HomeMy WebLinkAbout4.0_Appeal of Lot Merger_PA2011-141 PA2011-141
CITY OF NEWPORT BEACH
PLANNING COMMISSION STAFF REPORT
October 20, Planning Commission Hearing
Agenda Item 4
SUBJECT: Appeal of Lot Merger (PA2011-141)
2808 and 2812 Ocean Boulevard
Lot Merger No. LM2011-002
APPLICANT: The John Guida Trust and The Julie Guida Trust
PLANNER: Kay Sims, Assistant Planner
(949) 644-3237 or ksims@newportbeachca.gov
PROJECT SUMMARY
An appeal of the Zoning Administrator's decision to approve Lot Merger No. LM2011-
002, which allowed the merger of portions of Lots 4, 5, and 6 of Block 34 located in
Corona del Mar, under common ownership, for the purpose of development of a new
single family residence. The decision also included approval of a request to waive the
requirement to file a parcel map.
RECOMMENDATION
1) Conduct a de novo public hearing; and
2) Uphold or reverse the decision of the Zoning Administrator and adopt Resolution
No. _ (Attachment No. PC 1 or PC 2) for Lot Merger No. LM2011-002.
INTRODUCTION
Project Setting
The subject lots consist of portions of Lots 4, 5, and 6 of Block 34, but are more easily
identified as 2808 and 2812 Ocean Boulevard. The properties, located on the
northeasterly (inland) side of Ocean Boulevard between Goldenrod and Heliotrope
Avenues, are generally rectangular in shape with skewed front property lines and slope
slightly from the rear toward Ocean Boulevard. Vehicular access is provided via a 20-
foot-wide, shared, private ingress and egress easement, which extends from the rear of
the properties to Ocean Lane. Each property is currently developed with a single-unit
residential dwelling. Lookout Point and Little Corona Beach Park are located directly
across Ocean Boulevard.
PA2011-141
Appeal of Lot Merger (PA2011-141)
2808 and 2812 Ocean Boulevard
October 20, 2011
Page 2
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LOCATION GENERAL PLAN ZONING CURRENT USE
Single-Unit Residential Single-Unit Residential
ON-SITE Detached RS-D R-1 Single-unit residential dwelling
Single-Unit Residential Single-Unit Residential
NORTH Detached RS-D R-1 Single-unit residential dwellings
Parks and Recreation Parks and Recreation
SOUTH PR PR Park, beach, and public restrooms
Single-Unit Residential Single-Unit Residential
EAST Detached (RS-D) (R-1) Single-unit residential dwellings
Single-Unit Residential Single-Unit Residential
WEST Si
Detached (RS-D R-1 ngle-unit residential dwellings
PA2011-141
Appeal of Lot Merger (PA2011-141)
2808 and 2812 Ocean Boulevard
October 20, 2011
Page 3
Zoning Administrator Hearing and Action
Prior to the Zoning Administrator hearing on September 14, 2011, staff spoke over the
telephone and met with members of the public to describe the project and answer
questions. Four (4) comment letters (Attachment No. PC 4) were received that
expressed concerns about the project. Staff also received a copy of a private deed
restriction regarding the height of structures allowed on the subject properties and
neighboring properties adjacent to the rear.
On September 14, 2011, the Zoning Administrator conducted a public hearing, reviewed
the applicant's request, and received testimony from the applicant and 15 members of
the public. All speakers opposed the lot merger. Additionally, a petition in opposition
(Attachment No. PC 4) signed by 29 members of the public was presented. Stated
reasons for opposition, including in comment letters received, were: elimination or
blocking of private views, devaluation of surrounding properties, vehicular access, and
not abiding by the deed restriction, which limits the height of any structures.
Prior to making his decision, the Zoning Administrator explained that the City does not
enforce deed restrictions nor have policies or ordinances that protect private views. The
Zoning Administrator also explained that the properties have vehicular access via
Ocean Boulevard in addition to the private, shared easement. He further explained that
the size of the lot proposed was similar to others in the area (see Table 1 : Project
Characteristics below) and was compatible with the character of the area. After
considering public comments and concerns presented, the Zoning Administrator
determined that there were facts in support of the required findings and approved the
project (Attachment No. PC 3).
Table 1: Project Characteristics
Property Total Area Width
(approximately) (at widest point)
R-1 Zoning District 5,000 sq. ft. 50 feet
Interior Lot Standards:
2808 Ocean Boulevard 7,217 sq. ft. 40 feet
2812 Ocean Boulevard 6,483 sq. ft 40 feet
Proposed Merged Lot 13,699.58 sq. ft. 80 feet
Comparable Properties Adjacent
to Ocean Boulevard
2900 Ocean Boulevard 13, 326 sq. ft. 66 feet
2908 Ocean Boulevard 10,049 sq.ft. 78 feet
3222 Ocean Boulevard 14,579 sq.ft. 111 feet
PA2011-141
Appeal of Lot Merger (PA2011-141)
2808 and 2812 Ocean Boulevard
October 20, 2011
Page 4
DISCUSSION
Analysis
Required Findings
Pursuant to Section 19.68.1-1 (Lot Mergers, Required Findings) of Title 19 (Subdivision
Code) of the Municipal Code, the following findings must be made in order to approve a
lot merger:
1. Approval of the merger will not, under the circumstances of this particular case,
be detrimental to the health, safety, peace, comfort and general welfare of
persons residing or working in the neighborhood of such proposed use or be
detrimental or injurious to property and improvements in the neighborhood or the
general welfare of the City, and further that the proposed lot merger is consistent
with the legislative intent of Title 19; and
2. The lots to be merged are under common fee ownership at the time of the
merger; and
3. The lots as merged will be consistent or will be more closely compatible with the
applicable zoning regulations and will be consistent with other regulations
relating to the subject property including, but not limited to, the General Plan and
any applicable Coastal Plan or Specific Plan; and
4. Neither the lots as merged nor adjoining parcels will be deprived of legal access
as a result of the merger; and
5. The lots as merged will be consistent with the surrounding pattern of
development and will not create an excessively large lot that is not compatible
with the surrounding development.
The Zoning Administrator approval included facts in support of the required findings,
which are provided in the draft resolution upholding the Zoning Administrator's decision
(Attachment No. PC 1). Also approved was the request to waive the requirement to file
a parcel map pursuant to Section 19.68.030.M (Waiver of Concurrent Parcel Map),
which allows waiver of the parcel map requirement in conjunction with a lot merger
where no more than three (3) parcels are eliminated.
Appeal
On September 22, 2011, Mr. Clifford Jones, Ms. Joan Campbell, and Mr. John Silva
appealed the Zoning Administrator's action. The appeal letter (Attachment No. PC 5)
PA2011-141
Appeal of Lot Merger (PA2011-141)
2808 and 2812 Ocean Boulevard
October 20, 2011
Page 5
stated that the appellants feel that the following required findings were not adequately
addressed:
1. Approval of the merger will not, under the circumstances of this particular case, be
detrimental to the health safety, peace, comfort and general welfare of persons
residing or working in the neighborhood of such proposed use or be detrimental or
injurious to property and improvements in the neighborhood or the general welfare of
the City, and further that the proposed lot merger is consistent with the legislative
intent of Title 19.
The Zoning Administrator determined that facts presented in the action letter supported
making the health, safety, and welfare finding. The City does not regulate and enforce
private deed restrictions and does not have the authority to protect private views and
new development on the two (2) lots individually or merged, must comply with the all
Zoning Code Development Standards for the R-1 Zoning District.
2. Neither the lots as merged nor adjoining parcels will be deprived of legal access as a
result of the merger. (Easement)
Legal access is currently provided via a private, shared easement to both lots and will
remain if the lots are merged.
Alternatives
1. Should the Planning Commission find that there are facts to support the findings
required to grant approval of the Lot Merger as proposed, the Planning
Commission should adopt Resolution No. _ (Attachment No. PC 1), upholding
the decision of the Zoning Administrator and approving Lot Merger No. LM2011-
002.
2. Should the Planning Commission find that the facts do not support the findings
required to grant approval of the Lot Merger, the Planning Commission should
adopt Resolution No. _ (Attachment No. PC 2), reversing the decision of the
Zoning Administrator, and denying Lot Merger No. LM2011-002.
Environmental Review
If upheld and approved, then this project is exempt from CEQA, pursuant to Section
15305 (Class 5 Minor Alterations in Land Use Limitations) of the Implementing
Guidelines of the California Environmental Quality Act (CEQA), which consists of
projects with minor alterations in land use limitations in areas with an average slope of
less than twenty (20%) percent, which do not result in any changes in land use or
density, including minor lot line adjustments not resulting in the creation of any new
parcel. This project is consistent with these requirements.
PA2011-141
Appeal of Lot Merger (PA2011-141)
2808 and 2812 Ocean Boulevard
October 20, 2011
Page 6
If reversed and denied, the project is not subject to the California Environmental Quality
Act (CEQA) review, pursuant to Section 15270 of the CEQA Guidelines.
Public Notice
Notice of this hearing was published in the Daily Pilot, mailed to all property owners
within 300 feet of the property (excluding intervening rights-of-way), and posted at the
project site a minimum of 10 days in advance of this meeting consistent with the
Municipal Code. Additionally, the item appeared on the agenda for this meeting, which
was posted at City Hall and on the City website.
Prepared by:
Submitted by:
ay Si s, Assistant Planner Gregg Ramirez, Acting Planning M nager
ATTACHMENTS
PC 1 Draft Resolution with Findings and Conditions - Uphold
PC 2 Draft Resolution - Reverse
PC 3 Zoning Administrator Action Letter
PC 4 Correspondence, Petition, and
Exhibits (Zoning Administrator Hearing)
PC 5 Appeal Statement
PC 6 Lot Merger Map
PA2011-141
Attachment No. PC I
Draft Resolution with Findings and
Conditions — To Uphold
PA2011-141
RESOLUTION NO. ####
A RESOLUTION OF THE PLANNING COMMISSION OF THE
CITY OF NEWPORT BEACH UPHOLDING THE DECISION OF
THE ZONING ADMINISTRATOR AND APPROVING LOT
MERGER NO. LM2011-002 FOR A LOT MERGER FOR THE
FOLLOWING PROPERTY, UNDER COMMON OWNERSHIP:
PORTIONS OF LOTS 4, 5, AND 6 OF BLOCK 34 LOCATED IN
CORONA DEL MAR. ALSO INCLUDED IN THE APPLICATION IS
A REQUEST TO WAIVE THE REQUIREMENT TO FILE A
PARCEL MAP, FOR PROPERTIES LOCATED AT 2808 AND
2812 OCEAN BOULEVARD (PA2011-141)
THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS
FOLLOWS:
SECTION 1. STATEMENT OF FACTS.
1. An application was filed by The John Guida Trust and the Julie Guida Trust, with respect
to properties located at 2808 and 2812 Ocean Boulevard, and legally described as
Portions of Lots 4, 5, and 6 of Block 34 of Corona del Mar requesting approval of a lot
merger. Also included in the application is a request to waive the requirement to file a
parcel map.
2. The applicant proposes a lot merger for the following property, under common
ownership, portions of Lots 4, 5, and 6 of Block 34 located in Corona del Mar. Also
included in the application is a request to waive the requirement to file a parcel map
3. The subject property is located within the Single-Unit Residential (R-1) Zoning District
and the General Plan Land Use Element category is Single-Unit Residential Detached
(RS-D).
4. The subject property is located within the coastal zone. The Coastal Land Use Plan
category is Single-Unit Residential Detached (RSD-B).
5. A public hearing was held on September 14, 2011 in the City Hall Council Chambers,
3300 Newport Boulevard, Newport Beach, California. A notice of time, place and
purpose of the meeting was given in accordance with the Newport Beach Municipal
Code. Evidence, both written and oral, was presented to, and considered by, the
Zoning Administrator at this meeting.
6. On September 22, 2011, the Zoning Administrator's decision to approve Lot Merger No.
LM2011-022 was appealed by Mr. Clifford Jones, Ms. Joan Campbell, and Mr. John
Silva. The appeal was filed to further consider two findings, which the applicants felt were
not adequately addressed in the Zoning Administrator's decision.
7. The Planning Commission held a public hearing on October 20, 2011, in the City Hall
Council Chambers, 3300 Newport Boulevard, Newport Beach, California. The Planning
PA2011-141
Planning Commission Resolution No. _
Page 2 of 7
Commission considered evidence, both written and oral presented at this meeting. A
notice of time, place and purpose of the meeting was given in accordance with the
Newport Beach Municipal Code. Evidence, both written and oral, was presented to,
and considered by, the Planning Commission at this meeting.
8. Pursuant to Section 20.64.030.C, the public hearing was conducted "de novo,"
meaning that it is a new hearing and the decision being appealed has no force or
effect as of the date the call for review was filed.
SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION.
1. This project has been determined to be categorically exempt under the requirements
of the California Environmental Quality Act under Class 15305 (Class 5 Minor
Alterations in Land Use limitations).
2. Class 5 consists of projects with minor alterations in land use limitations in areas with
an average slope of less than 20 percent, which do not result in any changes to land
use or density, including minor lot line adjustments not resulting in the creation of any
new parcel. This project is consistent with these requirements.
SECTION 3. REQUIRED FINDINGS.
In accordance with Section 19.68.030.H of Title 19 (Subdivision Code: Lot Mergers, Required
Findings) of the Newport Beach Municipal Code, the following findings and facts in support of
such findings are set forth:
Finding
A. Approval of the merger will not, under the circumstances of this particular case, be
detrimental to the health, safety, peace, comfort and general welfare of persons
residing or working in the neighborhood of such proposed use or be detrimental or
injurious to property and improvements in the neighborhood or the general welfare of
the City, and further that the proposed lot merger is consistent with the legislative
intent of Title 19.
Facts in Support of the Finding:
A-1. The future development on the proposed parcel will comply with the Zoning Code
development standards.
A-2. The proposed merger will not cause future development to impact public views of the
ocean as no public view presently exists.
A-3. The project site described in the proposal consists of legal building sites.
A-4. The lot merger to combine the existing legal lots by removing the interior lot lines
between them will not result in the creation of additional parcels.
PA2011-141
Planning Commission Resolution No. _
Page 3 of 7
A-5. The project is in an area with an average slope less than 20 percent and no changes
in use or density will occur as a result of the merger.
B. The lots to be merged are under common fee ownership at the time of the merger.
Facts in Support of the Finding:
B-1. The portions of lots 4,5, and 6 to be merged are under common ownership.
C. The lots as merged will be consistent or will be more closely compatible with the
applicable zoning regulations and will be consistent with other regulations relating to
the subject property including, but not limited to, the General Plan and any applicable
Coastal Plan or Specific Plan.
Facts in Support of the Finding:
D-1. The previously existing single-unit dwellings located on the subject sites will be
demolished, and the proposed lot would be redeveloped with a new single-unit dwelling.
Section 20.18.030 of the Zoning Code establishes minimum lot area and width
requirements. Each of the two existing lots meet the minimum lot area required, but do
not meet the minimum lot width required (50 feet). The proposed merger of the lots would
create one lot which would comply with the minimum lot width and lot area standards
required by the Zoning Code.
D-2. The Land Use Element of the General Plan designates the subject site as Single-Unit
Residential Detached (RS-D), which is intended to provide primarily for single-family
residential units on a single legal lot and does not include condominiums or cooperative
housing. The Coastal Land Use Plan designates this site as Single Unit Residential
Detached (RSD-B) which provides for density ranges from 6.0-9.9 DU/AC. The existing
development and proposed development of a single-unit dwelling on the site are
consistent with these designations.
D. Neither the lots as merged nor adjoining parcels will be deprived of legal access as a
result of the merger.
Facts in Support of the Finding:
E-1. Vehicular access to and from the subject site and adjacent properties would remain the
same via an alley and an ingress and egress easement at the rear of the site.
E. The lots as merged will be consistent with the surrounding pattern of development and
will not create an excessively large lot that is not compatible with the surrounding
development.
Facts in Support of the Finding:
PA2011-141
Planning Commission Resolution No.
Page 4 of 7
F-1. Corona del Mar consists of lots of varying shapes and sizes.The subject lots, as merged,
will result in a parcel with a width of 80 feet and area of 13,678 square feet. Other nearby
lots on Ocean Boulevard have lot widths as wide as 73 feet and area as large as 13,325
square feet. The merger of the two lots it will not create an excessively large lot in
comparison to many of the existing lots in the surrounding area.
F-2. Development within the R-1 Zoning District can have a maximum floor area 1.5 times the
buildable area of the lot. The proposed parcel will not be developed beyond this
maximum square footage, and will be developed consistent with the surrounding
development.
