Cal. Health & Safety Code 1596.76 are permitted in the C-G General Commercial zones, subject to design review as outlined in Chapter 16.67 of this Title 16, and conditionally in all residential, commercial and light industrial zones, pursuant to Chapter 16.63 (Conditional Use Permits).
(A) Operating standards. The following operating standards apply for day care centers. (1) The hours of operation for any child day care center must be compatible with the permitted uses in the surrounding area.
(2) Outdoor activities may only be conducted between the hours of 8:00 a.m. and 6:00 p.m. in residential zones and 6:00 a.m. and 7:00 p.m. in all other zones. (3) No outdoor play area may be located within ten feet of a residentially zoned property.
(4) Where a child day care center abuts a property in a residential zone, a masonry wall of minimum height six feet, with screen landscaping, must be erected and maintained between the two uses.
(5) In addition to the parking requirements outlined in Chapter 16.23 (Off-street Parking), three parking spaces must be provided for the loading and unloading of children. Where onstreet parking is available along the street frontage of the day care center, only two of these spaces are required on site.
(6) Loading and unloading areas must be located so that children do not cross traffic to reach the facility. The loading and unloading areas must be designed to minimize interference with traffic and promote safety of the children.
(7) The provider must secure the appropriate child day care license, as required by the State of California Department of Social Services. Proof of such license must be submitted to the Director prior to a certificate of occupancy being issued to the day care center. (Ord. 1100, passed 7-6-04)
§ 16.29.030 SMALL FAMILY DAY CARE HOMES.
Small family day care homes as defined in Cal. Health & Safety Code 1597.44 are permitted by right in all residential zones in the city, pursuant to Cal. Health & Safety Code 1597.45. The provider must secure a small family day care home license from the State of California Department of Social Services.
In accordance with Cal. Health & Safety Code 1597.45, small family daycares homes are not required to obtain a City of Santa Paula business license or home occupation permit. (Ord. 1100, passed 7-6-04)
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§ 16.29.040 LARGE FAMILY DAY CARE HOMES.
The purpose of this section is to set forth the standards, restrictions, and requirements for the operation of large family day care homes, as defined in Cal. Health & Safety Code 1597.465, on properties zoned for single-family dwellings. Large family day care homes are permitted as an accessory use for a dwelling located in a residential zone, subject to design review as outlined in Chapter 16.67 of this Title 16, and pursuant to the Cal. Health & Safety Code 1597.46(a)(2). (A) Operating standards. The following operating standards apply for large family day care homes.
(1) Parking.
(a) One parking space for each employee not residing in the Large Family Day Care Home dwelling, plus the two parking spaces required for the occupants of the single family residence as required in Chapter 16.23 (Off-Street Parking). (b) Three parking spaces for the loading and unloading of children. Where on-street parking is available along the street frontage of the Large Family Day Care Home site, only one of these spaces is required on site.
(c) Not more than three of the parking spaces required herein, located side by side, will be permitted within the required front yard setback area, provided that such parking space does not block a public sidewalk or right-of-way.
(d) Up to two of the required on-site parking spaces may be located in tandem behind the required parking spaces for the occupants of the dwelling or for employees. However, in no instance will such tandem parking result in more than one parking space behind each required occupant or employee parking space.
(2) Traffic control.
(a) Residences located on major arterial streets must provide a child dropoff/pick-up area designed to prevent vehicles from backing onto the major arterial roadway. (b) The width of the street fronting the Large Family Day Care may not be less than the State of California standard minimum street width, which is 40 feet. (3) Noise. Noise from outdoor play areas must be kept to a level consistent with residential neighborhoods. To reduce possible noise impacts, outdoor play/activity areas must only be used between the hours of 8:00 a.m. to 6:00 p.m. The operation of the facility must comply with residential noise standards contained in 16.19.070 (Performance Standards, Noise) and the Noise Element of the City of Santa Paula general plan.
(4) Separation. As a means to maintain the integrity of residential neighborhoods, new large family day care homes must not be located within 300 feet of an existing state licensed Large Family Day Care Home or within 300 feet of any other child day care center licensed to care for 13 or more children.
(5) Residential use. In accordance with Cal. Health & Safety Code 1597.43(a), the Large Family Day Care Home must not fundamentally alter the nature of the underlying residential use.
Accordingly, the following standards apply to large family day care homes:
(a) The residence must be in compliance with the development standards for the zone, including, but not limited to, minimum lot size, lot coverage, parking, fencing, and screening of trash receptacles.
(b) The proposed use must comply with all State Fire Marshal requirements for building and safety that apply to large family daycare homes, and with all local building and fire codes which apply to single-family residences.
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(c) The day care home must be the principal residence of the provider, and its use as a daycare home must be clearly incidental and secondary to the use of the property for residential purposes.
(d) The facility must be operated in a manner so as not to appear as a commercial operation, and the property must be maintained to preserve the general appearance and character of the residential neighborhood. Play equipment must not be located within the required front yard setback of the property so as to appear as a commercial child-care center. (e) No structural changes may be proposed that will alter the character of the building as a residence.
(f) The facility will be operated in a manner that will not adversely affect adjoining residences nor be detrimental to the character of the residential neighborhood. (g) Signs for the day care home must comply with Chapter 16.24 for signs in residential zones.
(h) The provider must secure a large family day care home license, as required by the State of California Department of Social Services. (B) Application procedures. An application for Design Review must be filed with the Planning Department pursuant to Chapter 16.67. Operation of a large family daycare is not subject to a home occupation permit; however, such facilities must secure a business license with the City of Santa Paula. (C) Pre-existing Large Family Day Care Homes.
(1) Those Large Family Day Care Homes that exist on the effective date of this title, and on that date have a valid Large Family Day Care Home license issued by the State of California, are considered legal non-conforming uses. Such nonconforming use may continue until the renewal date required for State of California licensing of the provider’s large family day care home. If the provider does not apply for approval of his/her large family day care home pursuant to this chapter by the date required for state licensing renewal, then the legal non-conforming use will be deemed to terminate. (2) In those instances where an application has been filed in a timely manner, and the Director finds that numerous conditions must be applied to make the non-conforming large family day care home consistent with this chapter, the Director may extend the valid non-conforming use status up to five years. This extension by the Director would be granted only as a means to give the applicant adequate time to satisfy the operating standards provided in this section. If the operating standards are not satisfied within the extension period granted by the Director, the legal non-conforming use will terminate.
(Ord. 1100, passed 7-6-04)
CHAPTER 16.30:ASSEMBLY HALLS
Section
16.30.010 Definitions
16.30.020 Compliance with permit requirements
16.30.030 Parking requirements
16.30.040 Compatibility with surrounding uses
§ 16.30.010 DEFINITIONS.
Unless the contrary is stated or clearly appears from the context, the following definitions govern the construction of the words and phrases used in this chapter:
ASSEMBLY HALL means a building, or portion of a building, used for large scale public or private gatherings of people. For example, and without limitation, assembly halls include private educational 359
facilities; religious institutions; clubs; lodges; and similar kinds of facilities whether available for public or private use.
(Ord. 1106, passed 6-21-04)
§ 16.30.020 COMPLIANCE WITH PERMIT REQUIREMENTS.
Any ancillary uses affiliated with an assembly hall must be specifically identified and permitted by a validly issued conditional use permit pursuant to this chapter or be separately permitted in accordance with the requirements for that zone. For example, and without limitation, a day care center or private school associated with an assembly hall must be identified as an authorized use in the conditional use permit.
(Ord. 1106, passed 6-21-04)
§ 16.30.030 PARKING REQUIREMENTS.
(A) Off-street parking must be provided in accordance with the requirements set forth in this title including, without limitation, landscaping requirements. (B) Where an assembly hall is established in a residential zone, the required front yard may not be used for parking vehicles.
(Ord. 1106, passed 6-21-04)
§ 16.30.040 COMPATIBILITY WITH SURROUNDING USES.
(A) All buildings, structures, and landscaping must be developed and maintained in a manner compatible with development on surrounding properties.
(B) For assembly halls located within or adjacent to a residential zone, the Planning Commission may condition hours of operation to ensure compatibility with adjacent residential uses. (Ord. 1106, passed 6-21-04)
CHAPTER 16.31:COMMUNITY CARE FACILITIES
Section
16.31.010 Definitions
16.31.020 CUP required
16.31.030 Findings required
§ 16.31.010 DEFINITIONS.
Unless the contrary is stated or clearly appears from the context, the following definitions govern the construction of the words and phrases used in this chapter. Words and phrases not given a meaning by this section have the meaning set forth in this title and as set forth in Cal. Health & Safety Code 1502.
COMMUNITY CARE FACILITY or GROUP HOME has the same meaning as set forth in Cal. Health & Safety Code 1502 where six or more persons live together.
OVERCONCENTRATION means the presence of one or more community care facilities, or similar uses, located within 300 feet of a proposed community care facility site. (Ord. 1107, passed 6-21-04)
§ 16.31.020 CUP REQUIRED.
Community care facilities require a conditional use permit issued pursuant to this title and may only be located in general commercial, residential, and mixed-use residential/commercial zones. 360
(Ord. 1107, passed 6-21-04)
§ 16.31.030 FINDINGS REQUIRED.
A conditional use permit may be issued if the Planning Commission, or, if applicable, the City Council finds as follows:
(A) Permitting the use would not result in an overconcentration of community care facilities within the area where the facility is proposed to be operated; (B) The proposed community care facility would not be located within one mile of an elementary school if a person convicted of a sex offense against a minor pursuant to Cal. Health & Safety Code 1564 would reside at the community care facility;
(C) The proposed community care facility can be developed and maintained in a manner compatible with surrounding land uses;
(D) Permitting the use would not otherwise be detrimental to public health, safety, or welfare, subject to the limitations of applicable law.
(Ord. 1107, passed 6-21-04)
CHAPTER 16.32:DRIVE-THROUGH FACILITIES
Section
16.32.010 Intent and purpose
16.32.020 Development standards and conditions
§ 16.32.010 INTENT AND PURPOSE.
The purpose of this section is to ensure that drive-through facilities do not result in adverse impacts on adjacent properties and residents or on surrounding neighborhoods due to customer and employee parking demand, traffic generation, noise, light, litter, or cumulative impact of such demands in one area, consistent with the goals, objectives, and policies of the General Plan. (Ord. 1100, passed 7-6-04)
§ 16.32.020 DEVELOPMENT STANDARDS AND CONDITIONS.