F. That the proposed division of land complies with requirements as to area,
improvement and design, flood water drainage control, appropriate improved public
roads and property access, sanitary disposal facilities, water supply availability,
environmental protection, and other applicable requirements of this title, the Zoning
Code, the General Plan,-and any applicable Coastal Plan or Specific Plan.
Facts in Support of the Finding:
G-1. The existing lots currently comply with the design standards and improvements required
by the Zoning Code, General Plan, and Coastal Land Use Plan.
G-2. The proposed lot merger combines the lot portions into a single parcel of land and does
not result in the elimination of more than three lot portions.
G-3. Approval of the proposed lot merger would remove the existing interior lot lines, and
allow the property to be redeveloped as a single site. The land use, density, and intensity
would remain the same. The proposed lot would comply with all design standards and
improvements required for new subdivisions by Title 19, the Zoning Code, General Plan,
and Coastal Land Use Plan.
SECTION 4. DECISION.
NOW, THEREFORE, BE IT RESOLVED:
1. The Planning Commission of the City of Newport Beach hereby approves Lot Merger No.
LM2011-002 (PA2011-141) and waiver of a required parcel map requirement, upholding
the decision of the Zoning Administrator, subject to the conditions set forth in Exhibit A,
which is attached hereto and incorporated by reference.
2. This action shall become final and effective ten (10) days after the adoption of this
Resolution unless within such time an appeal is filed with the City Clerk in accordance
with the provisions of Title 20 Planning and Zoning, of the Newport Beach Municipal
Code.
PASSED, APPROVED AND ADOPTED THIS 20v' DAY OF OCTOBER 2011.
PA2011-141
Planning Commission Resolution No. _
Page 5 of 7
AYES:
NOES:
ABSTAIN:
ABSENT:
BY:
Charles Unsworth, Chairman
BY:
Bradley Hillgren, Secretary
PA2011-141
Planning Commission Resolution No. _
Page 6 of 7
EXHIBIT "A"
CONDITIONS OF APPROVAL
1. The design of the development shall not conflict with any easements acquired by the
public at large for access through or use of property within the proposed development.
2. All improvements shall be constructed as required by Ordinance and the Public Works
Department.
3. The existing broken and/or otherwise damaged concrete sidewalk panels along the
Ocean Boulevard frontage shall be reconstructed. Limits of the reconstruction shall be
determined by the City Public Works Inspector.
4. All existing drainage facilities in the public right-of-way, including the existing curb
drains along Ocean Boulevard, shall be retrofitted to comply with the City's on-site,
non-storm runoff retention requirements.
5. All on-site drainage shall comply with the latest City Water Quality requirements.
6. All existing private, non-standard improvements within the public right-of-way and/or
extensions of private, non-standard improvements into the public right-of-way fronting
the development site shall be removed.
7. New sod or low groundcovers, as approved by the City, shall be installed within the
parkway fronting the development site along Ocean Boulevard.
8. An encroachment permit is required for all work activities within the public right-of-way.
9. All improvements shall comply with the City's sight distance requirement. See City
Standard 110-L.
10. The existing ingress and egress and utilities easements shall be maintained.
11. The existing sewer lateral to be used for the future dwelling unit shall have a sewer
cleanout installed within the utilities easement per STD-406-L. All other laterals to be
abandoned shall be capped at the property line.
12. All unused water services to be abandoned shall be capped at the corporation stop.
13. In case of damage done to public improvements surrounding the development site by
the private construction, additional reconstruction within the public right-of-way could
be required at the discretion of the Public Works Inspector.
14. All applicable Public Works Department plan check fees shall be paid prior to review of
the lot merger and grant deeds.
PA2011-141
Planning Commission Resolution No. _
Page 7 of 7
15. Prior to recordation of the lot merger, the development of the parcels combined shall
conform to current zoning regulations pertaining to the number of dwelling units and the
distance between detached structures. The proposed parcel shall have one dwelling unit.
One structure shall be modified or demolished to achieve the required separation
between structures and density.
16. Prior to recordation of the lot merger, grant deeds indicating the changes in titles of
ownership should be submitted to the Public Works Department for review and
approval.
17. The lot merger and grant deeds reviewed and approved by the Public Works
Department should be filed concurrently with the County Recorder and County
Assessor's Offices.
18. No building permits may be issued until the appeal period has expired, unless
otherwise approved by the Planning Division.
19. Prior to issuance of the building permit for any new construction on the property, the
Planning Division shall verify recordation of the document with the County Recorder.
20. This approval shall expire unless exercised within 24 months from the date of approval
as specified in Section 20.93.050 of the Newport Beach Municipal Code.
21. To the fullest extent permitted by law, applicant shall indemnify, defend and hold
harmless City, its City Council, its boards and commissions, officials, officers, employees,
and agents from and against any and all claims, demands, obligations, damages,
actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and
expenses (including without limitation, attorney's fees, disbursements and court costs) of
every kind and nature whatsoever which may arise from or in any manner relate (directly
or indirectly) to City's approval of the 2808 and 2812 Ocean Boulevard Lot Merger
including, but not limited to, Lot Merger No. LM2011-002 (PA2011-141). This
indemnification shall include, but not be limited to, damages awarded against the City, if
any, costs of suit, attorneys' fees, and other expenses incurred in connection with such
claim, action, causes of action, suit or proceeding whether incurred by applicant, City,
and/or the parties initiating or bringing such proceeding. The applicant shall indemnify
the City for all of City's costs, attorneys' fees, and damages which City incurs in enforcing
the indemnification provisions set forth in this condition. The applicant shall pay to the
City upon demand any amount owed to the City pursuant to the indemnification
requirements prescribed in this condition.
PA2011-141
Attachment No. PC 2
Draft Resolution — To Reverse
PA2011-141
RESOLUTION NO. ####
A RESOLUTION OF THE PLANNING COMMISSION OF THE
CITY OF NEWPORT BEACH REVERSING THE DECISION OF
THE ZONING ADMINISTRATOR AND DENYING LOT MERGER
NO. LM2011-002 FOR A LOT MERGER FOR THE FOLLOWING
PROPERTY, UNDER COMMON OWNERSHIP: PORTIONS OF
LOTS 4, 5, AND 6 OF BLOCK 34 LOCATED IN CORONA DEL
MAR. ALSO INCLUDED IN THE APPLICATION IS A REQUEST
TO WAIVE THE REQUIREMENT TO FILE A PARCEL MAP, FOR
PROPERTIES LOCATED AT 2808 AND 2812 OCEAN
BOULEVARD (PA2011-141)
THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS
FOLLOWS:
SECTION 1. STATEMENT OF FACTS.
1. An application was filed by The John Guida Trust and the Julie Guida Trust, with respect
to properties located at 2808 and 2812 Ocean Boulevard, and legally described as
Portions of Lots 4, 5, and 6 of Block 34 of Corona del Mar requesting approval of a lot
merger.
2. The applicant proposes [project description a lot merger for the following property,
under common ownership, portions of Lots 4, 5, and 6 of Block 34 located in Corona
del Mar. Also included in the application is a request to waive the requirement to file a
parcel map
3. The subject property is located within the Single-Unit Residential (R-1) Zoning District
and the General Plan Land Use Element category is Single-Unit Residential Detached
(RS-D).
4. The subject property is located within the coastal zone. The Coastal Land Use Plan
category is Single-Unit Residential Detached (RSD-B).
5. A public hearing was held on September 14, 2011 in the City Hall Council Chambers,
3300 Newport Boulevard, Newport Beach, California. A notice of time, place and
purpose of the meeting was given in accordance with the Newport Beach Municipal
Code. Evidence, both written and oral, was presented to, and considered by, the
Zoning Administrator at this meeting.
6. On September 22, 2011, the Zoning Administrator's decision to approve Lot Merger No.
LM2011-022 was appealed by Mr. Clifford Jones, Ms. Joan Campbell, and Mr. John
Silva. The appeal was filed to further consider two findings, which the applicants felt were
not adequately addressed in the Zoning Administrator's decision.
7. The Planning Commission held a public hearing on October 20, 2011, in the City Hall
Council Chambers, 3300 Newport Boulevard, Newport Beach, California. The Planning
PA2011-141
Planning Commission Resolution No. _
Page 2 of 3
Commission considered evidence, both written and oral presented at this meeting. A
notice of time, place and purpose of the meeting was given in accordance with the
Newport Beach Municipal Code. Evidence, both written and oral, was presented to,
and considered by, the Planning Commission at this meeting.
8. Pursuant to Section 20.64.030.C, the public hearing was conducted "de novo,"
meaning that it is a new hearing and the decision being appealed has no force or
effect as of the date the call for review was filed.
SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION.
Pursuant to Section 15270 of the California Environmental Quality Act (CEQA) Guidelines,
projects which a public agency rejects or disapproves are not subject to CEQA review.
SECTION 3. REQUIRED FINDINGS.
The Planning Commission may approve a lot merger application only after making each of
the required findings set forth in Section 19.68.030.H of Title 19 (Subdivision Code: Lot
Mergers, Required Findings). In this case, the Planning Commission was unable to make the
required findings.
SECTION 4. DECISION.
NOW, THEREFORE, BE IT RESOLVED:
1. The Planning Commission of the City of Newport Beach hereby denies Lot Merger No.
2011-022 (PA2011-141), reversing the decision of the Zoning Administrator.
2. This action shall become final and effective ten (10) days after the adoption of this
Resolution unless within such time an appeal is filed with the City Clerk in accordance
with the provisions of Title 20 Planning and Zoning, of the Newport Beach Municipal
Code.
PASSED, APPROVED AND ADOPTED THIS 201h DAY OF OCTOBER, 2011.
AYES:
NOES:
ABSTAIN:
ABSENT:
BY:
Charles Unsworth, Chairman
Tmplt:03/08/11
PA2011-141
Planning Commission Resolution No. _
Page 3 of 3
BY:
Bradley Hillgren, Secretary
Tmplt:03/08/11
PA2011-141
Attachment No. PC 3
Zoning Administrator Action Letter
PA2011-141
"k COMMUNITY DEVELOPMENT DEPARTMENT
PLANNING DIVISION
3300 Newport Boulevard, Building C,Newport Beach, CA 92663
(949) 644-3200 Fax: (949) 644-3229
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ZONING ADMINISTRATOR ACTION LETTER
Application No. Lot Merger No. LM2011-002 (PA2011-141)
Applicant The John Guida Trust and The Julie Guida Trust
Site Address 2808 and 2812 Ocean Boulevard
2808 and 2812 Ocean Boulevard Lot Merger
Legal Description Portions of Lots 4, 5, and 6, Blk 34 of Corona del Mar
On September 14, 2011, the Zoning Administrator approved the following a lot merger
for the following property, under common ownership: portions of Lots 4, 5, and 6 of Block
34 located in Corona del Mar. Also included in the application is a request to waive the
requirement to file a parcel map. The property is located in the R-1 (Single-Unit
Residential) District. The Zoning Administrator's approval is based on the following
findings and subject to the following conditions.
Findings
A. Finding: The proposed project is in conformance with the California
Environmental Quality Act.
Facts in Support of the Finding:
A-1. The project qualifies for an exernptior from environmental review pursuant to
Section 15305 (Class 5 Minor Alterations in Land Use Limitations) of the
Implementing Guidelines of the California Environmental Quality Act (CEQA),
which consists of projects with minor alterations in land use limitations in areas
with an average slope of less than 20 percent, which do not result in any
changes in land use or density, including minor lot line adjustments not resulting
in the creation of any new parcel. This project is consistent with these
requirements.
B. Finding: Approval of the merger will not, under the circumstances of this
particular case, be detrimental to the health, safety, peace, comfort and general
welfare of persons residing or working in the neighborhood of such proposed use
or be detrimental or injurious to property and improvements in the neighborhood
or the general welfare of the City, and further that the proposed lot merger is
consistent with the legislative intent of Title 19.
PA2011-141
2808 & 2812 0. ,n Boulevard Lot Merger
September 14, 2011
Page 2
Facts in Support of the Finding:
B-1. The future development on the proposed parcel will comply with the Zoning Code
development standards.
B-2. The proposed merger will not cause future development to impact pubilc views of
the ocean as no public view presently exists.
B-3. The project site described in the proposal consists of legal building sites.
B-4. The lot merger to combine the existing legal lots by removing the interior lot lines
between them will not result in the creation of additional parcels.
B-5. The project is in an area with an average slope less than 20 percent and no
changes in use or density will occur as a result of the merger.
C. Finding: The lots to be merged are under common fee ownership at the time of
the merger.
Facts in Support of the Finding:
C-1 . The portions of lots 4,5, and 6 to be merged are under common ownership.
D. Finding: The lots as merged will be consistent or will be more closely compatible
with the applicable zoning regulations and will be consistent with other
regulations relating to the subject property including, but not limited to, the
General Plan and any applicable Coastal Plan or Specific Plan.
Facts in Support of the Finding:
D-1. The previously existing single-unit dwellings located on the subject sites will be
demolished, and the proposed lot would be redeveloped with a new single-unit
dwelling. Section 20.18.030 of the Zoning Code establishes minimum lot area and
width requirements. Each of the two existing lots meet the minimurn lot area
required, but do not meet the minimum lot width required (50 feet). The proposed
merger of the lots would create one lot which would comply with the minimum lot
width and lot area standards required by the Zoning Code.
D-2. The Land Use Element of the General P' i,:' ignates the subject site as Single-
Unit Residential Detached (RS-D), which is intended to provide primarily for single-
family residential units on a single legal lot and does not include condominiums or
cooperative housing. The Coastal Land Use Plan designates this site as Single Unit
Residential Detached (RSD-B) which provides for density ranges from 6.0-9.9
DU/AC. The existing development and proposed development of a single-unit
dwelling on the site are consistent with these designations.
F:W sers\KN\S hared'PA'sTAs-2011 TA2011-14 VIM2011-002 Actn Lttr.doc
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PA2011-141
2808 & 2812 O, n Boulevard Lot Merger
September 14, 2011
11aae 3
E. Finding: Neither the lots as merged nor adjoining parcels will be deprived of
legal access as a result of the merger.
Facts in Support of the Finding:
E-1. Vehicular access to and from the subject site and adjacent properties would remain
the same via an al!r y and an ingress and egress easement at the rear of the site.
F. Finding: The lots as merged will be consistent with the surrounding pattern of
development and will not create an excessively large lot that is not compatible
with the surrounding development.
Facts in Support of the Finding:
F-1. Corona del Mar consists of lots of varying shapes and sizes.The subject ts. as
merged, will result in a parcel with a width of 80 feet and area of 13,678 square
feet. Other nearby lots on Ocean Boulevard have lot widths as wide as 73 feet and
area as large as 13,325 square feet. The merger of the two lots it will not create an
excessively large lot in comparison to many of the existing lots in the surrounding
area.
F-2. Development within the R-1 Zoning District can have a maximum floor area 1.5
times the buildable area of the lot. The proposed parcel will not be developed
beyond this maximum square footage, and will be developed consistent with the
surrounding development.
In accordance with Section 19.08.030 of the Municipal Code (Waiver of Concurrent Parcel
Map), the Zoning administrator approved a waiver of the parcel map requirement since no
more than three parcels are eliminated.
G. Finding: That the proposed division of land complies with requirements as to
area, improvement and design, flood water drainage control, appropriate
improved public roads and property access, sanitary disposal facilities, water
supply availability, environmental protection. and other applicable requirements
of this title, the Zoning Code, the General Plan, and any applicable Coastal Plan
or Specific Plan.
Facts in Support of the Finding:
G-1. The existing lots currently comply with the design standards and improvements
required by the Zoning Code, General Plan, and Coastal Land Use Plan.
G-2. The proposed lot merger combines the lot portions into a single parcel of land and
does not result in the elimination of more than three lot portions.
G-3. Approval of the proposed lot merger would remove the existing interior lot lines, and
allow the property to be redeveloped as a single site. The land use, density, and
F:1Users1PLN'Shared\PA's\PAs-201'IPA2011-1411LM2011-002 Actn Lttr.dac
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PA2011-141
2808 & 2812 O, -4n Boulevard Lot Merger
September 14, 2011
Page 4
intensity would remain the same. The proposed lot would comply with all design
standards and improvements required for new subdivisions by Title 19, the Zoning
Code, General Plan, and Coastal Land Use Plan.
Conditions
1. The design of the development shall not conflict with any easements acquired by
the public at large for access through or use of property within the proposed
development.
2. All improvements shall be constructed as required by Ordinance and the Public
Works Department.
3. The existing broken and/or otherwise damaged concrete sidewalk panels along
the Ocean Boulevard frontage shall be reconstructed. Limits of the reconstruction
shall be determined by the City Public Works Inspector.
4. All existing drainage facilities in the public right-of-way, including the existing curb
drains along Ocean Boulevard, shall be retrofitted to comply with the City's on-
site, non-storm runoff retention requirements.
5. All on-site drainage shall comply with the latest City Water Quality requirements.
6. All existing private, non-standard improvements within the public right-of-way
and/or extensions of private, non-standard improvements into the public right-of-
way fronting the development site shall be removed.
7. New sod or low groundcovers, as approved by the City, shall be installed within
the parkway fronting the development site along Ocean Boulevard.
8. An encroachment permit is required for all work activities within the public right-
of-way.
9. All improvements shall comply with the City's sight distance requirement. See
City Standard 11 O-L.
10. The existing ingress and egress and utilities easements shall be maintained.
11. The existing sewer lateral to be used for the future dwelling unit shall have a
sewer cleanout installed within the utilities easement per STD-406-L. All other
laterals to be abandoned shall be capped at the property line.
12. All unused water services to be abandoned shall be capped at the corporation
stop.
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PA2011-141
2808 & 2812 G. An Boulevard Lot Merger
September 14, 2011
Page 5
13. In case of damage done to public improvements surrounding the development
site by the private construction, additional reconstruction within the public right-
of-way could be required at the discretion of the Public Works Inspector.
14. All applicable Public Works Department plan check fees shag be paid prior to
review of the lot merger and grant deeds.
15. Prior to recordation of the lot merger, the development of the parcels combined
shall conform to current zoning regulations pertaining to the number of dwelling
units and the distance between detached structures. The proposed parcel shall
have one dwelling unit. One structure shall be modified or demolished to achieve
the required separation between structures and density.
16. Prior to recordation of the lot merger, grant deeds indicating the changes in titles
of ownership should be submitted to the Public Works Department for review and
approval.
17. The lot merger and grant deeds reviewed and approved by the Public Works
Department should be filed concurrently with the County Recorder and County
Assessor's Offices.
18. No building permits may be issued until the appeal period has expired, unless
otherwise approved by the Planning Division.
19. Prior to issuance of the building permit for any new construction on the property,
the Planning Division shall verify recordation of the document with the County
Recorder.
20. This approval shall expire unless exercised within 24 months from the date of
approval as specified in Section 20.93.050 of the Newport Beach Municipal
Code.
21. To the fullest extent permitted by law, applicant shall indemnify, defend and hold
harmless City, its City Council, its boards and commissions, officials, officers,
employees, and agents from and against any and all claims, demands, obligations,
damages, actions, causes of action, suits, losses, judgments, fines, penalties,
liabilities, costs and expenses (including without limitation, attorney's fees,
disbursements and court costs) of every kind and nature whatsoever which may
arise from or in any manner relate (directly or indirectly) to City's approval of the
2808 and 2812 Ocean Boulevard Lot Merger including, but not limited to, Lot
Merger No. LM2011-002 (PA2011-141). This indemnification shall indude, but not
be limited to, damages awarded against the City, if any, costs of suit, attorneys'
fees, and other expenses incurred in connection with such claim, action, causes of
action, suit or proceeding whether incurred by applicant, City, and/or the parties
initiating or bringing such proceeding. The applicant shall indemnify the City for all
of City's costs, attorneys' fees, and damages which City incurs in enforcing the
indemnification provisions set forth in this condition. The applicant shall pay to the
F:lUsers1PLNISharedlPA'sWAs-20111PA2011-1411LM2011-002 Actn Lttr.doc
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PA2011-141
2808 &2812 O. .n Boulevard Lot Merger
September 14, 2011
Page 6
City upon demand any amount owed to the City pursuant to the indemnification
requirements prescribed in this condition.
PUBLIC NOTICE
Notice of this application was mailed to all owners of property within 300 feet of the
boundaries of the site (excluding intervening rights-of-way and waterways) including the
applicant and posted on the subject property at least 10 days prior to the decision date,
consistent with the provisions of the Municipal Code.
APPEAL PERIOD: Lot Merger applications do not become effective until 10 days
following the date of action. Prior to the effective date the applicant or any interested party
may appeal the decision of the Zoning Administrator to the Planning Commission by
submitting a written appeal application to the Community Development Director. For
additional information on filing an appeal, contact the Planning Division at (949) 644-3200.
By:
Jaime Murillo, Zoning Administrator
JM/ks
Attachments: ZA 1 Vicinity Map
ZA 2 Lot Merger Map
F:1Users1PLN%SharedTXsWAs-2011 WA2011.1411LM2011-002 Adn Lttr.dac
Tmplt:04/18111
PA2011-141
Attachment No. ZA I
Vicinity Map
PA2011-141
2808 & 2812 O� .n Boulevard Lot Merger
September 14, 2011
Page 7
VICINITY MAP
41
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Lot Merger No. LM2011 -002
PA2011-141
2808 and 2812 Ocean Boulevard
F:\Users\PLN�SharedLOA's1PAs-20111PA2011-1411LM2011-002 Actn Lttr.doc
Tmplt:04/18/11
PA2011-141
Attachment No. ZA 2
Lot Merger Map
Not Included — See PC Attachment No. 6
PA2011-141
Attachment No. PC 4
Correspondence, Petition, and
Exhibits (Zoning Administrator Hearing)
PA2011-141
September 14,2011.
To whom it may concern.
The subject vicinity along Ocean Boulevard is sorely in need of renewal and improvement. In that regard.
I have no objection to the subject proposed lot assembly along Ocean Boulevardas such. However I do
have concerns as regards the related subsequent residential development.
It would appear that,as proposed,this development may result in an excessive structural height and bulk
not intended in the terms of the original legal deed restrictions governing the development of these parcels,
If approved as proposed,the development would likely adversely affect the adjacent properties governed by
the deed restrictions and other neighboring properties as well.
Thus the developer should be encouraged proceed to renew these lots but with a modestly redesigned
project more in keeping with the intent of the deed restrictions, especially as regards overall height
considerations.
Sincerely
John H. Anderson
214 Goldenrod Avenue
949-723-1556
PA2011-141
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f e orence: an t:8th man tvtl.= i rcart `del tiv r,Via.. 'Lot.l tgdt
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f eC ai i {i S r ptidnr Pd iohss of LVSV 4, Jk § L V34 J�4 34 VA' 4¢ {lr{ $ T r
App4cadt The John Guida Trustend The Julie GnAa Trust,
We the undersignedchallenge this profect based can the f`pnding- .and listed €r1 the
zornirig Administrator Zoning Action L
,9 B, Finding: Approval of the merger will riot under the circ tars of tf�s parti lar
se, be detrimental to ti§e health, salettr, aca, comfort,and general welfare of
pe'sorss cesfdir rir+ txrkirag ir# lglmtatmrlt d b$ h flro i ase sr n .
cl neat or irs . . i rrver tra t n or ttt
onerai wlith
the legislative intent of Title 19s
E. Finding er the lots as mergednor adjoining parcels will be de hived of legal
access as a result of the
merger-
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THAT W"RF UR, the undersigned MALIMR S. McEACOM
and LILLIAN M. MOW19H11, his vire, are the .mars of
Lots J and 4 and the undersigned, PAUL 0. CLRLAXD and
SYLVIA A. CLELAND, his wife, are the owners of Lot* $ i
and b, all in Block 34, Reeubdlvialon of Corona del Mars f
se shown on Map thereof in book 4, at page 67, of ]U S-
111 cellaneous Maps, "cords of Orange County, State of
California, and '
i
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FIRAS, the parties hereto mutually desire to re- 1
strict the height of buildings which may hereafter be t
placed or constructed upon said property, i
i
90M. TH1fRE";$, in consideration of the prwaisoe `
and of the advantages derived by each Df the parties h,ro-
to by the faking of this declaration and further in =on-
g nideretion o: the benerita which will aaerue to said real
property and to each and every parcel thereof,
:.i 15 HHRF Y ORMft1ALLY COVZWANTED, AGKU&,A A,= CACCIARBD -
that cald land and each end avery p^.art and peroel thereof,
except the Horthoasterly 96 foot Chs;-evf, steel 1, from and
3eter Che date hereof, be subject to the following reatric- _
i
tiona axndjor covenants which she" apply to and be bind-
Ing �r)> n ha r.ertla> hereto and rich c, thvir sisacasears
ana adsl'-na, as rollowa9
That any building or structure pieced or canatructed
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OP on said real proplrty, or any portion thereof. shall be
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PORT 9E builds
ng shall hers 1 maxim+m pitch of that �
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Is to say, such roof shall haw a naatnma rise of U inches
� to each 12 Inches of roof span. 7
Tho covenants and doclarativnt hei :cnt_'_nzd are
made for the benefit of ouch lot or parcel as against each
y
and every other of said lots or parcels and for the bene-
i
i fit of the owner or owners of each and every other lot or
parcel, and that said covenants, restrictions &Wor declar-
ations anal operate as a covenant running with the land and
the same is hereby created as a mutual, equitable servitude
in favor of each parcel an against each and every other
1 parcel of said land.
It is hereby expressly declaredthatthe foregoing
j covenantal restrictions and declarations shall inure to the
jbenefit of each and all of the parties hereto and shall
extend to and bind the successors and assigns of the parties
hereto and each of them and that any breach of said covenants,
i res trietione and/or declarations may be enjoined, abated or
remedied by appropriate proceedings by t!:e parties hereto or
I
111 by either of them, their and each of their gucceasoro or
assign•.
Any provision heroin to the contrary notnith,atanding,
a violation of the covenants and reotrittl.ons harein con-
tained shall not dofeat or render invalid the lion of any
mortgago or deed of trust made in good feith and for value.
that in the event of a reconvoyance or said property,
or any portion thereof, by the Truetce nzaod In any dood of
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the valiaaty or oontlnea•ttaa or tce eoveazau, reetrietl.ns
or doslsrstio" Derma cont.•tnedy but the •Aro "ll resatln
In full Toros and *"*at for the bsnaftt of eeah party
hsrato and for the bonerit of the a-cassolva ow"r- or oeaaore
- �f "Id teal rra,^srty ft?W seen end @Tera jut a.-
IN
:IN IUTVMS WMMOT the parties hereto have sat thalr
hande and seals this 25th day of April. 1911,
Star 8. NOWWOWharn
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STATE cr CAIJ"HtiA 3
f County of We Angeles ) Tae
On thio 25th day of April, 119$1@ before see, the uotlor-
f signed Rotmry ftblle in and fur said ea=tgg and atsto„ par-
zonally appeared WAGTIM S. SoblCitMX. LILLIAN W. KcRAGWON,
PAUL G. CISLAND and WYLVIA A. Ctgj.M. knoaia to we to bm
persons adobes nmeas ase aubacribed 4 the w1thin 4nstruw�nt
end aeknm l"Kzd Haat 4?wy cv xscstod/iF.e a
1
a r oust y
of Loa A0101es. State or ca ll Pornl a
My Cossaiomion gapireet fob 1. 1952 ..
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FOR
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FOR VALUABLE CONSIDERATION, receipt of which Is hereby acknowledged,
PAUL 0. CLELAND and SYLVIA A. CLELAND. his wife,
do hereby GRANT to WALTER S. X:?AChM and MILIAN M. McEACFZRN, his
wife, as Joint Tonsttts,
the real property in the County or Orange, state of Cal irornia, des-
cribed set
An easement for ingress and *gross, pipe lines, polo linea and other
public utilities over, across and ander that portion of Lot 5 in
Block 34 of Reaubdivision of Corona del Mar, as shown on a map re-
corded in Book 4, at page 67, of Miscellaneous Maps, records of Orange
County, California, lying within the following described parcelof
land, said easement to be for the benefit of and to be used in common
by the owners of land in Lots 3, 4, 5 sad 6 of said Block 341
BEGINNING at the most Easterly corner of maid Int 5
,.-.. and running thence Rorthwestsrly, along the Northeasterly
line of said Lot 5, 10 fast; thonma Southeasterly par-
allel with the Southoostorly line of said Lot 5, 96 feat;
thence Northwestarly parallel with the Northeasterly line
-
of said lot 5, 10 feet; thence Southwesterly parallel with
the Southeasterly line of said Lot 5, 20 feet; thence
Southeasterly parallel with the Northosaterly line of said
Lot 5 and the Northeasterly line of Yat 4 in said Block 31 ,
40 feet; thence Northeasterly parollol with the North-
west*fly line of said Yat h, 20 fast; thence Northwesterly
parallel with the Northeasterly line of said Lot 4, 10 feet;
thence Northeasterly parallel with the Northwesterly line
Tol�
PA2011-141
x2187 FM234
Of said Lot 4, 96 foot to the Northeasterly line of said
Lot 4; thence MOPthwoaterly along said Northeasterly line
10 Poet to the point of beginning.
ALSO an easement for the placement of garbage, rubbish, etc., over
the Northeasterly 3 feet of the Northwesterly 10 feet of the South-
easterly 20 feet of said Lot 5, said easement to be for the benefit
of and to be used in common by the owners of land in Lots 3, 4, 5
and 6 of said Block 34.
SUS=T TOs -
Taxes for the fiscal year 1951-52 --•- - ""y
Covanants, conditions, reservations,_restrictions, rights .. '
and rights of way and easements of record. -
Datedm J; 1951 f'
( t7
Paul Cleland
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STATS OF CALIPOMIA ) ' Space below for .ecor er's use oa y
county of Los Angeles) as °
on ^ , 1951, before aa,
the era gns , a Notary Public in
anI or said county and state, par- '
aonally appeared PAM O. CLSTAND '
and SYLVIA A. CLELM, mown to a0 '
to be the persons w*ose names are sub- * 68COSDND AT NXQGM 03
scribed to the within instrument and 6 aatJAMCE=LE COMPMv
acknowledged that they executed the 3 -
same. ' MAY 11.1951 d 9M XM.
WITNESS my hwA and offleial seal. + BM2187 PAGE233
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Attachment No. PC 5
Appeal Statement
- 20$ RHPAMCAof N 3eeeh 546,3229 =x-
Appeal Application
For Use only
a j9 v�'G7Efi naty Iie lc�p rtt D Data App l Red ? �
Planning Division
330-0 NoWPOtt BOUbWaro,Nmvpor4 Beach, CA 92663
g
(94,9)644-3204 Telephone )MA-33229 FaosKfia h;'
MM"inmrdheachon.mvd.. .<`
Application to appeal the decision of tfss, 51 ming &dminIstnator
0 Planning Director
13 ieaft Officer
ppeflent Inf ati n:
Nam-e(~3):L 'd"Yc..s? 4 "2..... -^„ N! C 't7 KI 3 t I—. 'iA
Address: �, est L l t l ' G. ,�a � �r
phone. _ca )5 e ' /it r 7 "" ®l { ��: 1 tv ? X I t
Appealing Application Regar`din .
Name of Applicant: 61- p^y A V. bete of Decision:
Project No. (FSA): FA 2 o i l 14 Activity No.: t �
Site dress:
Description: -t' i C r- 4�- — p
Reason(s)for Appeal (attach a separate sheet if necessary):
Lj -A E:
Along wMi application, plame submit the following;
Twelve (12) llxl7sots of the project plans
One set of malling labels (Avery 5960) for property owners within 300 ltd radius of subject property
r�
Signature of ppellent: �t�� m Dalaz �t l
SG1xJsars�tt�iidl9 to Iter ria#V�pp7f�
PA2011-141
We do not feet the findings mferred to "B-findings, E-findings" have been adequately
addressed. The findings were as follows:
Approval of the merger Avi tj not, under the circurns,ances or this particular case, be
detrimental to the health< safety, and weverin rveifare Of petsogs residing
or working "t
R Jim the net of such proposed use or wdeuirazilialorini2liousto
prr ettj_an ntprinygnientioo
n the_ e ighborlicod or the general welfare of the Citi',and
_L Tl
further that the proposed lot merger is consistent with the legislative intent ofTille 19.
Neitherthe lots as merged nor adjoining parcels will be deprived of legal access as a
result of the merger, (EAsernea-0
By the City allowing the inter tot lines to be removed by the tot"merger, the City has
faccording to the lbrinula for the deed restriction on crich Im-) given him the opportunity
to break the current restrictions and go to an increase of height addition by 7,5 feet plus
considerable increase in the bulk of his structure.