Drive-through facilities may be permitted only with approval of a Conditional Use Permit. The use must comply with the property development standards of the underlying district, as well as the provisions of this section.
(A) The minimum lot size of any drive-through facility must be 20,000 square feet. (B) The following standards apply:
(1) Drive-through facilities must have two-way driveways. (2) Minimum queuing distances must be provided as illustrated in Figure 66-1. (3) A parking and vehicular circulation plan encompassing adjoining streets and alleys must be submitted for review and approval by the City Engineer Services prior to approval of a Conditional Use Permit.
(4) A minimum of one outdoor trash receptacle must be provided on-site adjacent to each driveway exit. At least one
additional on-site outdoor trash receptacle must be provided for every ten required parking spaces. 361
(5) Employees must collect on-site and off-site litter including food wrappers, containers, and packaging from restaurant products generated by customers within a radius of 300 feet of the property at least once per business day.
(6) No noise-generating compressors or other such equipment must be placed on or near any property line adjoining any residential district or any property used for residential purposes. (7) Drive-up or drive-through speaker systems must not emit more than 50 decibels 4 feet between the vehicle and the speaker and must not be audible above the daytime ambient noise levels beyond the property boundaries. The system must be designed to compensate for ambient noise levels in the immediate area.
(8) On any lot where a drive aisle or driveway is located such that vehicle headlights will shine onto an adjacent property zoned for residential 231
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use, a screen wall must be provided to the satisfaction of the Director. (Ord. 1100, passed 7-6-04; Am. Ord. 1245, passed 9-4-12) Figure 66-1
Drive-through Facilities
CHAPTER 16.33:NEWSRACKS
Section
16.33.020 Purpose
Division 1: General Provisions
16.33.030 Definitions
16.33.040 Administration
16.33.050 Prohibitions
16.33.060 Encroachment permits
16.33.070 Notices
16.33.080 Fees
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Division 2: Permits
16.33.090 Application form and content
16.33.100 Change in application information
16.33.110 Time for reviewing application
16.33.120 Permit issuance
16.33.130 Permit denial
16.33.140 Notice of denial
16.33.150 Expedited review
16.33.160 Term; renewal
16.33.170 Uniform newsracks
Division 3: Permit Conditions; Newsrack Regulations
16.33.180 Permit conditions
16.33.190 Installation requirements
16.33.200 Prohibited areas
16.33.210 Maintenance
16.33.220 Harmful matter
Division 4: Appeal
16.33.230 Right of administrative review
16.33.240 Time for administrative review
16.33.250 Commencement of administrative review
16.33.260 Administrative review
16.33.270 City Manager decision final
Division 5: Enforcement
16.33.280 Minor violations
16.33.290 Notice of hearing for newsrack removal
16.33.300 Hearing procedure
16.33.310 Compliance with removal order
16.33.320 Recovering city expenses
16.33.330 Emergency removal
16.33.340 Abandonment; disposal
16.33.350 Enforcement
16.33.360 Liability for fines
Division 6: Preexisting Newsracks
16.33.370 Existing newsracks
§ 16.33.020 PURPOSE.
This chapter is adopted in accordance with California Constitution Article XI, 7, for the purpose of establishing uniform regulations for allowing newsracks to be placed within the public right-of-way. The 363
city’s intent in adopting this chapter is to establish reasonable time, place, and manner restrictions on the commercial use of public right-of- ways in order to preserve public health, safety, and welfare. (Ord. 1101, passed 6-21-04)
DIVISION 1: GENERAL PROVISIONS
§ 16.33.030 DEFINITIONS.
Unless the contrary is stated or clearly appears from the context, the following definitions will govern the construction of the words and phrases used in this chapter.
ADMINISTRATOR means the City Manager or designee.
BLINDER RACK means any opaque material placed in front of the harmful matter and within the publication vending machine which prevents exposure to public view.
DRIVEWAY means a surfaced area which is designed or used for vehicular access between a lot and a public street.
HARMFUL MATTER means matter which when taken as a whole, predominantly appeals to the prurient interests of the average person, applying contemporary statewide standards, meaning a shameful or morbid interest in nudity, sex, or excretion, and which is patently offensive to the prevailing standards in the adult community as a whole with respect to what is suitable material for minors, and lacks significant literary, artistic, political, educational, or scientific value for minors. When it appears from the nature of the matter or the circumstances of its dissemination, distribution or exhibition that it is designed for clearly defined deviant sexual groups, the predominant appeal of the matter must be judged with reference to its intended recipient group.
LOT has the same meaning as set forth in the zoning regulations of this Code.
NEWSRACK means any self-service coin- operated box, container, storage unit or other dispenser designed, used or maintained for the display or sale of any written or printed material, including, without limitation, newspapers, news periodicals, magazines, books, pictures, photographs and records.
PERMIT means a permit issued to a person pursuant to this chapter allowing a newsrack to be installed within a specifically designated portion of a public right-of-way. PERMIT may also include a uniform newsrack permit issued in accordance with this chapter.
PERMITTEE means a person or entity to whom a permit was issued pursuant to this chapter.
PUBLIC RIGHT-OF-WAY means any city street, sidewalk, pedestrian path, bike path or any other “public way,” as defined by Cal. Sts. & High. Code 18609, and any successor statute.
PUBLIC STREET means any city street or public right-of-way including, without limitation, the curb and gutter.
UNIFORM NEWSRACK means a newsrack of a style, size and color designated by Council by resolution for permanent installation.
(Ord. 1101, passed 6-21-04)
§ 16.33.040 ADMINISTRATION.
The administrator is authorized to receive applications, issue and revoke permits, and otherwise administer and implement this chapter.
(Ord. 1101, passed 6-21-04)
§ 16.33.050 PROHIBITIONS.
It is unlawful for any person to install, place or maintain a newsrack or uniform newsrack in any public right-of-way that violates any provision of this chapter including, without limitation, failing to obtain a permit issued pursuant to this chapter.
364
(Ord. 1101, passed 6-21-04)
§ 16.33.060 ENCROACHMENT PERMITS.
Persons who obtain a permit pursuant to this chapter are not required to also obtain an encroachment permit under this code to install newsracks.
(Ord. 1101, passed 6-21-04)
§ 16.33.070 NOTICES.
(A) Where the provisions of this chapter require that an applicant/permittee be served with notice, such notice is deemed served when personally delivered to the applicant/permittee; when deposited in first class United States Mail, addressed to the applicant/permittee’s last known address; or when sent via facsimile to the applicant/permittee’s last known facsimile number. (B) Unless otherwise provided, written notification to a permittee/applicant of a permit decision will state with particularity the basis for such decision. (Ord. 1101, passed 6-21-04)
§ 16.33.080 FEES.
All fees applicable to this chapter are established by City Council resolution. (Ord. 1101, passed 6-21-04)
DIVISION 2: PERMITS
§ 16.33.090 APPLICATION FORM AND CONTENT.
(A) Permit applications must be filed by a natural person in the name of each applicant proposing to obtain a permit.
(B) Every application must be signed by the applicant, or the applicant’s authorized representative, under penalty of perjury.
(C) Permit applications, and permits, will be in a form prescribed by the administrator and contain all of the following information:
(1) The name, mailing address, and daytime and evening telephone numbers of the person filing the application;
(2) The proposed location for the newsrack; and
(3) Such additional information as the administrator may reasonably require to process the application.
(D) Applications must be accompanied by a permit fee.
(Ord. 1101, passed 6-21-04)
§ 16.33.100 CHANGE IN APPLICATION INFORMATION.
(A) Whenever any change occurs in the information contained in the permit, the permittee must give the administrator written notice of the change within 30 days of the date that the change becomes effective.
(B) If a permittee fails to give the administrator timely written notice of a change in the information contained in the application, the administrator may charge the permittee an additional administrative fee.
(Ord. 1101, passed 6-21-04)
§ 16.33.110 TIME FOR REVIEWING APPLICATION.
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After receiving a completed application, the administrator must review the application and either issue or deny a permit within 30 days.
(Ord. 1101, passed 6-21-04)
§ 16.33.120 PERMIT ISSUANCE.
(A) The administrator must issue a permit if:
(1) The application was complete in accordance with this chapter; (2) There are no grounds for denying the permit; and
(3) The applicant accepts the permit in writing.
(B) Use of any permit issued pursuant to this chapter must conform to the permit conditions of this chapter.
(Ord. 1101, passed 6-21-04)
§ 16.33.130 PERMIT DENIAL.
A permit can be denied for the following reasons:
(A) The application is incomplete;
(B) The applicant failed to provide reasonable supplemental application information requested by the administrator;
(C) Information submitted by the applicant is materially false; (D) The application is submitted by a person with a suspended permit or whose permit was revoked; or
(E) The application seeks authorization for a newsrack that is prohibited by this code or unlawful under any other local, state, or federal law.
(Ord. 1101, passed 6-21-04)
§ 16.33.140 NOTICE OF DENIAL.
Where the administrator denies a permit, the administrator must serve notice to the applicant. (Ord. 1101, passed 6-21-04)
§ 16.33.150 EXPEDITED REVIEW.
Pursuant to Cal. Civ. Proc. Code 1094.8(c), and any successor statute or regulation, the permits under this chapter are designated for expedited judicial review pursuant to the procedure set forth in Cal.
Civ. Proc. Code 1094.8, or any successor statute or regulation. (Ord. 1101, passed 6-21-04)
§ 16.33.160 TERM; RENEWAL.
Unless suspended or revoked, permits issued pursuant to this chapter have a term of one year.
Permits must be renewed not later than 30 days before they expire in order to be maintained. Should a permit expire, the permittee must comply with this chapter to obtain a new permit. (Ord. 1101, passed 6-21-04)
§ 16.33.170 UNIFORM NEWSRACKS.
(A) By resolution, the Council may from time to time establish uniform newsrack locations.
The Council must first hold a public hearing, for which notice must be sent at least 15 days in advance to all persons requesting notice, or whose name and address appears on an existing newsrack in the 366
subject location, and after such hearing must find that the location carries a substantial volume of pedestrian or vehicular traffic, that uniform newsracks are feasible at the location, and that it is in the public interest for such newsracks.