In addition to the above we feel that the total economic irapact on surrounding properties,
the loss of enjoyment of the view (deed restriction)and the potential undermining of the
stability of the adjacent properties had not been adequately addressed and can only be
accessed by experts in those areas,
PA2011-141
Attachment No. PC 6
Proposed Lot Merger Map
FIAZUi 1-141
EXHIBIT 'A'
CITY OF NEWPORT BEACH
LOT MERGER No. LM_ 11
(Legal Description)
Owners Existing Parcels Proposed Parcels
AP Number Reference Number
THE JOHN GUIDA TRUST, DATED 9/17/2010, AS TRUSTEE 052-061 -26 PARCEL 1
0.314 AC
THE JULIE GUIDA TRUST, DATED 9/17/2010, AS TRUSTEE 052-061 -25 (gross)
0.296 ACI (net)
SHEET 1 OF 1
PARCEL 1:
In the City of Newport Beach, County of Orange, State of California being all of Lots 4 through 6 in Block 34 of the
Re-Subdivision of Corona Del Mar, as per map recorded in Book 4, Page 67, of Miscellaneous Maps in the Office of
the County Recorder of said Orange County.
EXCEPTING THEREFROM the Northeasterly 96.00 feet thereof.
ALSO EXCEPTING THEREFROM the Southeasterly 10.00 feet of said Lot 4.
Containing 0.314 Acres (13,697 sq. ft.), more or less.
All as shown on Exhibit 'B' attached hereto and by this reference made a part hereof.
SUBJECT TO EASEMENTS, COVENANTS, CONDITIONS, RESTRICTIONS, RESERVATIONS, RIGHTS,
RIGHTS OF WAY, AND OTHER MATTERS OF RECORD, IF ANY.
�ANp
OLAV S. o
MEUM �0 PREPARED BY Mq OR UNDER MY
PRIL 08, 2011.
No. 4384
s9Te CF CAI\F
OLAV S. MEUM LS 4384
JN 14481
EXHIBIT 'B'
CITY OF NEWPORT BEACH
LOT MERGER No. LM_ 11
(Map)
Owners Existing Parcels Proposed Parcels
AP Number Reference Number
THE JOHN GUIDA TRUST, DATED 9/17/2010, AS TRUSTEE 052-061 -26 PARCEL 1
0.
THE JULIE GUIDA TRUST, DATED 9/17/2010, AS TRUSTEE 052-061 -25 AC (gross)
0.229696 AC net
SCALE: 1 "=50' SEE PAGE 2 OF EXHIBIT 'B' FOR SHEET 1 OF 2
EASEMENT & SURVEYOR'S NOTE.
I ISI I
L - - - - - - - -dal- - - - - - - - --�
_ w
N 50'00'00"X0.00'
77
ALLEY—
N Z
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U
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U' N 50'00'00" W 145.00' �\ ��� I I I I W
65.00' ,4 80.00 i
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-AND s
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05020
�Q MEUM
N°. 4384
35'Ok/i P
N?1�R°djOl `P` 9Te OF, CA0E
R=10.00' QC
A=94'23'56"
LEGEND: L=16.48'
PWN
M R UNDER MY
EXISTING LOT LINE TO REMAIN DIIL 8, 2011
EXISTING LOT LINE TO BE REMOVED
OLAV S. MEUM LS 4384
JN 16681
EXHIBIT 'B'
CITY OF NEWPORT BEACH
LOT MERGER No. LM 1?—_,_
(Map)
Owners Existing Parcels Proposed Parcels
AP Number Reference Number
THE JOHN GUIDA TRUST, DATED 9/17/2010, AS TRUSTEE 052-061 -26 PARCEL 1
0.
THE JULIE GUIDA TRUST, DATED 9/17/2010, AS TRUSTEE 052-061 -25 AC (gross)
0.229696 AC net
SHEET 2 OF 2
EASEMENT NOTE:
AN EASEMENT FOR INGRESS AND EGRESS, PIPE LINES, POLE LINES AND OTHER PUBLIC
A UTILITIES FOR THE BENEFIT OF AND TO BE USED IN COMMON BY THE OWNERS OF LAND IN
LOTS 3, 4, 5 & 6 OF BLOCK 34 AS RECORDED ON MAY 11, 1951 IN BOOK 2187, PAGE 233
& BOOK 2187, PAGE 235, BOTH OF OFFICIAL RECORDS.
10' WIDE EASEMENT FOR SEWER PURPOSES RECORDED IN BOOK 2165, PAGE 614 OF OFFICIAL
RECORDS, AS SHOWN ON PARCEL MAP RECORDED IN BOOK 65, PAGE 21 OF PARCEL MAPS.
10' WIDE EASEMENT FOR SEWER PURPOSES RECORDED IN BOOK 2165, PAGE 611 OF OFFICIAL
RECORDS, AS SHOWN ON PARCEL MAP RECORDED IN BOOK 65, PAGE 21 OF PARCEL MAPS.
SURVEYOR'S NOTE:
A PORTION OF THE LAND INCLUDED WITHIN THIS LOT MERGER AS DESCRIBED IN PARCEL
2 OF THE LATEST GRANT DEED RECORDED ON DECEMBER 20, 2010 AS INSTRUMENT No.
2010000708142 O.R. AGREES WITH THE LAND SHOWN AS PARCEL 1 OF A PARCEL MAP
RECORDED ON DECEMBER 5, 1974 IN BOOK 65, PAGE 21 OF PARCEL MAPS.
JN 1atE1
HA21JI 1-141
EXHIBIT V
CITY OF NEWPORT BEACH
LOT MERGER No. LM--�l
(Site Map) -
Owners Existing Parcels Proposed Parcels
AP Number Reference Number
THE JOHN GUIDA TRUST, DATED 9/17/2010, AS TRUSTEE 052-061 -26 PARCEL 1
0.314 AC (gross)
THE JULIE GUIDA TRUST, DATED 9/17/2010, AS TRUSTEE 052-061 -25 .
0.296 AC net
SCALE: 1 "=50' SHEET 1 OF 1
I ISI I
L - - - - - - - J < L - - - - - - - J I
bi
— ALLEY — -
_ N 50'00'00'_W 2T0.00' _ Z
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Z of I I i IWC I I I
03
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O I 2 I I IAo I o,
0 N 50'00'00" W 145.00'
80.00 1 �1 „,• o
•; ` I � to
I ' I I 0 I I ij I
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A=94'23'56" s� Q
L=16.48' qTe A��F��a
LEGEND: OF C
EXISTING LOT LINE TO REMAIN PRWLN
Y OR UNDER MY
————— EXISTING LOT LINE TO BE REMOVED DIN: R11 8, 201 7
OLAV S. MEUM LS 4384
JN 14461
PA2011-141 Item No . 4a
Materials Received
Appeal of Lot Merger
�jLVD J PA2011-141
n ��1:7 ��_A-
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PA2011-141 Correspondence
Item No . 4b
Appeal of Lot Merger
PA2011-141
Octobor 3, 2011
To Whom It May Concern,
As you requested, here is relevant case law relating to CC&R's, and your deed
covenant In particular.The cases cited directly relate to your current situation. It Is also more
than relevant in that the first one was an CA appellate court case"[Citation.]"(King v. Kugler
(1961) 197 Cal.App.2d 651,655.)"that affirmed the prior courts ruling as to"Intent"of height
restrictions and one story residence.That case has been cited In dozens of cases(Including
those Indicated below) which all support your assertion that these restrictive covenants
(Campbell &Silva;et at;v. Guide), as to the lots in question, are not vague and need to be
enforced as to their intent.
[1]"Although the instrument does not expressly declare the Intent of the grantor to preserve the
view of lot owners, it is obvious from the language used, the topography and the [197 Cal.App.
2d 655]finished ground elevations of the tract and the general physical appearance of the land
and the existing structures thereon, that the purpose of the height restriction in the plan Is to
protect the lot owner's view from one elevation to another. [2]Contrary to appellant's claim, we
see nothing vague, ambiguous or uncertain in the meaning of the restrictive phrase "one story In
height,"or as to what was intended thereby. It does not appear, nor have appellants contended,
that the words have a technical, special or peculiar meaning;they merely argue that to control
the height the grantor"should"have inserted a limit in feet and Inches or other language from
which the Intended maximum height could have been inferred exactly.Therefore,the phrase is
to be interpreted in its ordinary and popular sense rather than according to some strict legal or
technical meaning. "'This ordinary and popular sense is to be related to the circumstances
under which the words are used, having in mind the purpose of the contract and the general
situation which brought It Into existence'(12 Cal,Jur.2d 353-354.)" (Harrison v. Frye, 148 Cal.
App. 2d 626, 628 [307 P.2d 76].)"[3]The document expressly declares that the restrictions and
conditions contained therein shall "run with the land and shall be binding on all parties"), apply
to all lots in the tract and be mutually enforceable, reflecting a specific Intent to create
enforceable restrictions. (Gamble v. Fierman,82 Cal.App. 180 [255 P.269]; Martin v. Holm, 197
Cal. 733[242 P. 718].)That the restrictions and conditions contained In the declaration of record
apply, as therein provided,to all lots in the tract and were expressly carried into the deeds, Is
found in the language of each deed wherein the conveyance is specifically made subject to t?eeFr�Fo
"covenants, conditions, restrictions, reservations, easements, rights and rights of way of 004f41
B�
record."(Smith v. Rasqul, 176 Cal,App. 2d 514 [1 Cal.Rptr. 478].) OCA LN�jy
o°F�F�oAr8�0�i
T
ti Ftir
%aR'P BEAOt'
PA2011-141 Planning Commission-10/20/2011
4b Additional Materials
The trial court's reliance on the Webster's Dictionary definition constitutes an acceptable
manner of ascertaining the ordinary and popular usage of words in the English language. "The
same rules that apply to Interpretation of contracts apply to the interpretation of CC&R's. "[W]e
must independently interpret the provisions of the document. . . . It is a general rule that
restrictive covenants are construed strictly against the person seeking to enforce them, and any
doubt will be resolved in favor of the free use of land. But it Is also true that the "'Intent of the
parties and the object of the deed or restriction should govern, giving the instrument a just and
fair interpretation.""" (Citation.)" (Chea v.Amanda Goldt Property Management(2006) 143
Cal.AppAth 1360, 1377.) When the issue turns on the meaning of a phrase employed in
CC&R's, "the phrase is to be interpreted In its ordinary and popular sense rather than according
to some strict legal or technical meaning. "'This ordinary and popular sense is to be related to
the circumstances under which the words are used, having in mind the purpose of the contract
and the general situation which brought it into existence."
"[Citation]' [Citation]' [Citation]' [Citation]"
1. King v. Kugler(1961) 197 Cal.App.2d 651, 655,
2. ZABRUCKY v. McAdams, Cal:Court of Appeals,2nd Appellate Dist., 7th Div. 2008
3. Cal.App. 4 Dist,2009. Monarch Point Homeowners Ass'n v.Arditi, Not Reported In
Cal.Rptr.3d, 2009 WL 1838286(Cal.App. 4 Dist.)
4. Seligman v. Tucker(1970)6 Cal,App. 3d 691[86 Cal.Rptr. 187)
King v. Kugler [197 Cal. App. 2d 651]
[Civ. No.25708. Second Dist., Div. One. Dec. 4, 1961.]
WALTER F. KING at al., Plaintiffs and Respondents, v. ROBERT L. KUGLER, JR., et al.,
Defendants and Appellants.
COUNSEL:
Robert C. Pannell for Defendants and Appellants.
Raymond L. Winters for Plaintiffs and Respondents.
OPINION:
LILLIE, J.
Appeal is taken from a judgment enjoining defendants from building any structure of a height
exceeding that of a single-story dwelling presently on the premises.
The following factual background is taken from an agreed statement. Plaintiffs and defendants
reside in adjacent houses built in a 174-lot tract by the original grantor,Allied Gardens Corp.
Both parties purchased their homes from Allied in 1952. Prior thereto, the original grantor
recorded a declaration of conditions and restrictions, the terms of which applied to all lots in the
tract;the deeds thereafter given to the 174 lot owners, including the parties herein, were made
subject thereto.Although they did not recite the individual restrictions[197 Cal.App. 2d 6531 and
conditions contained in the declaration, the deeds were made specifically subject to"covenants,
conditions, restrictions, reservations, easements, rights and rights of way of record,"and therein
expressly so stated.The restriction in question contained In the declaration, and of record,
provides:"2.That no structures shall be erected, altered, placed or permitted to remain on any
11
PA2011-141 Planning Commission-10/20/2011
4b Additional Materials
residential building plot other than one detached single family dwelling not to exceed one story
in height and a private garage for not more than three cars, together with the customary fences,
walks and out buildings incidental to residential use'; and under paragraph 13, "each and all
covenants and conditions"contained therein shall"run with the land, and shall be binding on all
parties."Later defendants obtained a building permit from the City of Torrance to build a garage
with a room overhead, and began construction. The proposed structure was to have a garage
floor and ceiling and, above the garage, a room with a floor and ceiling, Plaintiffs,contending
that the building exceeded"one story in height" in violation of Condition 2, brought the within
action for injunctive relief.
The trial court found that Allied Gardens Corp. had recorded the declaration applying to all lots
Including 40 and 41 prior to their sale;that defendants had constructive notice of the
declaration;that defendants' lot 41 is at a lower level than plaintiffs' lot 40;that there was an
extensive view from plaintiffs' lot, Important to the property and of immeasurable value to
plaintiffs, and they relied on the restrictions for the preservation of their view when they
purchased the property;that the proposed structure would impair plaintiffs'view; that
defendants' plans for construction appear to be in conflict with Condition 2 in that the
contemplated addition would embrace a structure of more than one story in height.
Appellants, arguing that building restrictions are strictly construed since there are public policies
in favor of the free use of land and such restrictions must be certain and clear before they can
be enforced by Injunctive proceedings (Wing v. Forest Lawn Cemetery Assn., 15 Cal, 2d 472
(101 P.2d 1099, 130 A.L.R. 120); Werner v, Graham, 181 Cal. 174 [183 P. 945]), contend that
the phrase used in Condition 2"not to exceed one story in height,"is too uncertain to support
injunctive relief.Admitting "[t]he conceded purpose of the height restriction in this case was to
preserve an upper owners'view," appellants also submit, somewhat obscurely[197 Cal.App. 2d
654]and without argument or citation of authority, that the "restriction falls to spell out this
intent." (A.O.B., p. 3.)
The declaration recorded by the grantor sets up a comprehensive and uniform plan of
restrictions for the Improvement of the entire tract and for the benefit of each lot and its owner.
The document expressly declares that the restrictions and conditions contained therein shall
"run with the land and shall be binding on all parties" (Condition 13), apply to all lots in the tract
and be mutually enforceable, reflecting a specific intent to create enforceable restrictions.
(Gamble v. Fierman, B2 Cal,App. 180 [255 P. 269]; Martin v. Holm, 197 Cal. 733 [242 P. 718j.)
That the restrictions and conditions contained in the declaration of record apply, as therein
provided, to all lots In the tract and were expressly carried into the deeds, Is found in the
language of each deed wherein the conveyance is specifically made subject to "covenants,
conditions, restrictions, reservations, easements, rights and rights of way of record." (Smith v.
Rasqui, 176 Cal.App. 2d 514[1 Cal.Rptr. 478].)
The general purpose of restrictions and conditions is ordinarily expressed in the instrument
creating them. In the instant case the language of the declaration reflects the clear Intent and
desire of the grantor,for the improvement of the entire property and for the benefit of each lot
and its owner, to formulate a common plan--to confine the land to residential purposes
exclusively (Condition 1), specifically restricting the structures to single family dwellings not to
exceed one story in height,three car garages and incidental out buildings (Condition 2) and
fences, walls, et cetera, of a certain height(Condition 10);and the instrument so states. It also
requires, in order to enforce this common plan, approval by a committee of all building and
alteration plans for conformity and harmony of external design with "existing structures"and "as
to location of the building with respect to topography and finished ground elevations." (Condition
3.)The language of the deeds referring to the conditions and restrictions of record and the
III
PA2011-141 Planning Commission-10/20/2011
4b Additional Materials
recorded declaration containing the same, makes it clear that the lots conveyed were subject to
the common plan set forth therein. (Weston v. Foreman, 108 Cal.App. 2d 686 [239 P.2d 513);
Kent v. Koch, 166 Cal.App.2d 579 [333 R2d 411].)
[1]Although the Instrument does not ex ressl declare the Intent of the grantor to preserve the
view of lot owners, it is obvious from the fan-guano used the topoora_hy and the[197 Cal.App.
2d 655]f n s e group elevations of the tract and the general physical appearance of the land
and the exists structures thereon,that the purpose of the height restriction inthe plan is to
protect the lot owner s v ew rom one a eva on o apo or.Any suggestion that is purpose was,
Instead, o prevent the construction omuff1plee family awellings or apartments, is not well taken,
for of res r c ons n e ec ora on express y con no a use o e an o residential
purposes exclusively"(Condition 1 and t e ots specifically to"one detached single family
dwelling."(Condition 2.) (See discussion In Weber v. Groner, 137 Cal.App. 2d 771 [291 R2d
173],)
2]Contrary to appellant's claim,we see nothing vague, ambiguous or uncertain In the meaning
of the restrictive phrase"one story in height,"or as to what was intended thereby. It does not
appear, nor have appellants con en at�wo-r s have a technical, special or peculiar
meaning; ey merely argue that to control e height the grantor"should"have inserted a limit
In feet an nc es or other iange rf om which theTfended max mum eight could have been
Inferred exactly. Therefore, thephr�be interpre�te n ts__or_nary an popu ar sense
rather than according to some strict legal or technical meaning. "'This ordinary and popular
sense Is to be related to the circumstances under which the words are used, having in mind the
purpose of the contract and the general situation which brought it into existence' (12 Cal.Jur.2d
353-354.)" (Harrison v. Frye, 148 Cal.App. 2d 626, 628[307 P.2d 76].)The words"one story in
height"in Condition 2 are simply and concisely used;construed in the light of the entire
Instrument(Paddock v. Vasquez, 122 Cal.App. 2d 396[265 P.2d 121]) and the general plan and
appearance of existing structures established in the tract(Martin v. Holm, 197 Cal. 733[242 P.
718]), and given their plain,ordinary and popular meaning (Wood v. Mandrllla, 167 Cal. 607
[140 P. 279];Weber v. Graner, 137 Cal.App. 2d 771 [291 P.2d 173]; Harrison v. Frye, 148 Cal.
App. 2d 626[307 P.2d 76)),we can only conclude, as did the trial court, that a structure not to
exceed "one story in height"neither encompasses nor contemplates defendants' proposed
structure, which is to have a garage floor and calling and a room with a floor and ceiling above
the garage.
Resorting to the popular and common meaning of the phrase"first class buildings only"as used
In a like restriction, the court in Harrison v. Frye, 148 Cal.App. 2d 6261307 P.2d 76], [197 Cal.
App. 2d 656] held such language to be certain in its meaning and intent. Similarly we find the
popular and common usage of the phrase"one story in height"to render the restriction
sufficiently clear and certain to support injunctive relief. [3]The word "story" is defined in
Webster's New International Dictionary, second edition (unabridged) at page 2487, as"A set of
rooms on the same floor or level; a floor, or the habitable space between two floors ...A story
comprehends the distance from one floor to another."Commonly accepted as the ordinary
meaning, this definition of the word "story"has been adopted by courts in and out of this
jurisdiction. In Biber v. O'Brien, 138 Cal.App. 353[32 P.2d 4251, an Issue arose concerning the
height of a structure and what, in relation thereto, constituted a"story';the court said at page
360: "A story has been defined as the habitable space between two floors (Hunter v.
Narragansett Electric Lighting Co., 50 R.I. 196[146 A.624, 6251;Vallen v. Cullen, 238 Mass.
145 [130 N.E. 2161;and as a set of rooms on the same floor or level. (Lagler v. Bye, 42 Ind.App.
592 [85 N.E. 36]); ..." Similar is the definition of"story" in the California Health and Safety Code
used In relation to housing:"that portion of a building Included between the finished floor and
IV
PA2011-141 Planning Commission-10/20/2011
4b Additional Materials
the finished ceiling of any floor ..:' (§ 18510), and its reference throughout the State Housing Act
(Health &Saf. Code, div. 13, pt. 1).
[4] Nor is there anything ambiguous about the term "height." It Is simply used in Condition 2 to
describe the measure of the structure upward from the ground. Its common definition is found in
the State Housing Act: "The height of a building is the perpendicular distance from the actual
adjoining sidewalk or ground level to the lowest point of the finished ceiling of the top story of
the building."(Health & Saf. Code, § 15850.)
In the light of the restrictions and conditions contained in the declaration, the topography of the
tract and elevation of the lots, and the existing structures thereon, the general plan of the
grantor reflects its plain intent and desire to maintain a one story height for all structures In the
tract for the purpose of preserving the view of the individual lot owners at varied elevations. In
accord with this plan, the grantor originally constructed no building outside of the restrictions,
and today the structures, including garages and out buildings in the 174-lot tract, are all only
one story high.
Appellants' Illustrations of"the vagueness of the restrictions" [197 Cal.App. 2d 657] (A.O.B., p.
4)are concededly extreme, the obvious result of strained constructions of an ordinary, common
phrase, and we deem them to be unreasonable and of no validity in their argument.
[5]Appellants'claims that the one story height restriction does not apply to a garage, thus the
structure--a garage with a second story on top--is not prohibited; and that In any event, the
building may be considered an "out building incidental to residential use"to which the restriction
does not apply, are wholly without merit.The general plan expressed in the declaration and
reflected in the physical appearance of the tract and the existing structures, and the obvious
purpose of the height restriction, point to the only reasonable construction of Condition 2--that
no structure, be It a"detached single family dwelling,"a"private garage for not more than three
cars"or"out buildings incidental to residential use," shall be more than one story high; and it is
apparent that the grantor did not contemplate within the terms"private garage"and"out
buildings,"or Intend to include therein, a garage with a second story on top. Moreover, "garage"
in its ordinary usage does not normally encompass a second story;the term is commonly used
to mean a structure for the housing of a vehicle--in the Instant case "not more than three cars."
"Garage"as in Webster's New International Dictionary, second edition, (unabridged), is defined
as"1.A building for housing automotive vehicles." (P. 1033.)And it is so used in connection with
housing In the California Health and Safety Code, and defined therein as, "any space in any
building used for the storage of automobiles."(§ 18507.)Thus, a reasonable Interpretation of
the term "private garage"as used in Condition 2, Is a one story structure to be used exclusively
for the storing and housing of not more than three vehicles. For this type of building a second
story Is not necessary, contemplated or reasonable.
[6] Nor, to circumvent the plain intent of the grantor, can defendant's proposed structure be
construed as an "out building incidental to residential use." "Out building,"within the meaning of
a covenant of this nature which also specifically mentions other structures Including a"private
garage,"could not be reasonably construed to encompass either a single story garage or one
with a second story on top of it. Moreover,defendants' proposed two story building Is clearly not
what is meant by"incidental to residential use"as the phrase is used in Condition 2. It was
actually intended [197 Cal.App. 2d 658] basically as a garage and that defendants proposed to
add a story above it, depriving it of its"garage"classification, does not permit the transformation
of the structure into an "out building Incidental to residential use"for the purpose of avoiding the
application of the restriction. In any event, such a construction is of little aid to defendants,for
we have already held, in accordance with the common plan of the grantor, that"out buildings
V
PA2011-141 Planning Commission-10/20/2011
4b Additional Materials
incidental to residential use"are included in the structures subject to the one story height. It
would be Incongruous to restrict the dwelling and garage to one story, yet permit an Incidental
"out building"to exceed the prohibited height; nor was this the plan or intent of the grantor.
For the foregoing reasons the judgment is affirmed.
Wood, P. J., and Fourt,J., concurred.
ZABRUCKY v. McAdams, Cal: Court of Appeals, 2nd Appellate Dist.,
7th Div. 2008
Interpretation of the CC&Rs:
The court stated: "Reading the CC&Rs as a whole,the court concludes that the main
dwelling structure Is governed by Paragraph 1 and not Paragraph 11.The wording of
Paragraph 11 clearly addresses structures relating to fences, hedges and landscaping,
and not the main dwelling."Appellants contend the court misinterpreted Paragraph 11
and should have used the plain meaning of "structure" as a broad term.
"[W]e must independently interpret the provisions of the document. It Is a general rule
that restrictive covenants are construed strictly against the person seeking to enforce
them, and any doubt will be resolved In favor of the free use of land. But it Is also true
that the"'Intent of the parties and the object of the deed or restriction should govern,
giving the Instrument a just and fair interpretation."'The intention of the parties is to be
determined from the document as a whole, and if possible still give effect to every
part." (Citations omitted.)(White v. Dorfman(1981)116 Cal.App.3d 892,897; see also Ezer
v. Fuchsloch(1979)99 Cal.App.3d 849,861 ["'[P]articular words or clauses must be
subordinated to general Intent.'"].)
In the Instant case, in determining that "any structure"was limited to landscape-type
structures,the superior court found support for its interpretation In the rule of
construction of ejusdem generis as discussed in White v. Dorfman, supra, 116 Cai.App.
3d 892.
Appellants assert that Paragraph 11 absolutely prohibits, i.e., has a zero tolerance for,
anything that obstructs the view of another lot in any manner and that the court's
Interpretation defeats the Intent or main goal of the CC&Rs to protect views. In
appellants'opinion, If a residence Is destroyed or demolished, any replacement must be
built within the footprint of the original approved plan unless any extension or change
does not obstruct the view of another lot In any manner whatsoever.
Appellants assert this case is governed by Seligman v.Tucker(1970)6 Cal.App.3d 691. In
Seligman,the court was called upon to Interpret a recorded restriction for a subdivision,
which provided In pertinent part: "'No . . . structure shall be. . .erected . . . upon any lot
In such location or In such height as to unreasonably obstruct the view of any other
lot. . . ."" (Id., at p.693.) in concluding that the term "unreasonably obstruct" was not too
vague or uncertain to be enforced,the court reasoned: "It is clear from the surrounding
circumstances and the timing of the filing of the declaration of restrictions that the views
dealt with In the'view-protection' clause were those which the residences had upon their
completion, by reason of their orientation on the lots and their room and window
locations and of the open spaces left on other lots." (Id.,at pp. 697, 699.)
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However,other paragraphs of the Instant CC & Rs prohibit certain trades, activities and
uses of the lots. Thus, reading the CC&Rs as whole, it is evident that protecting views
was one of their purposes not their only or their main purpose.Accordingly,the question
Is how much protection was Intended.
In common with most coastline housing In Southern California,the prime thing the
Marquez Knolls development sold Its prospective homeowners was a beautiful ocean
view. In fact, like most such housing, much of the value of any property within the
development depends on the quality of the view. To significantly obstruct any
homeowner's view of the Pacific Ocean is to depreciate the economic worth of their
property-often by several hundred thousand dollars -as well as dramatically reduce
their enjoyment of the home they bought and live In. Thus, it is not surprising the rest of
the Zabrucky's neighbors,the MKPOA,filed an amicus brief seeking to enforce the
development's CC&Rs.These provisions, and especially the Paragraph 11 at issue in this
case,form their only bulwark against rampant expansions of existing residences that
would obstruct views and depreciate land values throughout the entire Marquez Knolls
neighborhood.
It seems highly unlikely those who framed Paragraph 11 intended to limit Its protections to
"fences, hedges and landscaping"and not to the erection of other kinds of"structures"that
might significantly destroy the views and value of homes in the Marquez Knolls development.
When the lots were first sold and houses designed and constructed, views were protected by an
architectural committee whose approval was required for the design and placement of all
structures constructed on the lots. But once the lots were built out and the architectural
committee disbanded, Paragraph 11 was the only remaining restriction against what otherwise
could be unlimited structural additions (at least single story ones) to some original existing
residences at the expense of the views enjoyed by other homeowners.
At the same time, while fairly confident about the probable intent behind Paragraph 11, the
language employed in this provision is not crystal clear on the question whether it prohibits the
type of construction respondents propose. Many years ago, in a different context,Justice
Johnson of this court pointed out the Legislature had"handed us a true conundrum"when an
ambiguous statute was open to two inconsistent but reasonable interpretations. (People v.
Weatherill (1989)215 Cal.App.3d 1569 , 1589.) in that instance, he found one of those
interpretations"marginally more persuasive"than the other and thus dissented. (Id., at p. 1580.)
In the case at bar, the drafters of Paragraph 11 appear to have handed this court a contractual
"true conundrum." (The fact, as explained below, that Division 5 appears to have gone both
ways when interpreting nearly identical view obstruction restrictions, which also happen to be
similar to the restriction before this court, in two cases decided a decade apart tends to support
this characterization.) In any event, even though the trial court's construction of Paragraph 11 is
not illogical or unsupportable, we are persuaded a contrary reading is marginally more logical
and supportable.
Thus, it would be more "just and fair"to adopt the interpretation of Paragraph 11 understood as
the proper rule by the vast majority of homeowners in Marquez Knolls. It is the interpretation
calculated to protect the views and property values of these residents.And it Is the one that
seems most consistent with the meaning the English language ascribes to the words used in
this paragraph.After all, the word"any"is defined to mean"of whatever kind"or"without
restriction." (Merriam Webster's Collegiate Dict. (10th ed. 1993) p. 53, col. 1.)And "structure"
means"[a]ny construction, production,or piece of work artificially built up or composed of parts
purposefully joined together(a building is a structure)." (Black's Law Dict. (8th ed. 2004)p.
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1464, col. 1.)To say that the addition of several rooms to an existing residence does not fit
under the term "any structure" is to say a building is not a structure and"any"means"of a
special type"rather than "of whatever kind"
There is no doubt it would have been preferable for the drafters of Paragraph 11 to have
located the prohibition against erection of "any structure"that obstructs the view of an
adjoining homeowner in its own paragraph or subparagraph. Then presumably there
would have been no room for a contrary interpretation of this expansive language. But at
the same time those drafters are entitled to expect the courts construing the contractual
language to give ordinary words their ordinary meaning-and certainly not an opposite
meaning.The term "any structure" If given Its ordinary meaning certainly covers the
erection of an addition containing several rooms,as is proposed here.
However, it Is not reasonable to interpret the CC&Rs as prohibiting any obstruction of
existing views as urged by appellants. We agree with the trial court's observation that it
would have been Impractical for the original drafters of the CC&Rs to have Intended that
no house be built which obstructed any other owner's view.Thus,we conclude It would
be in keeping with the Intent of the drafters of the CC&Rs to read Into Paragraph 11 a
provision that the view may not be unreasonably obstructed,thus the sentence would
read, "may at present or in the future unreasonably obstruct the view from any other
lot." (Change underlined.) In Seligman,the court noted it would determine "what is
reasonable or unreasonable In light of the matter and the circumstances
involved." (Seligman v.Tucker, supra,6 Cal.App.3d at p. 697.) Such a provision would
accord with what the architectural committee actually did when It approved of the design
and location of buildings as reflected by the court's view of the development which
revealed that respondents'existing home partially blocked appellants'view and various
other homes in the tract also partially blocked other owners'views.
III. Two story structure
We need not address appellants'contention the court erred in finding respondents'addition was
not a two-story structure and should have granted their motion for reconsideration or new trial
because there was no substantial evidence respondents'addition was one story.
DISPOSITION
The judgment is reversed.Appellants to recover costs on appeal.
CERTIFIED FOR PUBLICATION
Iconcur:
JOHNSON, J.
Vlll
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Item No . 4c
Appeal of Lot Merger
PA2011-141
111immm
Please be advised, that in the event that Mr. Guida gains permission from the
City Planning Commission and/or City Counsel to merge his properties and build
as he now intends, this case will end up in court,where besides strict
enforcement of the covenant as to height, we will seek to extinguish the access
to the rear of his property that he now enjoys. I think a close reading of the
easement, contained in the covenant, will show that Mr. Guida is not a direct
beneficiary, so closing it off to him will be a low hurdle to clear.
1. The easement is for the benefit of the city and Mr. Guida is not a direct
beneficiary. It does not impede access to his property. It was specifically for the
benefit of his assignors.
2. He can't claim adverse possession because the Campbell & Silva
families know he is using the driveway. He is using it with their permission. Mr.
Guida also knows that he has their permission.
3. This is a unilateral accommodation which can be withdrawn by the
Campbell's and Silva's at any time.
4. At best, Mr. Guida has an equitable interest which can only be enforced
if he has clean hands.
5. By breaking the deed covenant as to height restriction Mr. Guida no
longer has clean hands and the court should extinguish his access to the 96 foot
road that runs through the property of the Campbell's and Silva's.
Finally, reading appellate cases involving similar issues, the courts have been
generous awarding legal fees to those resisting the violation of a covenant. To
continue with your project could result in your having to pay lawyers for both
sides without being able to do the renovation work you are now seeking.
Enclosed please find the citation which stands for the above proposition.