(B) The resolution must describe the location; designate the particular point(s) at that location where uniform newsracks may be installed; specify the maximum number of uniform newsracks to be allowed at the location; and specify the style, size, color or other attributes required of uniform newsracks at the location. Such specification should not require uniform newsracks made by any particular manufacturer. The resolution may direct the administrator to install a kiosk(s), pedestal(s), or other support structure to accommodate a stated number of newsracks. (C) No person may install a uniform newsrack at a uniform newsrack location without first obtaining a uniform newsrack permit from the administrator. (D) Upon the adoption of a resolution by Council establishing a uniform newsrack location, interested persons may apply for such permit. The administrator must hold all such applications for 30 days after the date the resolution was adopted and may then issue all permits applied for up to the maximum number established, if any, in the resolution.
(E) Permits are determined by a random selection process. The first application identified by random selection will be issued a permit for the most favorable location, and so on until the maximum number, if any, is reached. Applicants seeking permits for more than one newsrack in a single location will be allotted adjacent spaces. The remaining applications must be denied and the applicants notified.
Where fewer applications are received than the maximum number of positions allowed by the resolution, permits for the remaining positions may be allotted on a first-come, first-served basis. (F) Each year, during the month of December, the administrator must draw lots in the above manner for permits for the next calendar year from among those holding permits and any new applications received by December 1.
(G) The Council may at any time, on its own motion or upon request of any person, by resolution, increase the maximum number of available positions. In the event of such increase, or in the event a position becomes available by abandonment or otherwise, such position(s) must be allotted by the above procedure.
(H) Upon being granted a permit, the applicant may permanently install a uniform newsrack as described in the resolution, either affixing it to the pavement or ground, or in the event the resolution directs the administrator to install support structures, then to such support structure. (I) A uniform newsrack permit will, in addition to all other provisions of this section, be conditioned with all other requirements of this chapter. (Ord. 1101, passed 6-21-04)
DIVISION 3: PERMIT CONDITIONS; NEWSRACK REGULATIONS
§ 16.33.180 PERMIT CONDITIONS.
Permits issued pursuant to this chapter have the following general conditions:
(A) Permittees must maintain a valid business license issued pursuant to this code; (B) Permittees must pay all fees required by this chapter. (C) Newsracks cannot unreasonably:
(1) Interfere with or impede the flow of pedestrian or vehicular traffic. (2) Interfere with or impede ingress or egress from any residence or place of business located adjacent to a public right-of-way.
(3) Interfere with any public utility facility located within the public right-of-way or in close proximity thereto.
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(D) Except as otherwise provided, newsracks must be placed within the public right-of-way. (E) Permittees must enter into a hold harmless agreement with the city which will, in part, indemnify the city, its officers, employees, and agents, from any liability arising from a permittee’s activities in a form approved by the City Attorney’s office. (F) Permits are not transferable to another person or to another location. (G) The name, address, and telephone number of the permittee must be permanently affixed to newsracks.
(H) Each newsrack must have affixed to it in a readily visible place a notice setting forth the name and address of the person responsible for maintaining the newsrack and a working telephone number to call to report a malfunction, or to obtain a refund in the event of a malfunction of the coin-return mechanism.
(I) Each newsrack must be maintained in accordance with this Code. (Ord. 1101, passed 6-21-04)
§ 16.33.190 INSTALLATION REQUIREMENTS.
Each newsrack must comply with each of the following requirements:
(A) Size. No newsrack may exceed five feet in height, 30 inches in width, or two feet in depth.
(B) Placement. Newsracks may only be placed in a public right-of-way near a curb or adjacent to a wall of a building. The rear of newsracks placed near a curb must be placed not less than 18 inches nor more than 24 inches from the face of the curb. The rear of newsracks placed parallel to a wall or building must be placed not more than six inches from the wall or building. No newsrack may be placed or maintained in a public right-of-way opposite one or more newsracks. (C) Groups of newsracks. Newsracks may be placed next to each other, provided that no group of newsracks must extend more than ten feet six inches along a curb or wall and a space of no more or less than three feet must separate each group of newsracks from another group of newsracks.
There may be no more than three of the above described groups of newsracks located on a public rightof-way within a block. (D) Anchoring. Each newsrack must be securely anchored to the ground or sidewalk. (E) Each newsrack that require patrons to pay for a newspaper must be equipped with a working coin-return mechanism to permit a person using the machine to obtain an immediate refund in the event a person is unable to receive the publication paid for. The coin-return mechanisms must be maintained in good working order.
(Ord. 1101, passed 6-21-04)
§ 16.33.200 PROHIBITED AREAS.
Notwithstanding any other provision of this chapter, no newsrack may be placed, installed, used or maintained as follows:
(A) Within one foot of any area improved with lawn, flowers, shrubs or trees; (B) Within three feet of:
(1) The entrance or exit to any building;
(2) Any display window in any building abutting a sidewalk or public right-of-way. No newsrack may be located directly in front of any display window of any building abutting a public right- ofway without the written consent of the person or entity legally in occupancy or otherwise in control of the premises on which the display window is located. Proof of such consent must be included in the permit 368
application. If such consent is withdrawn, any newsrack placed in front of a display window must be removed within 14 days of the date of written notice from the city to the owner of such newsrack. (C) Within five feet of:
(1) Any marked crosswalk;
(2) The curb return of any intersecting public streets; (3) Any fire hydrant, fire call box, police call box or any other emergency facility; (4) Any designated bus stop area or any sign marking a designated bus stop; (5) Bus bench; or
(6) Any curb painted blue, pursuant to the provisions of Cal. Veh. Code 21458; (D) Within ten feet of any driveway;
(E) In any location whereby the clear passage on a sidewalk for pedestrian traffic is reduced to less than five feet;
(F) Within any public street;
(G) Within 100 feet of a newsrack containing the same edition of the same publication, except where bulk of a particular edition is such that more than one rack is required, in which case said newsracks must be placed side-by-side;
(H) Within 300 feet of a uniform newsrack location, except for any period, not to exceed 30 days, during which a uniform newsrack permit has been granted at the location but the applicant has been unable to obtain a uniform newsrack;
(I) Chained or otherwise attached to any fixture. All newsracks must be permanently affixed to the pavement or otherwise anchored to a concrete base. Newsracks anchored to concrete bases must have a minimum weight of 100 pounds empty. Uniform newsracks which have been established and permitted pursuant to this chapter may be permanently affixed to the pavement or authorized support structures as established by City Council resolution.
(J) Be used for advertising, selling or storing material other than that dealing with the display, sale or purchase of the publication sold therein.
(K) No newsrack may remain empty for a period of 30 consecutive days. (Ord. 1101, passed 6-21-04)
§ 16.33.210 MAINTENANCE.
Each newsrack must be maintained in a clean and attractive condition and in good repair at all times, and no issue or edition of any publication may be allowed to remain in any such newsrack for a period exceeding the publication period of the material offered for sale therein or 30 consecutive calendar days after the date of the initial issuance or publication of such material, whichever is lesser. Specifically, but without limiting the generality of the foregoing, each newsrack must be reasonably free of dirt and grease; be reasonably free of chipped, faded, peeling and cracked paint; be reasonably free of rust and corrosion; have no broken cracked, dented, blemished or discolored plastic or glass parts; have no torn, peeling or fading paper or cardboard parts or inserts; and have no broken or misshapen structural parts. (Ord. 1101, passed 6-21-04)
§ 16.33.220 HARMFUL MATTER.
Pursuant to Cal. Penal Code 313.1(d), any harmful matter displayed in a public place from which minors are not excluded must be concealed with blinder racks, so that the lower two-thirds of the material is not exposed to view.
(Ord. 1101, passed 6-21-04)
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DIVISION 4: APPEALS
§ 16.33.230 RIGHT OF ADMINISTRATIVE REVIEW.
Except as otherwise provided, an applicant may request administrative review of the administrator’s decisions pursuant to this chapter including, without limitation, decisions regarding permit denial. (Ord. 1101, passed 6-21-04)
§ 16.33.240 TIME FOR ADMINISTRATIVE REVIEW.
(A) Except as otherwise provided, a request for review must be commenced within five days from the date on which written notice of the administrator’s decision is served on the applicant/permittee. (B) If a request is untimely, the administrator may, nevertheless, extend the time for commencing such review for good cause shown, but in no event may a request be filed more than 30 days after notice was served.
(Ord. 1101, passed 6-21-04)
§ 16.33.250 COMMENCEMENT OF ADMINISTRATIVE REVIEW.
(A) A request for administrative review must be on a form provided by the administrator and contain the following information:
(1) The name, address and telephone number of the person making the request; (2) A description of the decision, determination or order which is the subject of the review, and the date such decision, determination or order was made or issued; (3) A brief description of all grounds for making the request; and (4) Such other information as may be required by the administrator. (B) A request for administrative review must be accompanied by a fee in an amount determined by City Council resolution.
(Ord. 1101, passed 6-21-04)
§ 16.33.260 ADMINISTRATIVE REVIEW.
(A) Upon request for administrative review being filed, the administrator will provide a copy of the notice to the City Manager within two business days. (B) Upon receiving a request for review from the administrator, the City Manager will review the request and, within ten business days of receiving the request notice, provide the appellant with a written notification that:
(1) The administrator’s decision is affirmed;
(2) The administrator’s decision is modified;
(3) The administrator’s decision is reversed and a permit is issued. Under such circumstances, the fee collected for an appeal must be returned to the permittee within 30 days of the City Manager’s decision.
(C) The City Manager may, but is not required to, conduct a hearing at a time and place determined at the City Manager’s sole discretion. In the event of a hearing, the rules of evidence will not apply. The City Manager may consider such evidence as the City Manager may deem reliable. The City Manager may adopt such additional reasonable rules of procedure that may facilitate the progression of such a hearing.
(Ord. 1101, passed 6-21-04)
§ 16.33.270 CITY MANAGER DECISION FINAL.
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The City Manager’s decision is final. There is no right to appeal a decision to the City Council. Any court challenge must be filed within 90 calendar days of the City Manager’s decision in accordance with Cal. Civ. Proc. Code 1094.6.
(Ord. 1101, passed 6-21-04)
DIVISION 5: ENFORCEMENT
§ 16.33.280 MINOR VIOLATIONS.
In the case of minor violations of this chapter that can be corrected at the site, any city employee, as an alternative to removing the newsrack, is authorized to correct the violation summarily. The permittee will bear the cost of any such correction.
(Ord. 1101, passed 6-21-04)
§ 16.33.290 NOTICE OF HEARING FOR NEWSRACK REMOVAL.
(A) Upon discovering a newsrack that lacks a permit or otherwise violates this chapter, the administrator may take action to remove such a newsrack in accordance with this chapter. (B) To initiate proceedings for removing newsracks, the administrator will cause written notice to be mailed and conspicuously posted on the newsrack. Notice must be titled in letters at least one inch in height and read substantially as follows:
Removal Hearing Notice
On_________, 20__, the City of Santa Paula will determine whether this Newsrack should be removed in accordance with the Santa Paula Municipal Code (“SPMC”). If the Newsrack is found to violate the SPMC and is not promptly removed by the owner, then the City may remove it and impound it at the owner’s expense. If the City removes the Newsrack, all costs associated with such removal, impoundment, and storage, must be paid by the owner before the Newsrack is returned. The alleged violations consist of the following:
____________________________________________________________________________________ All persons having any objection to, or interest in, said matters should attend a hearing to be conducted by the City, to be held at _________on ___________, _________at the hour of__________.m., when their testimony and evidence will be heard and given due consideration.
Dated:
______________________
Administrator
(C) Mailing/posting. Notice of the hearing will be served by posting the newsrack and by registered or certified mail (postage fully prepaid) addressed to the newsrack owner. The notice must be posted on the newsrack and mailed at least ten days before the hearing date. Proof of posting and mailing will be by declaration. Failure of any person to receive the notice will not affect the validity of any set forth in this chapter.
(D) The administrator is not required to wait ten days to proceed if the intent to permanently abandon or vacate a newsrack or uniform newsrack location is confirmed in writing by the owner of such newsrack.
(Ord. 1101, passed 6-21-04)
§ 16.33.300 HEARING PROCEDURE.
(A) The hearing must be conducted by a hearing officer selected by the administrator. At the time set for such hearing, the hearing officer will conduct a hearing to determine, based upon the evidence presented, whether the newsrack violates this chapter. At the hearing, the hearing officer will accept reliable evidence from any person if such evidence bears on the issue of whether the newsrack violates this chapter. The hearing officer is authorized to take testimony and is authorized to administer oaths or affirmations under the Cal. Civ. Proc. Code 2093(a). Based upon the evidence submitted 371
including, without limitation, any written staff reports regarding alleged violations, the hearing officer will determine whether or not the newsrack violates this chapter and should be removed. (B) As soon as is practicable following the close of such hearing, the hearing officer will render a decision on the matter. If the newsrack is found to violate this chapter, the hearing officer will issue an order requiring the newsrack to be removed within a reasonable time and manner as set forth in the order. The hearing officer will promptly give written notice to the responsible person and any other interested person who requests, in writing, notice of such decision, including a copy of the order. The order issued by the hearing officer will be deemed a final order and may be judicially reviewed pursuant to Cal. Civ. Proc. Code 1094.6. There is no right to a City Council appeal. (Ord. 1101, passed 6-21-04)
§ 16.33.310 COMPLIANCE WITH REMOVAL ORDER.
At no cost to the city, the newsrack will comply with all of the provisions of a removal order. If the newsrack owner fails, for any reason, to comply with a removal order within the time required in the order, the administrator will cause the newsrack to be removed and impounded by city forces or by private contractor.
(Ord. 1101, passed 6-21-04)
§ 16.33.320 RECOVERING CITY EXPENSES.
The administrator will keep an account of the costs, including incidental expenses, of removing, impounding, and storing such newsracks. Newsrack owners must pay the city all reasonable costs associated with the noticing, removal, and storage of the newsrack before regaining possession of such newsracks.
(Ord. 1101, passed 6-21-04)
§ 16.33.330 EMERGENCY REMOVAL.
Notwithstanding any other provision of this chapter, whenever the administrator determines that a newsrack constitutes an immediate threat or hazard or danger to persons or property, the administrator, without observing procedures set forth in this chapter with reference to newsrack removals, will immediately cause such a newsrack to be removed in such manner as the administrator determines is reasonably required. If the administrator deems it feasible, the administrator may attempt to give the newsrack owner verbal notice of the danger and the proposed timing and removal of the newsrack.
Where such removal is ordered, the administrator will, after completing the removal of the newsrack, comply with the provisions of this chapter.
(Ord. 1101, passed 6-21-04)
§ 16.33.340 ABANDONMENT; DISPOSAL.
The owner of any impounded newsrack who fails to obtain the release of the newsrack within 30 days after impoundment, is deemed to have abandoned the newsrack, and the newsrack may be disposed of by the administrator in the time and manner prescribed by law, for the disposal of abandoned personal property.
(Ord. 1101, passed 6-21-04)
§ 16.33.350 ENFORCEMENT.
(A) In addition to the remedies set forth in this chapter, violations of a permit may be enforced as follows:
(1) Prosecution as infractions or misdemeanors at the City Attorney’s discretion; (2) Abated as a public nuisance; or
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(3) Enjoined as unfair business practices that are presumed to nominally damage each and every resident of the community in which the permittee operates. (B) The remedies provided by this chapter are cumulative and in addition to any other criminal or civil remedies.
(Ord. 1101, passed 6-21-04)
§ 16.33.360 LIABILITY FOR FINES.
All fines, fees, penalties, and interest imposed pursuant to this chapter are civil debts owed to the city by the person fined. In the event that judicial action is necessary to compel payment of any debt owed to the city, the person or persons subject to the fine are also liable for the costs of suit and attorney’s fees incurred by the city to collect the fine.
(Ord. 1101, passed 6-21-04)
DIVISION 6: PREEXISTING NEWSRACKS
§ 16.33.370 EXISTING NEWSRACKS.
(A) Any person who owns or is entitled to possession of any newsrack located within a public right-of-way upon the effective date of this chapter must either remove the newsrack or obtain a permit pursuant to this chapter within one calendar year after the effective date of this chapter. (B) If any such newsrack remains in place without a permit after this time period, the administrator may begin removal proceedings as provided in this chapter. (C) If the newsrack owner does not comply with the administrator’s notice of removal, or does not appeal it, within the time set in such notice, the administrator may remove and impound the newsrack.
The owner or other persons entitled to possession of the newsrack may obtain possession of such impounded newsrack in the time and manner set forth in this chapter. (Ord. 1101, passed 6-21-04)
CHAPTER 16.34:RECYCLING FACILITIES
Section
16.34.010 Permits required
16.34.020 Permits for multiple sites
16.34.030 Criteria and standards – Small collection facilities
16.34.040 Criteria and standards – Reverse vending machines
16.34.050 Criteria and standards – Large collection facilities
16.34.060 Criteria and standards – Processing facilities § 16.34.010 PERMITS REQUIRED.
Recycling facilities as defined in 16.04.190 of this Title 16 must obtain permits for operation as set forth in Table 70-1 and as subject to the land use regulations for specific zone districts set forth in Chapters 16.05 through 16.20 (Zoning Districts, Land Use Regulations and Development Standards) of this Title 16.
TABLE 34-1
Permits for Recycling Facilities
Type of Facility Permit Required
373
Reverse Vending Machines Design Review, unless within a fully enclosed building, whereby no permit is required
Collection Facility - Small Design Review
Collection Facility - Large Conditional Use Permit
Processing Facility - Light Conditional Use Permit
Processing Facility - Heavy Conditional Use Permit
(Ord. 1100, passed 7-6-04)
§ 16.34.020 PERMITS FOR MULTIPLE SITES.
A single Design Review application may be filed to allow more than one reverse vending machine(s) and/or small collection facility located on different sites under the following condition:
(A) The operator of each of the proposed facilities is the same; (B) The proposed facilities are determined by the Director to be similar in nature, size, and intensity of activity; and
(C) All applicable criteria and standards set forth in §16.34.030 and 16.34.040 below are met for each proposed facility.
(Ord. 1100, passed 7-6-04)
§ 16.34.030 CRITERIA AND STANDARDS - SMALL COLLECTION FACILITIES.
Small collection facilities must comply with the following conditions:
(A) All such facilities must be established in conjunction with an existing commercial use or community service facility that is in compliance with the zoning, building and fire codes of the city. (B) All such facilities must be no larger than 500 square feet and provide no more than five parking spaces, not including any space that will be periodically needed for removal of materials or exchange of containers.
(C) All such facilities must be set back at least ten feet from any street line and must not obstruct pedestrian or vehicular circulation.
(D) All such facilities must accept only glass, metals, plastic containers, papers and reusable items. Used motor oil may be accepted with permission of the city. (E) No power-driven processing equipment may be used except by reverse vending machines.
(F) All such facilities must use containers that are constructed and maintained with durable waterproof and rustproof material, covered when site is not attended, secured from unauthorized entry or removal of material, and of a capacity sufficient to accommodate materials collected and collection schedule.
(G) All recyclable materials must be stored in containers or in the mobile unit vehicle. No materials may be left outside of containers when the attendant is not present. (H) All such facilities must be maintained free of litter and any other undesirable materials.
Mobile facilities, at which truck or containers are removed at the end of each collection day, must be swept at the end of each collection day.
(I) Attended facilities located within 100 feet of a property zoned or occupied for residential use may operate only between the hours of 9:00 a.m. and 7:00 p.m. (J) Containers for the 24-hour donation of materials must be at least 30 feet from any property zoned or occupied for residential use unless there is a recognized service corridor and acoustical shielding between the containers and the residential use. (K) Containers must be clearly marked to identify the type of material that may be deposited. 374
(L) The facility must be clearly marked to identify the name and telephone number of the facility operator and the hours of operation, and display a notice stating that material must not be left outside the recycling enclosure or containers.
(M) Mobile recycling units must have an area clearly marked to prohibit other vehicular parking during hours when the mobile unit is scheduled to be present. (N) If the permit expires without renewal, the collection facility must be removed from the site on the day following permit expiration.
(Ord. 1100, passed 7-6-04)
§ 16.34.040 CRITERIA AND STANDARDS - REVERSE VENDING MACHINES.