(Citation]" aECF/P
Russell v. Palos Verdes Properties[218 Cal.App. 2d 754]
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Russell v. Palos Verdes properties [218 Cal. App. 2d 754]
[Civ. No. 26530. Second Dist., Div. One. July 31, 1963.1
G. M. RUSSELL.et al., Plaintiffs and Appellants, v. PALOS VERDES PROPERTIES et al.,
Defendants and Respondents.
COUNSEL
Roy B. Woolsey, Aidlin, Martin & Mamakos,Arthur L. Martin and Richard B. Cutler for Plaintiffs and
Appellants.
Harold H. Streight, Mason, Kinley&Wallace, William Kinley and Owen F. Goodman for Defendants
and Respondents.
OPINION
LILLIE, J.
Plaintiffs Russell sued Palos Verdes Properties (hereinafter referred to as "Properties") and Rolling
Hills Community Association of Rancho Palos Verdes (referred to herein as "Association") for
declaratory relief and to quiet title to Parcel 1 (approximately 8.6 acres of unimproved land), Parcels
2 and 3 (easements for"road purposes") and Parcel 4 (.019 acre, not here involved), seeking relief
from certain restrictions contained in Agreement and Declaration No. 150-W. Defendants cross-
complained to enjoin plaintiffs from constructing any building on the land without first securing the
approval of Association, and from granting to others the unrestricted right to use Parcels 2 and 3,
easements for road purposes, except upon the sale of Parcel 1 as a unit. Judgment in favor of
defendants and cross-complainants decreed that plaintiffs are the owners of Parcels 1, 2, 3 and 4,
subject, as to Parcel 1 only, to easements and rights of way for road and other purposes over certain
portions thereof and across and under certain other described lands, with the right of Properties to
grant to others, and subject further, as to Parcels 1, 2 and 3, to all "restrictions, [218 Cal. App. 2d
758] conditions, covenants, reservations, liens and charges set forth in Agreement and Declaration
No. 150-W';that Agreement and Declaration No. 150-W is a valid and existing agreement
enforceable against plaintiffs; and that the interests, rights and easements reserved by Palos Verdes
Corporation, as set forth in Agreement and Declaration No. 150-W and in the deed to the Douglases,
are now held by Properties. It also enjoins plaintiffs, for the term prescribed in Agreement and
Declaration No. 150-W, from constructing any building on Parcel 1 without approval of Association;
and permanently enjoins them as owners of Parcel 1, except with prior consent of Association, from
conveying the right to others or permitting others any right to use the road easements (Parcels 2 and
3) or any portion thereof except for use normally associated with the use of Parcel 1 as a unit for one
single family residence. Plaintiffs appeal from the judgment.
In 1926 Palos Verdes Corporation (hereinafter referred to as "Corporation") acquired certain lands
on the Palos Verdes Peninsula. Rolling Hills Community Association, a nonprofit corporation, is a
homeowners' protective association the membership of which consists of all persons owning land in
the area subject to an Agreement and Declaration to which it is a party. This area is known as the
"Community Area"which has the same boundaries as the City of Rolling Hills, over which
Association has jurisdiction and control. The Association has the right, authority and duty to engage
in various activities to develop and improve the Area, maintain all roads therein and a system of
gates and guards at all entrances to prevent entry of the public, and provide members with police
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protection; and to actively enforce the provisions of all Agreements and Declarations to which it is a
party.
On May 14, 1936,Association and Palos Verdes Corporation, while the latter was still owner of all
lands therein described, executed and recorded Declaration of Establishment of Restrictions No.
150 (Ex. D) containing, among other things, a general plan of restrictions; it designated and created
the initial Community Area. Thereafter, the Corporation began selling various parcels of its holdings,
but before conveying the same and for the future use of the land, imposed on each the above
restrictions in the form of separate Agreements and Declarations between it and Association.Thus,
Up to June 18, 1945, the date of the execution o1 Agreement and Declaration No. 150-W, 22
additional Agreements and Declarations (Nos. 150-A through V (Exs. [218 Cal.App. 2d 759] E
through AA)) were entered into between Association and Corporation, and recorded. Particularly with
reference to articles therein entitled "General Basic Restrictions" (art. 1), "Rolling Hills Community
Association"(ail. II), "Zoning" (art. III), and "Duration, Enforcement, Amendment' (art. IV), all 2.2
instruments (except 150-A) contain the same provisions, restrictions, covenants and conditions--
identical with those in Agreement and Declaration No. 150-W. Each instrument describes a portion
of the present Community Area under the jurisdiction of Association the owners of which are
Association members; included in the lands were all parcels lying along the northerly side of Crest
Road between Parcel 1 and property affected by Declaration of Establishment of Restrictions No.
150. The 22 separate Agreements and Declarations and Declaration of Establishment of Restrictions
No. 150 were designed to establish a general plan for the development, improvement and protection
of the Area under which it has become "a rigidly-restricted, high-class, country-style, residential
community." (Finding No. XXIII.)Association, in executing these instruments did so as the
representative, and for the benefit,of its members in the use of their properties in the Area.The
Association owns none of the land nor has it ever owned any of the property under its jurisdiction.
On June 18, 1945, Corporation,then owner of Parcels 1, 2 and 3, and Association executed
Agreement and Declaration No. 150-W (Ex. BB), the provisions, restrictions, covenants and terms of
which are substantially the same as those set forth in Agreements and Declarations Nos. 150-B
through V.After the preamble in part referring to Association's power under certain provisions of
Declaration of Establishment of Restrictions No. 150 to enforce the restrictions, to the covenants and
reservations imposed upon the property described therein, and to the restrictions imposed upon
other land subject to similar Agreements and Declarations to which it is a party, appears the
following agreement: "That it is agreed by and between Palos Verdes Corporation and Rolling Hills
Community Association of Rancho Palos Verdes that the said property above described (Parcels 1,
2 and 3) shall be field, sold and conveyed subject to the restrictions, conditions, covenants,
reservations, liens and charges hereinafter set forth, and that after recordation of this Declaration
and Agreement in the office of the County Recorder said Association shall in respect to said property
have all the [218 Cal.App. 2d 760] rights and powers herein set forth and also the right and duty to
grant to the owners of said property, their grantees and assigns, memberships in the Association, all
as herein provided, and said Association and its Board of Directors do hereby approve this
Declaration of Restrictions and agree to be bound thereby." Corporation, having recited it was about
to convey Parcel 1 in portions,thereafter declared that it has"established the General Plan for the
protection, maintenance, improvement and development of said property, and has fixed and does
hereby fix the general basic and local restrictions, conditions, covenants, reservations, liens and
charges upon and subject to which all lots, parcels and portions of said property shall be held,
leased or sold and/or conveyed by it as such owner, each and all of which is and are for the benefit
of said property and of each owner of land therein and shall inure to and pass with said property and
of each and every parcel of land therein and shall apply and bind the respective successors in
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interest of the present owner thereof, ..."Article I of Agreement and Declaration No. 150-W sets forth
"General Basic Restrictions," article III, 'Zoning" and Article V, "Local Restrictions'; article 11 grants
Association various rights and powers, and among others, imposes upon it the obligation of
enforcing the liens, charges, restrictions, conditions and covenants therein set forth for the benefit of
owners of property at any time within the jurisdiction of the Association, and to commence and
maintain actions to restrain and enjoin the breach of any restrictions, conditions of covenant set forth
in any declaration affecting said property. (Art. II § 2[m1.)
AfterAgreoment and Declaration No. 150-W was executed and recorded, Corporation, in November
1945, sold Parcel 1 as a unit, together with Parcels 2 and 3, easements for"road purposes," to R. R.
and B. L. Douglas. The grant deed made the conveyance "subject to: 1. (Taxes) 2. ... each and
every provision, condition, restriction, reservation, lien, charge, easement and covenant set forth in
that certain Agreement and Declaration No. 150-W executed by Palos Verdes Corporation, tiled
June 26, 1945, as Document No. 2443, all of which provisions, conditions, restrictions, reservations,
liens, charges, easements and covenants are herein incorporated in this deed to the same effect as
if set forth in full herein. 3. The above described premises shall constitute a single building site for
one single family dwelling."
Later Duke and Memory became owners of Parcels 1, 2 and [218 Cal.App. 2d 76113, and 4 (not
included in Agreement and Declaration); in November 1952, they conveyed to Corporation an
easement over Caballeros Road, a portion of Parcel 1.
Thereafter C. M. Douglas became the owner. Plaintiff Russell, acting as her attorney in fact and
under article I, section 14,Agreement and Declaration No. 150-W, filed on tier behalf with
Association plot plan (Ex. B) and application for permission to subdivide Parcel 1; it was denied.
(The lower court confirmed that the plan submitted "was not reasonable or appropriate with respect
to the topography of the property and with respect to the division of other properties within the
vicinity of said Parcels 1 and 4" (Finding No. XI.)) During the course of these proceedings, and on
July 17, 1959, plaintiffs, Russell and his wife, became owners of the property. The grant deed
provided that it passed to them free and clear of encumbrances"except conditions, restrictions,
reservations, covenants, easements, rights and rights of way of record." Plaintiffs Russell then
submitted to Association for its approval plans and specifications for a residence to be erected on
Parcel 1; approval was denied. Plaintiffs nevertheless commenced construction; they were
preliminarily, now permanently, enjoined.
In their opening brief, acknowledging only the unilateral declaration of restrictions by Palos Verdes
Corporation and erroneously designating Agreement and Declaration No. 150-W as "Declaration No.
150-W," and ignoring the executed bilateral agreement between Corporation and Association
contained therein, appellants argue that inasmuch as the Corporation did not divide Parcel 1 no
mutually enforceable restrictions were created thereon (Werner v. Graham, 181 Cal. 174 [183 P.
945]), and since respondents own no land in the Area they cannot enforce the restrictions. (Kent V.
Koch, 166 Cal. App. 2d 579 [333 P.2d 4111.)
There is no claim that mutually enforceable restrictions were ever created, nor has there been an
attempt to enforce any restrictions as covenants running with the land or any rights arising out of the
unilateral declaration of restrictions; and it was not on this basis that the lower court found the
restrictions created by Agreement and Declaration No. 150-W to be enforceable against plaintiffs.
Yet, it was not until their reply brief that appellants made any effort to rneet the real issue--whether
the restrictions arising out of Agreement and Declaration No. 150-W entered into by Association [218
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Cal. App. 2d 7621 with Corporation, the then owner of land adjacent to land subject to the jurisdiction
of Association by virtue of other like Agreements and Declarations, are enforceable in equity against
plaintiffs, Corporation's remote successors in interest who acquired title with knowledge, actual and
constructive, of the existence of Agreement and Declaration 150-W and Association's interest in its
enforcement.
In addition to the unilateral declaration of restrictions which failed to create mutually enforceable
restrictions,Agreement and Declaration No, 150- W contains a complete bilateral agreement
between Association and Corporation whereby, in exchange for the benefits to be received from
Association by way of maintenance, improvement and development of the Area and its active
enforcement of the same restrictions against all other owners in the Area arising out of Agreements
and Declarations to which it is a party, Corporation agreed to hold, sell and convey Parcels 1, 2 and
3 subject to the restrictions, conditions, covenants, reservations, liens and charges set forth in
subsequent articles of the instrument, and that a continuing lien shall be imposed on said property.
The rights Association seeks to enforce are derived from this bilateral agreement. Appellants would
have us declare the entire instrument void because the Corporation did not divide Parcel 1, but
conveyed it as a unit. While division of Parcel 1 by the Corporation was a condition precedent to the
effectiveness of its unilateral declaration of restrictions to create valid mutually enforceable
restrictions or covenants running with the land, it had no such effect on the validity or enforceability
of the executed bilateral agreement. Immediately upon its execution, even before the original
conveyance of Parcel 1, the bilateral agreement became a binding contract enforceable by either
Association or Corporation (art. IV, § 10); and nowhere in the record have plaintiffs claimed
otherwise. It has since remained valid and enforceable. While in the preamble the Corporation
contemplated a division of Parcel 1, nothing in Agreement and Declaration No. 150-W required it to
subdivide or prevented it from selling Parcel 1 as a unit subject to the restrictions contained therein.
Covenants, if they are to run with the land, must conform to certain legal requirements; none were
herein created. [1] However, if because of absence of essential requirements a covenant does not
run with the land, equity will, in a proper case, enforce the obligation, even though of a personal [218
Cal.App. 2d 7631 nature, at the suit of the original covenantee against the grantees of the
covenantor who acquired the land with notice of the covenant. This doctrine was first applied over a
hundred years ago in Tulk v. Moxhay (1848) 41 Eng. Rep. 1143, and has been consistently followed
in California. (Los Angeles Terminal Land Co. v. Muir, 136 Cal. 36 [68 P. 3081; Hunt v. Jones, 149
Cal. 297 [86 P. 6861; McBride v. Freeman, 191 Cal. 152 [215 P. 6781; Martin v. Holm, 197 Cal. 733
[242 P. 718]; Wayt v. Patee, 205 Cal. 46 [269 P. 660]; Richardson v. Callahan, 213 Cal. 683 [3 P.2d
9271; Thew v. Thew, 35 Cal. App. 2d 691 [96 P.2d 8261; Marra v. Aetna Constr. Co., 15 Cal. 2d 375
[101 P.2d 490].) "The marked tendency of our decisions seems to be to disregard the question of
whether the covenant does or does not run with the land and to place the conclusion upon the broad
ground that the assignee took with knowledge of the covenant and it was of such a nature that when
the intention of the parties coupled with the result of a failure to enforce it was considered, equity
could not in conscience withhold relief." (Richardson v. Callahan, 213 Cal. 683, 686 [3 P.2d 927].)
[2] Thus, personal covenants are enforceable (Thew v. Thew, 35 Cal.App. 2d 691 [96 P.2d 8261;
Wayt v. Patee, 205 Cal. 46 [269 P. 6601; Barbieri v. Ongaro, 208 Cal. App. 2d 753 [25 Cal.Rptr. 471];
Guarantee Realty Co. v. Recreation Gun Club, 12 Cal.App. 383 [107 P. 6251; Marra v.Aetna Constr.
Co., 15 Cal. 2d 375 [101 P.2d 490]), and aside from the requirement that their enforcement must be
equitable, the successor of the covenantor against whom enforcernent is sought must have had
notice, actual or constructive, of the covenant at the time of the conveyance to him. (Martin v. Holm,
197 Cal. 733 [242 R 7181; Wayt v. Patee, 205 Cal. 46 [269 P. 6601; Barbieri v. Ongaro,208 Cal.App.
IV
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2d 753 [25 Cal.Rptr. 4711; Thew v. Thew, 35 Cal.App. 2d 691 [96 P.2d 826].) But, relying mainly on
Werner v. Graham, 181 Cal. 174 [183 P. 9451, and Kent v. Koch, 166 Cal.App. 2d 579 [333 P.2d
4111, appellants argue that in addition, the deed containing the restrictions or other instruments of
record must show a common plan and that there must be, by map or other method, a designation of
the extent of the land affected by the restrictions.
In Werner v. Graham, 181 Cal. 174 [183 P. 9451, and other cases falling within its classification, the
parties derived title from a common grantor who was not a party to the action; in Kent v. Koch, 166
Cal.App. 2d 579 [333 P.2d 411], plaintiff [218 Cal.App. 2d 7641 was a subdivider who had divested
himself of his interest in the property to be benefited by the restrictions and thus could not enforce
them. In the instant case, the Association is the original covenantee; it does not own and has never
owned any of Parcel 1 or any land in the Area. It seeks equitable enforcement of a promise
restricting the use of Parcel 1 made to it by the then owner, plaintiffs' predecessor, of which promise
plaintiffs had both actual and constructive notice when they took title. In Thew v. Thew, 35 Cal. App.
2d 691 [96 P.2d 826], the first wife, the original covenantee, sued on a purely personal covenant
contained in a property settlement agreement by which the husband took certain land and agreed to
pay to her a percentage of profits from the sale of minerals extracted from the property. Relying
heavily on Richardson v. Callahan, 213 Cal. 683 [3 P.2d 927], the court enforced it against the
husband's second wife who acquired the title to the property with full knowledge of the covenant.
Directing the result of this case, Hunt v. Jones, 149 Cal. 297,301 [86 P. 686], Wayt v. Patee,205
Cal. 46, 50 [269 P. 660], and Richardson v. Callahan, 213 Cal. 683, 687 [3 P.2d 9271, is the doctrine
stated in Whitney v. Union Ry. Co., 77 Mass. (11 Gray) 359 [71 Am.Dec. 715]: "The precise form of
the nature of the covenant or agreement is quite immaterial. It is not essential that it should run with
the land.A personal covenant or agreement will be field valid and binding in equity on a purchaser
taking the estate with notice. It is not binding on him merely because he stands as an assignee of
the party who makes the agreement, but because he has taken the estate with notice of a valid
agreement concerning it, which he cannot equitably refuse to perform."