Reverse vending machine(s) must comply with the following standards:
(A) Reverse vending machines must be established in conjunction with a commercial use or community service facility that is in compliance with the zoning, building and fire codes of the city. (B) Reverse vending machines must be located within 30 feet of the entrance to the commercial structure and must not obstruct pedestrian or vehicular circulation. (C) Reverse vending machines must not occupy parking spaces required for the primary use. (D) Reverse vending machines must not occupy more than 50 square feet of floor space per installation, including any protective enclosure, and must be not more than 8 feet in height. (E) Reverse vending machines must be constructed and maintained with durable waterproof and rustproof material.
(F) Reverse vending machines must be clearly marked to identify the type of material to be deposited, operating instruction, and the identity and phone number of the operator or responsible person to call if the machine is inoperative.
(G) Reverse vending machines must accept only glass, metals, plastic containers, papers or reusable items.
(H) Reverse vending machines will be permitted to have up to four square feet of sign area per machine, exclusive of operating instructions.
(I) All reverse vending machines must be maintained in a clean, litter-free condition on a daily basis.
(J) Operating hours must be at least the operating hours of the host use. (K) Reverse vending machines must be illuminated to ensure comfortable and safe operation if operating hours are between dusk and dawn.
(Ord. 1100, passed 7-6-04)
§ 16.34.050 CRITERIA AND STANDARDS - LARGE COLLECTION FACILITIES.
All large collection facilities must comply with the following standards:
(A) The facility must be screened from the public right-of-way by operating in an enclosed building or:
(1) Within an area enclosed by an opaque fence at least six feet high with landscaping to the satisfaction of the Director;
(2) At least 150 feet from property zoned or planned for residential use; and (3) Meets all applicable noise standards in this Title 16. (B) Setbacks and landscape requirements will be those provided for the zoning district in which the facility is located.
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(C) All exterior storage of material must be in sturdy containers that are covered, secured, and maintained in good condition or baled or palletized. Storage containers for flammable material must be constructed of nonflammable material. Oil storage must be in containers approved by the Fire Marshal. No storage, excluding truck trailers and overseas containers, will be visible above the height of the fencing.
(D) The site must be maintained free of litter and any other undesirable materials, and will be cleaned of loose debris on a daily basis.
(E) If the facility is located within 500 feet of property zoned, planned, or occupied for residential use, it must not be in operation between the hours of 7:00 p.m. and 7:00 a.m. (F) Any container provided for after-hours donation of recyclable materials will be at least 50 feet from any property zoned or occupied for residential use, must be of sturdy, rustproof construction, must have sufficient capacity to accommodate materials collected, and must be secure from unauthorized entry or removal of materials.
(G) Donation areas will be kept free of litter and any other undesirable material, and the containers will be clearly marked to identify the type of material that may be deposited. The facility must display a notice stating that material must not be left outside the recycling containers. (H) Facility will be clearly marked with the name and phone number of the facility operator and the hours of operation; identification and informational signs will meet the standards of the zone; and directional signs, bearing no advertising message, may be installed with the approval of the Director, if necessary, to facilitate traffic circulation or if the facility is not visible from the public right-of-way. (I) Power-driven processing, including aluminum foil and can compacting, baling, plastic shredding, or other light processing activities necessary for efficient temporary storage and shipment of material, may be approved through the Conditional Use Permit process. (Ord. 1100, passed 7-6-04)
§ 16.34.060 CRITERIA AND STANDARDS - PROCESSING FACILITIES.
Processing facilities must comply with the following conditions:
(A) Processors must be operated only within a wholly enclosed building except for incidental storage.
(B) Power-driven processing will be permitted, provided all noise level requirements are met. (C) A processing facility may accept used motor oil for recycling from the generator in accordance with Cal. Health & Safety Code 25250.11.
(D) Setbacks and landscaping requirements will be those provided for the zoning district in which the facility is located.
(E) All exterior storage of material must be in sturdy containers or enclosures that are covered, secured, and maintained in good condition, baled or palletized. Storage must be in containers approved by the Fire Marshal. No storage, excluding truck trailers and overseas containers, will be visible above the height of the fencing.
(F) The site must be maintained free of litter and any other undesirable materials, will be cleaned of loose debris on a daily basis, and will be secured from unauthorized entry and removal of materials when attendants are not present.
(G) One parking space will be provided for each commercial vehicle operated by the processing center. Parking requirements will otherwise be as mandated by the zone in which the facility is located.
(H) If the facility is located within 500 feet of property zoned or planned for residential use, the facility must not be in operation between the hours of 7:00 p.m. and 7:00 a.m. The facility will be administered by on-site personnel during the hours the facility is open. 376
(I) Any containers provided for after-hours donation of recyclable materials will be at least 50 feet from any property zoned or occupied for residential use; must be of sturdy, rustproof construction; must have sufficient capacity to accommodate materials collected; and must be secure from unauthorized entry or removal of materials.
(J) Donation areas must be kept free of litter and any other undesirable material. The containers must be clearly marked to identify the type of material that may be deposited. The facility must display a notice stating that material must not be left outside the recycling containers. (K) Sign requirements will be those provided for the zoning district in which the facility is located. In addition, the facility will be clearly marked with the name and phone number of the facility operator and the hours of operation.
(L) Dust, fumes, smoke, vibration, and odor control must comply with the requirements of Chapter 16.21 (Performance Standards) of this Title 16. (Ord. 1100, passed 7-6-04)
CHAPTER 16.35:SERVICE STATIONS
Section
16.35.010 Purpose and intent
16.35.020 Condition Use Permit applicability and requirements
16.35.030 Permitted uses, activities, and services
16.35.040 Location
16.35.050 Development standards
16.35.060 Signage
16.35.070 Conflict of development standard provisions
§ 16.35.010 PURPOSE AND INTENT.
These regulations are established to promote and preserve the public health, safety, convenience, and general welfare by ensuring that automobile service stations are located and operated so as not to create increased pedestrian and vehicular traffic hazards and not be detrimental to the ordinary maintenance, development, and redevelopment of the surrounding area. (Ord. 1100, passed 7-6-04)
§ 16.35.020 CONDITIONAL USE PERMIT APPLICABILITY AND REQUIREMENTS. (A) A Conditional Use Permit will be required for automobile service stations under the following conditions:
(1) Construction of new service stations.
(2) Reopening of a service station that has been vacant for a period of at least six months.
(3) Renovation, alteration or additions to existing service stations when such change exceeds 50% of the value of the existing building or structure as officially established by the latest records of the County Assessor of the County;
(B) Service stations on properties annexed to the city which do not comply with permitted activity and services, or the requirement regarding trash enclosure, storage space and landscaping, will be considered nonconforming and subject to nonconforming provisions as set forth in Chapters 16.53 through 16.53 (Nonconformities) of this Title 16.
377
(C) All new, reopened, renovated, or annexed service stations, or those requesting any substantial change in services rendered, will be required to meet all of the requirements of this chapter unless this chapter specifically states that the Planning Commission may modify that particular requirement.
(Ord. 1100, passed 7-6-04)
§ 16.35.030 PERMITTED USES, ACTIVITIES, AND SERVICES.
In addition to the sale of motor fuels, activities and services will be permitted, limited or precluded as set forth in this section.
(A) Rental of vehicles.
(1) The rental of automobiles, trucks, trailers, and similar vehicles may be permitted, provided the site contains adequate space for display and/or parking and further provided such rentals are displayed and/or parked in only an area so designated as part of the conditional use permit. (2) Unless expressly stated otherwise as part of the conditional use permit, displaying and/or parking of rentals must not occur within 20 feet of any street frontage property line. (B) Storage and display of merchandise.
(1) All new and used merchandise must be stored and displayed only within the service station building, except new and reconditioned tires, batteries, accessories, and lubrication items which are maintained in movable or enclosed cabinets or racks designed for the display and sale of said merchandise may be displayed outside.
(2) The location of enclosed cabinets and racks must be designated on the conditional use permit.
(3) Products which render an express convenience of service to the customer, such as pump island racks containing oil cans and additives, may be displayed under the pump island canopy when maintained in a cabinet or display rack. Such cabinets or racks must not obstruct vehicular access to the pump island.
(C) Body work, tire recapping and rental of heavy equipment prohibited. All painting, welding, body and fender repair, tire recapping and the rental of other heavy equipment and the sale and rental of other merchandise, other than that specified in this division, is expressly prohibited. (D) Vending machines. Vending machines will be permitted only per the standards set forth in Chapter 16.36 of this Title 16.
(E) Temporary promotions.
(1) The sale and storage of merchandise not customarily related to the operation and maintenance of motor vehicles will be permitted with a Temporary Use Permit and subject to the requirements set forth in Chapter 16.228 (Temporary Use Permits) of this Title 16. (2) Subparagraph (1) above does not apply to items which are provided free or at a reduced price to the customers with purchase of products from the service station. (F) Public telephones. Public telephones are permitted, provided they will not be within 20 feet of any street frontage property line and are located to be visible from the public right-of-way and accessible on a 24-hour basis.
(G) Restriction on merchandise sale and rental. The sales and rental of any type of merchandise not related to the motoring public is prohibited. (H) Tow truck and service vehicles. Tow trucks and similar service vehicles may be allowed if approved as part of the conditional use permit. Such vehicles must be parked only in an area expressly provided and approved as part of the conditional use permit. 378
(I) Use as commercial parking lot. The use of a service station as a commercial parking lot is prohibited, unless expressly approved as part of the conditional use permit. (J) Storage and trash.
(1) Storage and trash must be kept only in areas approved as part of the conditional use permit, and must not be placed higher than the walls enclosing such areas. (2) Trash may be collected in containers at the pump islands or inside buildings and service bays.
(K) Hours of operation. Hours of operation may be designated as part of the conditional use permit if exceptional circumstances exist, such as proximity to residential zones. (L) Removal, overhaul and replacement of engines.
(1) The removal, overhaul, and replacement of motors, differentials, and transmissions is permitted, provided these activities occur within a completely enclosed building and on vehicles with a rated capacity not to exceed 1-1/2 tons. (2) These activities will constitute only an accessory and incidental use of the service station operation and must not create obnoxious odors, smoke, noise, vibration, or otherwise create a nuisance.
(M) Recreational vehicle dumping stations. Recreational vehicle dumping stations are permitted, subject to applicable requirements of the Ventura County Health Department. (N) Enclosure of used or discarded automobile parts. No used or discarded automotive parts or equipment or permanently disabled, junk or wrecked vehicles may be located outside the service station building, except within an enclosed trash storage area screened from public view. (Ord. 1100, passed 7-6-04)
§ 16.35.040 LOCATION.
Automobile service stations must be located only at intersections of streets and highways designated on the city’s adopted circulation element of the general plan or in commercial shopping centers, as follows:
(A) Arterial having a right-of-way width of 100 feet.
(B) Collector streets having a right-of-way width of 80 or 84 feet. (C) Properties fronting on a primary thoroughfare and siding on a freeway right-of-way. (D) Within commercial developments with a land area of 2 acres or more under one ownership.
(Ord. 1100, passed 7-6-04)
§ 16.35.050 DEVELOPMENT STANDARDS.
(A) Design. The architectural design of service station developments must be compatible with the character of development of the area in which it is to be located. However, innovative architectural design and site layout which would contribute to the efficiency and appearance of the station and minimize adverse effects on adjacent property is encouraged. (B) Site size.
(1) The minimum area of a corner site must be 22,500 square feet, with a minimum frontage of 150 feet on one street.
(2) When a service station on a corner site is developed as a part of a commercial shopping center on a development site greater than two acres in size, the service station site may be 379
reduced to 15,000 square feet, provided the additional required area is provided within the mutual parking and access areas.
(C) Access.
(1) Two driveways on each street frontage may be permitted with the approval of the City Engineer. Access driveways must be no closer than 35 feet from the point of intersection of the ultimate right-of-way lines of the adjoining streets, but in no case closer than five feet to the point of curb return. Such driveways must be at least 25 feet apart and they may be no closer than five feet to the side property line.
(2) Where a service station is part of a commercial development site, a combined driveway for both the service station and adjacent shopping center or commercial property must be designated and provided.
(D) Lot grading and drainage. Grading of service station sites must provide a minimum rise, in order to insure required fall for drainage, and must be engineered in a compatible manner with the surrounding properties. All drainage to the street must be by underground structures to avoid drainage across city sidewalks or drive aprons, and will be subject to the approval of the Public Works Director. (E) Setbacks. Notwithstanding the setback requirements for the zone district in which the service station is located, all buildings must be set back from interior and street frontage property lines a minimum of 30 feet. Pump islands parallel to the adjacent street must be set back a minimum of 20 feet from all property lines. Pump islands perpendicular to the adjacent street must be set back a minimum of 24 feet from all property lines.
(F) Canopy structure.
(1) Every pump island must be covered by a canopy structure designed and constructed of material to blend with the main building. (2) Where design permits, the pump island canopy structure must be attached to and made an integral part of the main building structure. (3) Canopies must be a minimum of 10 feet from any street frontage property line. (G) Storage area. Each service station must have a storage area. The required storage area may be constructed outside of the main building, provided that it is enclosed by a six-foot high solid masonry wall with a view-obscuring gate made of a durable metal material, and is roofed and contiguous to the main building, unless approved otherwise as a part of the conditional use permit. (H) Trash enclosure.
(1) Each service station must have at least one trash enclosure constructed to the standards described in 16.20.110 (Solid Waste/Recycling Receptacles and Enclosures) of this Title 16. (2) No trash, including discarded oil cans, batteries, signs, tires, and the like, must be stored or deposited on any section of the site, except in the trash area. (I) Restrooms.
(1) All service stations must contain restroom facilities for use by employees and patrons.
(2) All restroom entrances must be situated either to the side, to the rear, or within the main building.
(3) The restroom area may be situated in a location other than above if approved by the Planning Commission as part of the Conditional Use Permit. (J) Perimeter walls.
(1) Whenever a service station abuts property in a residential zone, a solid masonry wall not less than six feet high must be constructed along the property line abutting the residential zone.
However, front yard walls must not exceed 3.5 feet in height. The wall must be constructed in accordance 380
with wall standards outlined in Chapter 16.10 (Fences, Walls and Hedges) of this Title 16. A wall need not be installed when building walls or other acceptable walls already exist on such property lines, or if the service station is part of a shopping center development. The wall requirements may be modified as part of the conditional use permit.
(2) A wall constructed on the interior property lines must make provisions for tree wells or landscaped planting areas not less than 16 square feet in area. When included as part of the wall design, the wells or planting should be spaced not less than eight feet nor more than 16 feet apart.
Continuous planters or planters of uneven length may satisfy this requirement if they are at least one-third of the length of the wall, and include trees planted not more than 16 feet apart. (K) Landscaping.
(1) Notwithstanding the landscaping requirements for the zone district in which the service station is located, at least 10% of the site must be landscaped with live plant materials. Planting areas must include but are not limited to the following:
(a) All landscaped planters must be enclosed with a masonry curb not less than six inches high above the finished grade of the site. (b) A minimum five-foot-wide (inside dimension) raised planter, with a sixinch curb face made of concrete, brick or other masonry materials, must be provided along all street property lines between street access points for purpose of separating pump islands from the sidewalk.
Landscaped planters may be rounded at driveway entrances utilizing a minimum ten-foot radius. (c) A minimum of 150 square feet of raised planter with curb, minimum six inches in height, must be provided at the street frontage of the intersecting corner of the site, from curb cut to curb cut.
(d) All planting other than trees must be so maintained so as not to exceed a height greater than 30 inches, must not be thorny or spiked, and must not extend over the sidewalk or public right-of-way.
(e) Trees of minimum size 15 gallons must be placed in the parkway area (between curb face and back of sidewalk) with spacing and variety of trees to be determined by the Planning and Building Directors.
(f) Except for common traffic movement drives, service stations within shopping centers must be delineated from the remainder of the property by a landscaped buffer with minimum inside dimensions of four feet enclosed by a six-inch curb made of concrete, brick or other masonry material. Common and integrated traffic movement drives between the service station and the remainder of the property will be encouraged.
(g) All planting areas must be provided with a permanent irrigation system of a design suitable for the type and arrangement of the plant material selected. (2) All planted areas must be maintained so as not to constitute a health or fire hazard.
(Ord. 1100, passed 7-6-04)
§ 16.35.060 SIGNAGE.
(A) All service stations are subject to the sign regulations of Chapter 16.24 (Signs) of this Title 16.
(B) If additional signs are proposed or if modifications to the sign regulations are necessary or desirable for the service station, they may be requested and considered concurrently with the conditional use permit for the service station.
(C) Signs requested at a later date must be considered as modifications to the conditional use permit.
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(Ord. 1100, passed 7-6-04)
§ 16.35.070 CONFLICT OF DEVELOPMENT STANDARD PROVISIONS.
In the event of conflicting provisions between these development standards and any development standards required by the zone district where development will occur, the development standards required by this chapter will take precedence.
(Ord. 1100, passed 7-6-04)
CHAPTER 16.36:VENDING MACHINES
Section
16.36.010 Conditional Use Permit Required
16.36.020 Number permitted
16.36.030 Restrictions on location
16.36.040 Other conditions
§ 16.36.010 CONDITIONAL USE PERMIT REQUIRED.
A Conditional Use Permit, obtained pursuant to the requirements of Chapter 16.63 of this Title 16, will be required for the establishment of any vending machine. This requirement will not apply to any vending machine established prior to the effective date of this section, or that will be located within a completely enclosed building. (Ord. 1100, passed 7-6-04)
§ 16.36.020 NUMBER PERMITTED.
One outdoor vending machine will be permitted for each 4,000 square feet of site area, up to a maximum of six vending machines on any one site.
(Ord. 1100, passed 7-6-04)
§ 16.36.030 RESTRICTIONS ON LOCATION.
(A) Vending machines must be attached or located immediately adjacent to a building. (B) Vending machines will not be permitted to be placed on or project into any public right-ofway, nor will any vending machine be located in a manner that requires a person to be on a public rightof-way to operate the machine. (Ord. 1100, passed 7-6-04)
§ 16.36.040 OTHER CONDITIONS.
(A) No vending machine may have bright lights or garish colors, emit sounds, or have any other characteristics that distract motorists or adversely impact adjacent properties. (B) Prior to the issuance of a conditional use permit for any new vending machine, the owner/operator must provide the city with evidence that they have complied with all applicable Ventura County Health Department requirements.
(Ord. 1100, passed 7-6-04)
CHAPTER 16.37:PROHIBITION ON INDUSTRIAL HEMP CULTIVATION Section
16.37.010 Purpose
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16.37.020 Definitions
16.37.030 Prohibition on industrial hemp cultivation
16.37.040 Administrative regulations
16.37.050 Violation
16.37.060 Penalties
16.37.070 Public nuisance
§ 16.37.010 PURPOSE.
The purpose of this chapter is to expressly prohibit the establishment of industrial hemp cultivation in the city. The City Council finds that a prohibition on industrial hemp is necessary for the preservation and protection of the public health, safety, and welfare of the city and its residents. The prohibition of such uses is within the authority conferred upon the City Council by state law and is an exercise of its police powers to enact and enforce regulations for the public health, safety, and welfare of the city and its residents. Nothing in this chapter shall be interpreted to conflict with state law. (Ord. 1296, passed 5-20-20)
§ 16.37.020 DEFINITIONS.
CITY MANAGER - Means the City Manager or designee.
CULTIVATION - Means the planting, growing, harvesting, drying, curing, grading, or trimming of industrial hemp.
INDUSTRIAL HEMP - Means a fiber or oilseed crop, or both, that is limited to types of the plant Cannabis sativa L. having no more than 0.3% tetrahydrocannabinol (“THC”) contained in the dried flowering tops, whether growing or not; the seeds of the plant; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin produced therefrom.
(Ord. 1296, passed 5-20-20)
§ 16.37.030 PROHIBITIONS ON INDUSTRIAL HEMP CULTIVATION.
Industrial hemp cultivation is prohibited in all zones within the city. No person nor entity may establish or operate an industrial hemp cultivation facility within city limits. A property owner may not allow his or her property to be used by any person or entity for industrial hemp cultivation. (Ord. 1296, passed 5-20-20)
§ 16.37.040 ADMINISTRATIVE REGULATIONS.