Actually, the Association, the original covenantee, became the beneficiary for its members,
landowners in the area, of the promise made to it by the Corporation. [31 "To the extent to which the
promise is enforceable in equity it creates in the beneficiary thereof an equitable interest in the land
of the promisor to which the successors of the promisor are subject as they are to other equitable
interest." (Rest., Property, ch. 45; see also § 539, topic B.) [41 Acquiring title with actual or
constructive notice of the covenant, the grantees of the promisor"will take the premises bound by
the covenant, and will be compelled in equity either to specifically execute it,or will be restrained
from violating it, at the suit of the original covenantee or of any other person [218 Cal.App. 2d 7651
who has a sufficient interest, ... in such performance." (4 Pomeroy, Equity Jurisprudence (5th ed.) §
1295, p. 846.)
[5aj One cannot read Agreement and Declaration No. 150-W and its reference therein to certain
provisions of Declaration of Establishment of Restrictions No. 150, other properties in the Area, the
restrictions thereon (contained in 22 Agreements and Declarations), and the obligation of
Association to enforce them, without acknowledging that by the consistency of the restrictions
contained therein there was created a common plan showing a general scheme for the
development, improvement and protection of the Community Area, of which Parcel 1, which adjoined
other land in the Area, became a part upon execution of Agreement and Declaration No. 150-W, for
the mutual benefit of the various parcels of land in the Area adjoining Parcel 1 held subject to the
same restrictions. The owners of these parcels are all members of the Association and owned the
same at the time of the original conveyance to the Douglases and, like plaintiffs, were either the
V
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rernote or original grantees of the Corporation. Each bought his property and improved it in reliance
upon the creation and enforcement of the same kind of restrictions on Parcel 1 as on his own; and in
accordance with its promise to the Association, the Corporation conveyed Parcels 1, 2 and 3 to the
Douglases "subject to"the provisions of Agreement and Declaration No. 150-W and the restriction
that Parcel 1 shall constitute a single building site for one single family dwelling. Under Agreement
and Declaration No. 150-W Association has the right and the duty to protect the investments of its
members in the improvement of their properties by creating and enforcing restrictions on Parcel 1
consistent with those on the properties of its members. Thus, even though Association is not now,
and has never been an owner of property in the Area, as the original covenantee it has sufficient
material interest in the subject matter of its agreement with Corporation to enable it to secure
equitable enforcement thereof (Payette Lake Protective Assn. v. Lake Reservoir Co. (1948) 68 Idaho
111 [189 P.2d 1009]).
[6] Inasmuch as Declaration of Establishment of Restrictions No. 150 was expressly referred to in
Agreement and Declaration No. 150-W, we perceive no error in its admission in evidence (Ex. D); or
in the receipt of the other 22 agreements (Exs. E through AA) to show the nature of the Association's
relations with its members and its purpose in entering [218 Cal.App. 2d 7661 into the covenant.
(Townsend v. Allen, 114 Cal. App. 2d 291 [250 P.2d 292].)
[5b] We find no reason for not enforcing the personal covenant involved herein at the suit of the
original covenantee even though it is not a subdivider, original grantor, grantee, or subsequent
grantee of a subdivider or original grantor, as in the majority of cases applying the doctrine. [7] It
would be inequitable to permit plaintiffs to breach the covenant against the original covenantee.
Without question plaintiffs took Parcels 1, 2 and 3 with constructive notice of the provisions of
Agreement and Declaration No. 150-W; the deed not only put them on notice of the recorded
instrument but by express proviso incorporated therein all of its provisions, restrictions and
covenants. But of greater import is the actual knowledge plaintiffs had of Agreement and Declaration
No. 150-W, Declaration of Establishment of Restrictions No. 150, the 22 other instruments and the
plan for the development, improvement and maintenance of the Rolling Hills Community, and
Association's interest in enforcing them. Before he ever took title, plaintiff Russell attempted, under
the instrument on behalf of the then owner, to obtain Association's approval to subdivide Parcel. 1.
We are not impressed with appellants' argument that the enforcement of the restrictions would be
inequitable, or that they are unreasonable. The restrictions imposed on each lot owner in the Area
are the same; by their uniformity they were designed to and did establish a general plan for the
development and improvement of the Area under which it has become a high- class, country-style,
residential cornmunity. When each owner in the Area bought his land and invested in a home, he
relied upon the creation and enforcement of the same restrictions on Parcel 1. On the other hand,
plaintiffs Russell, familiar with the restrictions, before they took title consulted a lawyer relative to
their enforceability and, upon his advice that they were invalid, bought the property and went into the
Area with the admitted intention of subdividing Parcel 1 without regard for the restrictions, the other
property owners, or the Area. The lower court specifically found the restrictions to be reasonable;
there has been no change of circumstances or conditions of property adjoining or in the vicinity of ...
Parcels 1 and 4 ... which would render(their) enforcement, ... arbitrary, discriminatory, inequitable,
oppressive, burdensome [218 Cal. App. 2d 7671 or unreasonable ..." (Finding No. XVIII). Moreover, it
should be noted that while Association withheld approval of the proposed subdivision of parcel 1
according to the plot plan submitted on behalf of C. M. Douglas as not reasonable or appropriate
with respect to the topography of the property or the division or other properties within the vicinity of
Parcels 1 and 4, Parcel 1 is susceptible of subdivision under"a reasonable plan consistent with the
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PA2011-141 Planning Commission-10/20/2011
4c Additional Materials
development and division of adjoining properties," and the lower court so found (Finding No. XI). The
situation here is not one in which plaintiffs will never be able to subdivide Parcel 1. Presented a
proper and reasonable plan consistent with the Area, the Association no doubt will, as it has done
with other owners, grant plaintiffs permission to subdivide. But no such plan has yet been submitted
or proposed by plaintiffs; instead, they seek to have all restrictions declared invalid throwing the
property open to unlimited division for any and all purposes without regard to the development and
division of adjoining land.
Inasmuch as we deem Agreement and Declaration No. 150-W to be a valid and enforceable
agreement and its provisions to be expressly incorporated in the original deed and the deed to
plaintiffs, we dismiss appellants' argument that the "subject to" clause in the deeds is ineffective
because such reference thereto cannot make an invalid restriction enforceable. While it is true that
reference to, and incorporation of the provisions of,Agreement and Declaration No. 150-W in the
"subject to"clause cannot create valid covenants running with the land when none before existed, it
(foes operate to bind plaintiffs with the valid restrictive covenants arising out of the bilateral
agreement between Corporation and Association and existing at the time Corporation conveyed the
land to the Douglases.
Without substance is appellants' position that Agreement and Declaration No. 150-W neither
prohibits a division of Parcel 1 nor requires approval of Association therefor. The court below did not
directly enjoin plaintiffs from dividing Parcel 1. They were permanently enjoined, except with prior
consent of the Association, from "conveying the right to others or permitting to others any right to use
the road easements, heretofore described as Parcels 2 and 3 or any portion thereof excepting for
use normally associated with the use of said Parcel 1 as a unit for use of one, single family
residence." (Judgment, par. 7.) This was [218 Cal.App. 2d 768] based, not on any prohibition in
Agreement and Declaration No. 150-W, but on the theory that plaintiffs have no unilateral right
against Association, by their unlimited use of Parcels 2 and 3 (road easements) in connection with
the use of Parcel 1, to increase the burden of Association to maintain and repair the private road
system in the Area. Parcels 2 and 3 are nonexclusive easements for"road purposes" over
Portuguese Bend and Crest Roads from the Main Gate to Parcel 1;they were intended to be, and
are, according to the conveyances, appurtenant to Parcel 1. In the original deed Corporation limited
the use of Parcel 1 to "a single building site for one single family dwelling'; by doing so it defined and
limited the burden on Parcels 2 and 3 to that which would be placed thereon by the use of Parcel 1
as a single family dwelling site. Our courts do not look with favor on increases in the burden upon
the servient tenement (Whalen y. Ruiz, 40 Cal. 2d 294 (253 R2d 4571; Wall v. Rudolph, 198 Cal.
App. 2d 684 [18 Cal.Rptr. 123]; §806, Civ. Code; North Fork Water Co. v. Edwards, 121 Cal. 662 [54
P. 691; Crimmins v. Gould, 149 Cal.App. 2d 383[308 P.2d 786]); and if plaintiffs are allowed to
subdivide Parcel 1 such increase is inevitable. Association's 1950 written undertaking with
Corporation (Ex. EE)to construct, maintain and repair all roads in the Area, including Parcels 2 and
3 (with funds derived from charges and assessments levied against all owners of property subject to
the jurisdiction of Association [see art. 111, §2(b)]) was made in the light of the then existing burdens
on the roads and the increased burdens which will normally result from annexations to the Area.
Association neither agreed upon nor contemplated the increased burden on its duty to repair and
maintain the surface of roads over Parcels 2 and 3, which will necessarily arise out of their unlimited
use if Parcel 1 is freed from the restrictions and divided into unlimited building sites resulting in a
greater volume and a different kind of vehicular traffic. That this was the basis of the restraint
imposed on plaintiffs is borne out by Finding No. XXIX, and the permanent nature of the injunction
(Judgment, par. 7) not fimited, as in the other restraint, to the term of Agreement and Declaration No,
150-W (par. 6).
VII
PA2011-141 Planning Commission-10/20/2011
4c Additional Materials
However, the instrument clearly does prohibit division of Parcel 1 without the approval of
Association.Article 1, section 14, provides: "No part of said property shall be subdivided ... unless
and until ... approved in writing by (218 Cal. App. 2d 769J ... Association .... The approval, however,
of the Association shall not be necessary as to any part of said property, the record ownership of
which is vested in Palos Verdes Corporation."Appellants' claim that under article IV, section 8,
"Assignment of Powers," they succeeded to the original right of Corporation to divide Parcel 1
without approval of Association, is without merit. The deed contains neither a description nor an
assignment of this or any other special right of Corporation; further, the right to subdivide Parcel 1
without the approval of Association was personal to the Corporation and not intended to pass to its
grantee, for, under Agreement and Declaration No. 150-W, once Corporation conveyed the land,
whether in parcels or as a unit, "subject to"the instrument, "record ownership" no longer vested in it
(art. I, § 14) and the right to divide Parcel 1 without approval of Association ceased.
Relative to Palos Verdes Properties, it succeeded to all rights and interests of the Corporation in
1954. The interests Properties herein seeks to protect consist of certain valuable road easements
and reversionary rights reserved to its predecessor in Agreement and Declaration No. 150-W and
the original conveyance. The lower court found that plaintiffs held Parcels 2 and 3, easements for
"road purposes,"subject to the instrument, and that the burden they might place thereon is limited to
a use consistent with that normally associated with one single family dwelling.Appellants claim that,
as owners of Parcels 2 and 3, they are entitled to their unrestricted use.
While the owner of Parcels 1, 2 and 3, Corporation, in Agreement and Declaration No. 150-W,
reserved to itself various easements and rights of way over and under certain described strips and
parcels of land (art. V, §2[a]1, 2) and over certain portions of Parcel 1 (art. V, §2[a]3), for purposes of
roads, parkways, public utilities, etcetera (art. V, § 2[b]). In connection with, and following the
reservation of these easements and rights of way appears the following restriction: "The above
described premises (Parcel 1) shall constitute a single building site for one single family
dwelling." (Art. V, §2[a]4.) In 1952 an easement over Caballeros Road, a portion of Parcel 1, was
conveyed to Corporation. Also reserved to the Corporation are certain reversionary rights under
which the breach of any restriction, condition or covenant contained in Agreement and Declaration
No. 150-W shall cause the land upon which the breach occurs to [218 Cal. App. 2d 7701 revert to it,
or its successors, and the Corporation shall have the right of immediate reentry in the event of such
breach. (Art. IV, § 4.)
The nonexclusive road easements above described, and owned by Properties, are over the major
private roads in the Community Area--Portuguese Bend and Crest Roads. In addition to serving
Parcel 1 from the Main Gate over Portuguese Bend and Crest Roads, they serve several parcels of
land owned in fee by Properties consisting of substantial acreage--"Flying Triangle" (39.5 acres) and
"San Pedro Hills" (in excess of 100 acres)--located on the southerly and easterly boundaries and
adjoining, but outside of, the Community Area;these parcels may be brought into the Area under a
1950 agreement between Association and Corporation. Properties also owns two parcels in the Area
it uses for business and administrative offices;they too are served by the easements. It appears that
these nonexclusive road easements held by Properties are valuable;that they are the only practical
means of access to "Flying Triangle" and necessary to its development and use, and constitute an
essential access road of primary importance to"San Pedro Hills." (Finding No. XXX.)
t8] By the original deed Corporation conveyed Parcels 1, 2 and 3 "subject to"the provisions of
Agreement and Declaration No. 150-W, incorporated therein by reference, and the restriction that
Vlll
PA2011-141 Planning Commission-10/20/2011
4c Additional Materials
"The above described premises shall constitute a single building site for one single family dwelling";
Parcels 2 and 3 were expressly conveyed therein as easements for "road purposes."They consist of
nonexclusive road easements running from the Main Gate over Portuguese Bend and Crest Roads
to Parcel 1; they are coextensive with, and pass over more than a mile of, Properties' underlying
road easements hereinabove described.
Agreement and Declaration No. 150-W, the provisions of which were expressly incorporated in the
deeds, twice specifically set up the single dwelling building restriction. Article III, "Basic Zone
Restrictions," relative to character of use, provides: "No ... structures ... shall be erected ... on any ...
parcel, ... which shall be used, designed or intended to be used for any other purpose other than that
of a single family dwelling ..." (§ 2); article V, "Local Restriction," and "Easements and Rights of
Way," provides: "The above described premises shall constitute a single building site for one single
family dwelling." (§ 2[41.)Accordingly the original [218 Cal.App. 2d 7711 deed and that conveying
Parcels 1, 2 and 3 to plaintiffs were made "subject to," not only the provisions of Agreement and
Declaration No. 150-W but, specifically, the restriction that the premises"shall constitute a single
building site for one single family dwelling." Thus, it is apparent that Parcels 2 and 3 were intended
to be, and are appurtenant to Parcel 1, and that their use is limited to that consistent with the use of
Parcel 1 as a site for one single family dwelling; and the lower court so found. (Finding No. XXVIII.)
Plaintiffs took title with personal knowledge of the restrictions and limitations on the use of Parcels 1,
2 and 3. On this appeal they speak of dividing Parcel 1 into four lots for construction of a single
family dwelling on each, but this is misleading for herein they really seek removal of all restrictions
which would throw open the 8.6 acres of Parcel 1 to subdivision into an unlimited number of sites not
only for private homes but for other types of buildings, the practical result of which would be a
change in the use of Parcels 2 and 3 from the very limited one appurtenant to Parcel 1 as a single
building site, to an unlimited use which would inevitably and necessarily include an increased burden
of travel thereon--in the number and kind of vehicles. This increased burden would obviously be
considerably in excess of that originally contemplated over Portuguese Bend and Crest Roads
underlying which Properties have road easements which serve the several large parcels owned by
it, and over the above rights originally granted by Corporation to the Douglases. It cannot be denied
that by Agreement and Declaration No. 150-W and its original conveyance Corporation intended
Parcels 2 and 3 to be appurtenant to Parcel 1, as the same is used as a single building site, in order
to protect its retained interests in the underlying road easements;thus, if Parcel 1 is used for
unrestricted purposes, its unlimited use will result not only in an increased burden on Portuguese
Bend and Crest Roads but an increased burden of maintenance thereon. (Finding No. XXX.)
Whether plaintiffs'proposed use of the road easements is unreasonable is a question of fact
(Pasadena v. California-Michigan etc. Co., 17 Cal. 2d 576 [110 P.2d 983, 133 A.L.R. 11861;the
record herein supports the lower court's finding that it is.