The City Manager is hereby authorized to promulgate and enforce administrative regulations in the implementation and enforcement of this chapter.
(Ord. 1296, passed 5-20-20)
§ 16.37.050 VIOLATION.
Any person who violates any provision of this chapter is guilty of a separate offense for each and every day during any portion of which any such person commits, continues, permits, or causes a violation thereof, and may be penalized accordingly.
(Ord. 1296, passed 5-20-20)
§ 16.37.060 PENALTIES.
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In addition to any other remedy available under law, violations of the subchapter are subject to the administrative citations and penalties provisions in Title 1, Chapter 14, of this code. (Ord. 1296, passed 5-20-20)
§ 16.37.070 PUBLIC NUISANCE.
Any use or condition caused, or permitted to exist, in violation of any provisions of this chapter shall be, and hereby is declared to be, a public nuisance and may be summarily abated by the city pursuant to Code of Civil Procedure 731 or any other remedy available to the city. (Ord. 1296, passed 5-20-20)
CHAPTER 16.38:YARD AND GARAGE SALES
Section
16.38.010 Chapter 123 of Municipal Code applies
§ 16.38.010 CHAPTER 123 OF MUNICIPAL CODE APPLIES
Chapter 123 (Sale of Personal Property) of the Santa Paula Municipal Code will govern all garage and yard sales.
(Ord. 1100, passed 7-6-04)
CHAPTER 16.39:ELECTRIC VEHICLE CHARGING SYSTEMS; STREAMLINED PERMITTING Section
16.39.010 Purpose
16.39.020 Definitions
16.39.030 Electrical vehicle charging station requirements
16.39.040 Expedited permitting process
16.39.050 Permit application process
16.39.060 Permit review
§ 16.39.010 PURPOSE.
The purpose of this chapter is to create an expedited and streamlined electric vehicle charging station permitting process that complies with Cal. Gov’t Code §65850.7 and 65850.71 to achieve the timely and cost-effective installation of electric vehicle charging stations. Pursuant to Cal. Gov’t Code 65850.7 and notwithstanding any other provision of this code pertaining to conditional or accessory uses, only an electrical permit shall be required for an electric vehicle charging station. (Ord. 1271, passed 9-18-17; Am. Ord. 1321, passed 1-18-23) § 16.39.020 DEFINITIONS.
Unless the contrary is stated or clearly appears from the context, the following definitions govern the construction of the words and phrases used in this chapter.
A FEASIBLE METHOD TO SATISFACTORILY MITIGATE OR AVOID THE SPECIFIC, ADVERSE IMPACT includes, but is not limited to, any cost-effective method, condition, or mitigation imposed by the city on another similarly situated application in a prior successful application for a permit.
BUILDING OFFICIAL means the chief building official of the city or his or her designee. 384
ELECTRIC VEHICLE CHARGING STATION or CHARGING STATION means any level of electric vehicle supply equipment station that is designed and built in compliance with Article 625 of the Cal.
Electrical Code, and any subsequent amendments thereto, and delivers electricity from a source outside an electric vehicle into a plug-in electric vehicle.
ELECTRONIC SUBMITTAL means the utilization of one or more of the following:
(1) Email;
(2) The internet; or
(3) Facsimile.
SPECIFIC ADVERSE IMPACT means significant, quantifiable, direct, and unavoidable impact, based on objective, identified, and written public health or safety standards, policies, or conditions as they existed on the date the application was deemed complete. (Ord. 1271, passed 9-8-17; Am. Ord. 1321, passed 1-18-23) § 16.39.030 ELECTRICAL VEHICLE CHARGING STATION REQUIREMENTS. (A) The electric vehicle charging station shall meet the applicable safety and performance standards established by the Cal. Electrical Code, the Society of Automotive Engineers, the National Electrical Manufacturers Association, and accredited testing laboratories such as Underwriters Laboratories, and rules of the Public Utilities Commission and the local electric utility company regarding safety and reliability.
(B) Installation of electric vehicle charging stations and associated wiring, bonding, disconnecting means and overcurrent protective devices shall meet the requirements of Article 625 and all applicable provisions of the California Electrical Code. (C) Installation of electric vehicle charging stations shall be incorporated into the load calculations of all new or existing electrical services and shall meet the requirements of the California Electrical Code. Electric vehicle charging equipment shall be considered a continuous load. (D) Anchorage of either floor-mounted or wall-mounted electric vehicle charging stations shall meet the requirements of the California Building or Residential Code as applicable per occupancy, and the provisions of the manufacturer’s installation instructions. Mounting of charging stations shall not adversely affect building elements.
(Ord. 1271, passed 9-18-17; Am. Ord. 1321, passed 1-18-23) § 16.39.040 EXPEDITED PERMITTING PROCESS.
Consistent with Cal. Gov’t Code 65850.7, the Building Official shall implement an expedited, streamlined permitting process for electric vehicle charging stations and adopt a checklist of all requirements with which electric vehicle charging stations shall comply in order to be eligible for expedited review. The expedited, streamlined permitting process and checklist may refer to the recommendations contained in the most current version of the “Plug-In Electric Vehicle Infrastructure Permitting Checklist” of the “Zero-Emission Vehicles in California: Community Readiness Guidebook” as published by the Governor’s Office of Planning and Research. The city’s adopted checklist shall be published on the city’s website.
(Ord. 1271, passed 9-18-17; Am. Ord. 1321, passed 1-18-23) § 16.39.050 PERMIT APPLICATION PROCESS.
(A) Prior to submitting an application for processing, the applicant shall verify that the installation of an electric vehicle charging station will not have specific, adverse impact to public health and safety and building occupants. Verification by the applicant includes but is not limited to: electrical system capacity and loads; electrical system wiring, bonding and overcurrent protection; building 385
infrastructure affected by charging station equipment and associated conduits; and areas of charging station equipment and vehicle parking.
(B) A permit application that satisfies the information requirements in the city’s adopted checklist shall be deemed complete and be promptly processed. A completed application does not authorize an applicant to energize or utilize the electric vehicle charging station until approval and all necessary permits are granted by the city.
(C) If the Building Official determines that the permit application is incomplete, he or she shall issue a written correction notice to the applicant, detailing all deficiencies in the application and any additional information required to be eligible for expedited permit issuance. (D) The Building Official shall allow for electronic submittal of permit applications covered by this chapter and associated supporting documentations. In accepting such permit applications, the Building Official shall also accept electronic signatures on all forms, applications, and other documentation in lieu of a wet signature by any applicant. (Ord. 1271, passed 9-18-17; Am. Ord. 1321, passed 1-18-23) § 16.39.060 PERMIT REVIEW.
(A) The Building Official shall review all electric vehicle charging station applications.
Notwithstanding the expedited permit processing set forth in this chapter, the Building Official retains authority at all times to identify and address higher priority life-safety situations. (B) If the Building Official makes a finding based on substantial evidence that the electric vehicle charging station could have a specific, adverse impact upon the public health or safety, the city may require the applicant to apply for a conditional use permit. The Building Official’s decision may be appealed by the applicant to the Planning Commission.
(C) An application for a conditional use permit to install an electric vehicle charging station shall not be denied unless the Planning Commission makes written findings based upon substantial evidence in the record that the proposed installation would have a specific, adverse impact upon the public health or safety, and there is no feasible method to satisfactorily mitigate or avoid the specific, adverse impact. The findings shall include the basis for the rejection of potential feasible alternatives. If denied, the Planning Commission’s decision may be appealed by the applicant to the City Council pursuant to 16.53.210.
(D) In the technical review of a charging station application, the Building Official shall not condition the approval of any electric vehicle charging station permit on the approval of such a system by an association, as that term is defined by Cal. Civil Code 4080. (E) Upon confirmation by the Building Official that the permit application and supporting documents meet the requirements of the city adopted checklist, and is consistent with all applicable laws and health and safety standards, the Building Official shall, consistent with Cal. Gov’t Code 65850.7, as may be amended, approve the application and issue all necessary permits. (F) An application to install an electric vehicle charging station submitted to the building official of the city shall be deemed complete if, after the applicable time period has elapsed, both of the following are true:
(1) The Building Official has not deemed the application complete, consistent with the checklist created by the city pursuant to Cal. Gov’t Code 65850.7(g). (2) The Building Official has not issued a written correction notice detailing all deficiencies in the application and identifying any additional information explicitly necessary for the Building Official to complete a review limited to whether the electric vehicle charging station meets all health and safety requirements of local, state, and federal law, consistent with subdivisions (b) and (g) of Cal. Gov’t Code 65850.7.
(G) For purposes of paragraph (F), “applicable time period” means either of the following:
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(1) Five business days after submission of the application to the city if the application is for at least one, but not more than 25 electric vehicle charging stations at a single site. (2) Ten business days after submission of the application to the city if the application is for more than 25 electric vehicle charging stations at a single site. (H) An application to install an electric vehicle charging station shall be deemed approved if the applicable time period described in paragraph (G) has elapsed and all of the following are true:
(1) The Building Official has not administratively approved the application pursuant to Cal. Gov’t Code 65850.7(b).
(2) The Building Official has not made a finding, based on substantial evidence, that the electric vehicle charging station could have a specific, adverse impact upon the public health or safety or required the applicant to apply for a use permit pursuant to Cal. Gov’t Code 65850.7(b). (3) The building official of the city has not denied the use permit pursuant to Cal.
Gov’t Code 65850.7(c).
(4) An appeal has not been made to the Planning Commission pursuant to Cal.
Gov’t Code 65850.7(d).
(I) For purposes of paragraph (H), “applicable time period means” either of the following:
(1) Twenty business days after the application was deemed complete, if the application is for at least one, but not more than 25 electric vehicle charging stations at a single site. (2) Forty business days after the application was deemed complete, if the application is for more than 25 electric vehicle charging stations at a single site. (J) If an electric vehicle charging station and any associated equipment interfere with, reduce, eliminate, or in any way impact the required parking spaces for existing uses, the city shall reduce the number of required parking spaces for existing uses by the amount necessary to accommodate the electric vehicle charging station and any associated equipment. (Ord. 1321, passed 1-18-23)
CHAPTER 16.40:EMERGENCY SHELTERS
Section
16.40.020 Definitions
16.40.020 Development standards
§ 16.40.010 DEFINITIONS.
(A) EMERGENCY SHELTER - Means housing with minimal supportive services for homeless persons; victims of domestic violence; persons requiring temporary housing; and other individuals and households made temporarily homeless due to natural disasters (e.g., fires and earthquakes) that is limited to occupancy of six months or less by a homeless person and operated by a government agency or private non-profit organization.
(B) HOMELESS PERSON - Has the same definition as set forth in 42 USC 11302. (Ord. 1249, passed 5-6-13)
§ 16.40.020 DEVELOPMENT STANDARDS.
In addition to the standards specified in Chapter 16.10 emergency shelters are also subject to the following development standards:
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(A) Each resident must be provided a minimum of 50 gross square feet of personal living space, not including space for common areas. In no case can occupancy exceed 30 residents at any one time.
(B) Off-street parking spaces must be provided in the ratio of one parking space per ten adult beds, plus one parking space per employee on the largest shift. However, the required number of offstreet parking spaces cannot exceed the spaces required for similar uses of the same size in the Commercial/Light Industrial (C/LI) zone.
(C) Outdoor activities such as recreation, drop-off and pick-up of residents, or similar activities may be conducted at the facility. Staging for drop-off, intake, and pick-up should take place inside a building, at a rear or side entrance, or inner courtyard. Emergency shelter plans must show the size and location of any proposed waiting or resident intake areas, interior or exterior. (D) Before commencing operation, the emergency shelter provider must have a written management plan, which must be approved by the Director. The management plan must at a minimum include: requirements for staff training; resident selection; process for identifying residents; neighborhood outreach; pet policies; scheduling outdoor activities;
temporary storage of residents’ personal belongings; safety and security; management of outdoor areas; and counseling and social service programs for residents. (E) Not more than one emergency shelter is permitted within a radius of 300 feet from another emergency shelter.
(F) Individual occupancy in an emergency shelter is limited to six months during any 12 consecutive month period. Extension(s) may be provided if a client is working with social services agencies to secure alternative housing, but no alternative housing is available. (G) Exterior lighting must be provided at all building entrances and outdoor activity areas, and must be activated between sunset and sunrise of each day. All exterior lighting must comply with this code.
(H) Each emergency shelter must have an on-site management office. At least one employee must be present in the on-site management office at all times that the emergency shelter is operating. (I) Each emergency shelter must have on-site security, with at least one person present at the emergency shelter while it is operating.
(J) Facilities must provide a storage area for refuse and recyclables that is enclosed by a sixfoot high landscape screen, solid wall or fence, which is accessible to collection vehicles on one side. It must be large enough to accommodate the number of bins that are required to provide the facility with sufficient service so as to avoid the overflow of material outside of the bins provided. (K) The emergency shelter facility may provide one or more of the following specific facilities and services including, without limitation:
(1) Commercial kitchen facilities designed and operated in compliance with applicable law;
(2) Dining area;
(3) Laundry;
(4) Recreation room;
(5) Support services (e.g., training, counseling); and
(6) Child care facilities.
(L) Applications for emergency shelters must be submitted to the Director for consideration.
Within 30 days after finding an application complete, the Director must issue an emergency shelter permit upon finding that the proposal complies with all applicable law including, without limitation, this code. (Ord. 1249, passed 5-6-13; Am. Ord. 1304, passed 9-16-20) 388
CHAPTER 16.41:REGULATION OF CANNABIS ACTIVITIES
Section
16.41.010 Purpose
16.41.020 Definitions
16.41.030 Prohibition
16.41.040 Personal cultivation
16.41.050 Violations
16.41.060 Administrative regulations
16.41.070 Public nuisance
§ 16.41.010 PURPOSE.
The purpose of this chapter is to expressly prohibit the establishment of commercial cannabis uses in the city. The City Council finds that prohibitions on commercial cannabis activity are necessary for the preservation and protection of the public health, safety and welfare of the city. The prohibition of such uses is within the authority conferred upon the City Council by state law and is an exercise of its police powers to enact and enforce regulations for the public health, safety and welfare of the city. This chapter is also intended to apply reasonable regulations to the personal cultivation of cannabis that is authorized under state law. Nothing in this chapter shall be interpreted to conflict with state law, including without limitation the Compassionate Use Act, the Control, Regulate, and Tax Adult Use of Marijuana Act (AUMA) and the Medicinal and Adult-Use Cannabis Regulation and Safety Act (MAUCRSA), as may be amended. (Ord. 1272, passed 12-4-17)
§ 16.41.020 DEFINITIONS.
For the purposes of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
(A) “CANNABIS” or “MARIJUANA” shall mean all parts of the plant Cannabis sativa Linnaeus, Cannabis indica, or Cannabis ruderalis, whether growing or not; the seeds thereof; the resin, whether crude or purified, extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture or preparation of the plant, its seeds, or resin. “CANNABIS” or “MARIJUANA” also means the separated resin, whether crude or purified, obtained from Cannabis. “CANNABIS” or “MARIJUANA” also includes cannabis that is used for medical, non-medical, or other purposes. “CANNABIS” or “MARIJUANA” does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil, or case, or the sterilized seed of the plant which is incapable of germination. “CANNABIS” or “MARIJUANA” also does not include industrial hemp, as defined in California and has the same definition as Cal. Health and Safety Code 11018.5.
(B) “CANNABIS/MARIJUANA ACCESSORIES” means any equipment, products or materials of any kind which is intended for use, or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, smoking, vaporizing, or containing Cannabis, or for ingesting, inhaling, or otherwise introducing Cannabis or Cannabis products into the human body. (C) “CANNABIS/MARIJUANA PRODUCT” means Cannabis that has undergone a process whereby the plant material has been transformed into a concentrate, including, but not limited to, concentrated Cannabis, or an edible or topical product containing Cannabis or concentrated Cannabis and other ingredients.
(D) “CANNABIS TESTING LABORATORY” means a laboratory, facility, or entity that offers or performs tests of both adult use and medical cannabis or cannabis products and that is both of the 389
following: (1) accredited by an accrediting body (i.e. International Organization for Standardization (ISO)) that is independent from all other persons involved in commercial cannabis activity in the state, and (2) is licensed by the Bureau of Cannabis Control.
(E) “COMMERCIAL CANNABIS ACTIVITY” means cultivation, manufacture, processing, storing, labeling, transporting, distribution, delivery or sale of cannabis or a cannabis product for medical, non- medical, or any other purpose and includes the activities of any business licensed by the state or other government entity under Division 10 of the Cal. Bus. and Prof. Code, or any provision of state law that regulates the licensing of cannabis businesses. This definition includes operation of a dispensary, mobile marijuana dispensary and cannabis delivery activities. This definition does not include Cannabis testing laboratories.
(F) “CONCENTRATED CANNABIS” means manufactured cannabis that has undergone a process to concentrate one or more active cannabinoids, thereby increasing the product’s potency. “CONCENTRATE” includes resin from granular trichomes from a Cannabis plant. (G) “CULTIVATION OF CANNABIS” or “CANNABIS CULTIVATION” means any activity involving the planting, growing, harvesting, drying, curing, grading, or trimming of cannabis. (H) “DELIVERY” means the commercial transfer of cannabis or cannabis products to a customer. "DELIVERY” also includes the use by a retailer of any technology platform owned and controlled by the retailer. The term “DELIVERY” does not include the distribution of cannabis from a mobile marijuana dispensary.
(I) “DISPENSARY” means a facility where Cannabis, Cannabis products, or devices for the use of Cannabis or Cannabis products are offered, either individually or in any combination, for retail sale, including an establishment that delivers Cannabis and Cannabis products as part of a retail sale. (J) “DISTRIBUTION” means the procurement, sale, and transport of cannabis and cannabis products between entities licensed under Division 10 of the Cal. Bus. and Prof. Code, as they may be amended from time to time.
(K) “FULLY-ENCLOSED ACCESSORY STRUCTURE” means a structure or part of a structure not exceeding 12 feet in height, which is physically detached from the main building on the lot and the use of which is incidental to that of the main building or use on the same lot. A structure that is incorporated within the continuous roofline of the primary structure is part of the primary structure and is therefore exempt from this definition.
(L) “MANUFACTURE CANNABIS” means to compound, blend, extract, infuse, or otherwise prepare a Cannabis product.
(M) “MAUCRSA” means the Medicinal and Adult-Use Cannabis Regulation and Safety Act as codified in Division 10 of the Cal. Bus. and Prof. Code, as the same may be amended from time to time. (N) “MOBILE MARIJUANA DISPENSARIES” means any dispensary, clinic, cooperative, association, club, business, or group which transports or delivers, or arranges the transportation or delivery, of medical Cannabis to a person or conducts sales of Cannabis from a non-fixed location. (O) “PERSON” means any individual, firm, corporation, association, club, society, or other organization. The term person shall include any owner, manager, proprietor, employee, volunteer or salesperson.
(P) “PERSONAL CANNABIS CULTIVATION” means Cannabis cultivation of six or fewer live Cannabis plants within a single private residence or a fully-enclosed accessory structure that is accessory to a private residence in accordance with Cal. Health & Safety Code 11362.2. (Q) “PRIVATE RESIDENCE” means a house, an apartment unit, condominium, or other similar dwelling that is lawfully used as a residence.
(Ord. 1262, passed 2-1-16; Am. Ord. 1272, passed 12-4-17) § 16.41.030 PROHIBITION.
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(A) Commercial cannabis activities of all types are expressly prohibited in all zones in the city. No person shall establish, operate, conduct, or allow, a commercial cannabis activity anywhere in the city. To the extent that this prohibition conflicts with any other provision of this code, this prohibition shall control.
(B) Mobile marijuana dispensaries are prohibited in all zones within the city. No person shall:
(1) Locate, operate, own, suffer, allow to be operated or abide, abet or assist in the operation of any mobile marijuana dispensary within the city; (2) Deliver marijuana to any location within the city from a mobile marijuana dispensary, regardless of where the mobile marijuana dispensary is located, or engage in any operation for this purpose; or
(3) Deliver any medical cannabis product, including, but not limited to: tinctures, baked goods, or other consumable products, to any location within the city from a mobile marijuana dispensary, regardless of where the mobile marijuana dispensary is located, or engage in any operation for this purpose.
(C) This section is meant to prohibit all activities for which a state license is required.