[91 "The extent of a servitude is determined by the terms of the grant, or the nature of the enjoyment
by which it was acquired." (Civ. Code, § 806.) Referring to this section the Supreme Court in Whalen
v. Ruiz, 40 Cal. 2d 294 [253 (218 Cal. App. 2d 7721 P.2d 457] said: ".., it is well settled that 'both
parties have the right to insist that so long as the easement is enjoyed it shall remain substantially
the same as it was at the time the right accrued, entirely regardless of the question as to the relative
benefit and damage that would ensue to the parties by reason of a change in the mode and manner
of its enjoyment.' (Allen v. San Jose Land & Water Co., 92 Cal. 138, 141 [28 P. 215, 15 L.R.A. 931;
see Hannah v. Pogue, 23 Cal. 2d 849, 854 [147 P.2d 572].)" (P. 302:) [101 And where easements are
granted for the specific use of an undivided dominant tenement the grantee, while he may partition
the latter thereby granting to others rights in the use of the easements, may not.do so if it will result
IX
PA2011-141 Planning Commission-10/20/2011
4c Additional Materials
in an increase in the burden on the easements. (Civ. Code, § 807.) " 'A principle which underlies the
use of all easements is that the owner of an easement cannot materially increase the burden of it
upon the servient estate or impose thereon a new and additional burden.' (17A Am.Jur. § 115, p.
723.)"
(Wall v. Rudolph, 198 Cal, App. 2d 684, 686 [18 Cal.Rptr. 123]; Bariholontew v. Staheli, 86 Cal. App.
2d 844 [195 P.2d 824].) In Wall v. Rudolph, supra, the court held that the grants were made for road
purposes in broad terms which created a general right of way capable of use in connection with the
dominant tenement for all reasonable purposes limited by the requirement that the use be
reasonably necessary and consistent with the purposes for which the easement was granted which
include "normal future development within the scope of the basic propose (see C. F. Lott Land Co. v.
Hogan, 177 Cal. 169, 173 [169 P. 10351; Fristoe v. Drapeau, 35 Cal. 2d 5, 9 [215 R2d 729]; 17A
Am.Jur. § 115, p. 723), but not an abnormal development, one which actually increases the burden
upon the servient tenement. (Rest., Law of Property, § 484, illus. 3, p. 302.1.)" (P. 6.92.) The court
said further with respect to uses in connection with the dominant tenement (pp. 696, 697): "3 Powell
on Real Property, section 405, page 386, says: 'The requirement that the easement involve only a
limited use or enjoyment of the servient land is a corollary of the nonpossessory character of the
interest. If a conveyance purported to transfer to A an unlimited use or enjoyment of Blackacre, it
would be in effect a conveyance of ownership to A, not of an easement.'To the same effect is
Restatement of the Law of Property, section 471, comment e, page 2964. Chapman v. Newmarket
Mfg. Co., 74 N.H. 424 [68 A. 8681, remarks that'an unlimited [218 Cal.App. 2d 7731 conveyance of
an easement is in law a grant of unlimited. reasonable use.'To the same effect is 17A, American
Jurisprudence, section 113, page 720."
[11] In order to protect its retained rights in valuable underlying road easements, Corporation in the
original deed conveyed Parcels 2 and 3 expressly for"road purposes" and therein specifically limited
their use as appurtenant to Parcel 1, as it is used as a single family dwelling site. It would not only
be contrary to the principle underlying the use of all easements but unfair to now permit plaintiffs,
who had full knowledge of the express limitations on the use of Parcels 2 and 3 at the time they
were conveyed to them, unlimited use of the easements contrary to the express purpose for which
they were granted, and their consequent imposition on Properties' underlying road easements of
additional unreasonable burdens. Properties has the right to enjoin such increase in the burden on
its road easements.
(12] Contrary to appellant's argument based upon Kent v. Koch, 166 Cal. App. 2d 579 [333 P.2d
4111, and Young v. Cramer, 38 Cal. App. 2d 64 [100 P.2d 5231, the valuable underlying road
easements and reversionary rights owned by Properties constitute sufficient material interest in
Parcels 1, 2 and 3 to protect it by suit to enforce the restrictions thereon and secure performance of
Agreement and Declaration No. 150-W. (Rosecrans v. Pacific Elec. Ry. Co., 21 Cal. 2d 602 [134 P.
2d 2451; Faus v. Pacific Elec. Ry. Co., 187 Cal.App. 2d 563 [9 Cal.Rptr. 697].)Agreement and
Declaration No. 150-W gives Properties the right, in various ways, to enforce its provisions. (Art. IV,
§ 6; art. IV, § 10; art. IV, § 4.)
The remaining contentions and arguments, minor in nature, do not justify further extension of this
opinion.
For the foregoing reasons the judgment is affirmed.
Wood, P. J., and FOUrt, J., concurred.
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Public Comments and Concerns
- loss of private views (currently protected by private deed
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- devaluation of surrounding properties
- vehicular access
Zoning Administrator
1 . Considered public comments/concerns:
- City doesn't enforce deed restrictions
- no private view protection ordinance
- alternative vehicular access via Ocean Boulevard
- lot size compatibility
- compliance with Zoning Code
2. Determined were facts in support of findings:
- approved lot merger (based on findings in staff report)
Planning Commission - 10/20/2011
Staff Presentation1
Appeal Filed
(September 22, 2011 )
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o Basis of Appeal: 2 findings not adequately addressed
o - health, safety, and welfare finding
o - legal access finding
PA2011-141 Planning Commission - 10/20/2011
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Interior Lot Standards: 00 s ft. 50 feet
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Proposed Merged Lot JI13,699.58 sq. ft. Iff 80 feet�I
Comparable Properties
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11900 Ocean Boul Iffr13, 326 sq. ft. REV 66 feet 'I
2908 Ocean Boulevard _10,049 sq. ft. 78 feet EI
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PA2011-141 Planning Commission - 10/20/2011
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PA2011-141 4g Additional Materials
Planning Commission Resolution No.
Page 3 of 7
A-5. The project is in an area with an average slope less than 20 percent and no changes
in use or density will occur as a result of the merger.
B. The lots to be merged are under common fee ownership at the time of the merger.
Facts in Support of the Finding:
B-1. The portions of lots 4,5, and 6 to be merged are under common ownership.
C. The lots as merged will be consistent or will be more closely compatible with the
applicable zoning regulations and will be consistent with other regulations relating to
the subject property including, but not limited to, the General Plan and any applicable
Coastal Plan or Specific Plan.
Facts in Support of the Finding:
D-1. The previously existing single-unit dwellings located on the subject sites will be
demolished, and the proposed lot would be redeveloped with a new single-unit dwelling.
Section 20.18.030 of the Zoning Code establishes minimum lot area and width
requirements. Each of the two existing lots meet the minimum lot area required, but do
not meet the minimum lot width required (50 feet). The proposed merger of the lots would
create one lot which would comply with the minimum lot width and lot area standards
required by the Zoning Code.
D-2. The Land Use Element of the General Plan designates the subject site as Single-Unit
Residential Detached (RS-D), which is intended to provide primarily for single-family
residential units on a single legal lot and does not include condominiums or cooperative
housing. The Coastal Land Use Plan designates this site as Single Unit Residential
Detached (RSD-B) which provides for density ranges from 6.0-9.9 DU/AC. The existing
development and proposed development of a single-unit dwelling on the site are
consistent with these designations.
D. Neither the lots as merged nor adjoining parcels will be deprived of legal access as a
result of the merger.
Facts in Support of the Finding:
E-1. Vehicular access to and from the subject site and adjacent properties would rernainAhe
sameis available via an alley providingand an ingress and egress easement at the rear of
the site. In addition vehicular access is possible from Ocean Boulevrd at the front of the
site.
E. The lots as merged will be consistent with the surrounding pattern of development and
will not create an excessively large lot that is not compatible with the surrounding
development.
PA2011-141 Planning Commission-10/20/2011
4h Additional Materials
ILSEASEMENTS '
Order No. 28668-D
Schedule D oantinued
1. Gwieral and special taxes for the fiscal year 1975°197`, alien riot
yet payable.
2. A right of cry or easement for the purrpvee of the erection, laying
and construction of a pipe line or pipe line® to convey sewageo and pipe
line or pipe limes to convey umter togetber with aypxtenanoss with the
right of cpzng in, c-ier and wider the p'Cemises for the purpose of repair-
ing, maintaining and replacing of said pipe lines in, over the Nort-ha
weterly 10 feet of said lard as granted to they City of nm-TxY& B"adar a
ami cipal corporation, by deed recorded July 20, .1.951 ii b-xk 21va, page
611, Official. RsWrda.
3. An easement for ingress arra , pipe lines and other public
utilities over the Northwesterly 10 feet of said land, as granted to
Pant O. Cleland and Sylvia A. Cleland, his wife, as joint t rants, by
deeds dated April 25, 1951 in book 2181, pages 235 and 237, reepecttively
of Official rWoords.
4. An easemait for the placement of garbage, rubbish, ete. . over the
Northsasterly 3 feet of the Southeasterly 10 feet of the Northwesterly
20 feet of said Tot 4 as granted in the deeds dated April 25, 1951 and
recorded May 11, 1951 in book 2187, pages 235 and 237 respectively of
Official Records.
5. An eawmmt for the place m.t uc yaraayta, i:;d bish, over the North-
easterly 3 feet of the Southeast([',y 1e: 'ezr4 dE Itit 31 as granted to
James D. Ray and Hazel May .t5 t:.` a. !-.y, .TY,'3 251 1953 and
recorded August 11, 1957 .Ye Yano?r X853, rwe>n. FRQ;. mfi-,Ml RVnr4s.
6. A deed of trust to secure an indebtedness of $70,000.000 and any
other axraounts as therein Provided, recorded Jure 17, 1976 as dootY mt
No. 23523.
Dated: June 7, 1976.
r% ufftor: John M. Silva and Jill V. Silva, husband and wife.
'ttu tee: nTperial Corporation of Aulerioa, a corporation.
IN-n.-kefi,ciery: dial Sai Lnge read La-I Asacciati.cm, a corporat=ion,
PA2011-141 Planning Commission-10/20/2011
4i Additional Materials
Appeal of Lot Merger (PA2011-141)
2808 and 2812 Ocean Boulevard
Lot Merger No. LM2011-002
Many municipalities have regulations in their zoning codes that limit the size and
scope of new structures (these include height and size restrictions, etc.). They were
enacted in many communities to discourage the destruction of old neighborhoods and
their replacement by oversized McMansions.
The Newport Beach Planning commission approved this merger based on the
following findings and subject to their conditions in their Zoning Administration Action
Letter dated September 14, 2011,
B.Approval of the merger, will not under the circumstances of this particular case, be
detrimental to the health, safety, peace, comfort and general welfare of persons residing
in or working in the neighborhood of such proposed use or be detrimental or injurious to
property and improvements in the neighborhood or the general welfare of the City, and
further that the proposed lot merger is consistent with the legislative intent of Title 19.
Also, in regard to the easement:
E. Neither the lots as merged nor adjoining parcels will be deprived of legal access as
a result of this merger
E-1. Vehicular access to and from the subject site and adjacent properties would remain
the same via an alley and ingress and egress easement at the rear of the site.
ARGUMENT AGAINST APPROVAL OF THE MERGER:
1. Re: Section B:
The proposed construction would have an impact on the general welfare of the
neighborhood and the tax base of the City by reducing the value of the affected property
interests of the superior estates that are used to allow access to the rear of the Guida
property. This reduction in value would result in lowered income to the City from the
three superior estates as well, in ail likelihood as other surrounding property. This is a
significant sacrifice being foisted on the population at large for the dubious benefit of
one family.
In addition, the attitude expressed by the Guidas through their counsel, regarding the
unlimited funds they will put into a legal fight and further implying that he would bury the
Cambells and Silvas under a mountain of legal fees, can only be described as elder
abuse considering the ages of the two families most immediately affected. These
families are now under no legal obligation to continue to permit the Guidas to use the
rear passage, running through their property. The easement as described in their deeds
runs only in favor of the City, and the assignors, and not the Guidas.
1
PA2011-141 Planning Commission-10/20/2011
4i Additional Materials
Appeal of Lot Merger (PA2011-141)
2808 and 2812 Ocean Boulevard
Lot Merger No. LM2011-002
2. Re: Section E and E-1:
a. Since the city does not recognize deed covenants, it should make no reference
to the so-called easement in its decision, and make that decision in light of what rights
would exist without the covenant.
b. In this case, without the covenant, under the current zoning rules, without the
easement, the Guidas do not have a right to combine the two lots, and the application
should therefore be denied.
c. The personal easement granted to the Guida properties was given solely for the
purpose of allowing the owners thereof to take their garbage to the point of collection.
None of the wording of the easement grants the owners of the Guida lots legal,
enforceable permission to use the passage as a driveway. Therefore, the Campbells
and the Silvas have a legal right to bar any and all non-municipal vehicular traffic.
d. In addition, since it is possible that the Guidas and the owners of the driveway
are headed for a legal battle, the determination of the Guidas application to combine the
two lots should at least be stayed until the issue of the so-called easement is resolved in
court.
e. Sections E & E-1, assume that the Guidas would continue to have access to the
passage in the rear of the their property. The owners of the passage have taken the
position that it is not an easement that runs for the benefit of the Guida property but an
accomodation, and that they can bar access at any time for any reason. The City
glossed over this issue by omitting section E-1 from its recent staff report (page 4,
section 4).
CITY OF NEWPORT BEACH PLANNING COMMISSION
Dated October 20, Planning Commission Hearing Agenda Item 4
SUBJECT: Appeal of Lot Merger (PA2011-141)
2808 and 2812 Ocean Boulevard
Members of this Planning Commission, these deed restrictions must either be
considered in their entirety or ignored. You can't cherry pick the parts of the covenant
that support the approval of this merger and disregard others as they relate to height.
For the reasons enumerated above, you must uphold our appeal and block the merger.
Respectfully submitted by:
POW(A/NAM 14 S1,.0 R%c wwdl 4rdik
II
PA2011-141 Planning Commission-10/20/2011
4i Additional Materials
Appeal of Lot Merger (PA2011-141)
2808 and 2812 Ocean Boulevard
Lot Merger No. LM2011-002
Please be advised, that in the event Mr. Guida gains permission from the City
Planning Commission and/or City Counsel to merge his properties and build as
he now intends, this case will end up in court, where besides strict enforcement
of the covenant as to height, we will seek to extinguish the access to the rear of
his property that he now enjoys. I think a close reading of the easement,
contained in the covenant, will show that Mr. Guida is not a direct beneficiary, so
closing it off to him will be a low hurdle to clear.
1. The easement is for the benefit of the city and Mr. Guida is not a direct
beneficiary. It does not impede access to his property. It was specifically for the
benefit of his assignors.
2. He can't claim adverse possession because the Campbell & Silva
families know he is using the driveway. He is using it with their permission. Mr.
Guida also knows that he has their permission.
3. This is a unilateral accommodation which can be withdrawn by the
Campbell's and Silva's at any time.
4. At best, Mr. Guida has an equitable interest which can only be enforced
if he has clean hands.
5. By breaking the deed covenant as to the height restriction, Mr. Guida
no longer has clean hands and the court should extinguish his access to the 96
foot road that runs through the property of the Campbell's and Silva's.
Enclosed please find the citation which stands for the above proposition.
'(Citation]"
Russell v. Palos Verdes Properties[218 Cal. App. 2d 754]
111
PA2011-141 Planning Commission-10/20/2011
4i Additional Materials
COVENANTS
"Much of the value of any property within[a coastline development with an ocean view]depends on the
quality of the view. To significantly obstruct any homeowner's view of the Pacific Ocean is to depreciate
the economic worth of their property-often by several hundred thousand dollars-as well as dramatically
reduce their enjoyment of the home they bought and live in."
- in Fox v. CORNICHE SUR MER HOMEOWNERS ASSOCIATION, 2008
The drafters of the original covenant that have always applied to Mr.Guida's lots were not being
vague, they had no special affinity to 1 story housing, their intent was clearly to protect the
ocean views for the benefit of each lot of this parcel. The ruling case on point, has been cited in
dozens of cases which all support our assertion that these restrictive covenants , as to the lots
in question, are not vague and will be enforced as to their intent.
"When the issue turns on the meaning of a phrase employed in CC&R's, "the phrase is to be
interpreted in its ordinary and popular sense rather than according to some strict legal or technical
meaning. This ordinary and popular sense is to be related to the circumstances under which the words
are used, having in mind the purpose of the contract and the general situation which brought it into
existence."A court may imply a term missing from the contract"only when it is necessary to prevent
injustice and it is abundantly clear that the parties intended to be bound by such term."
- in King v. Kugler(1961) 197 Cal.App.2d 651
Legal Effect of Covenants
When properly recorded on a deed conveying land, a covenant ("restrictive deed covenant") has the
legal effect of a binding contract term, and may be so enforced. When covenants are instead signed
privately among neighbors, as in a mutual compact or agreement, they are still binding upon the
signatories and may be litigated if breached. Neighborhoods that follow their covenants and standards
tend to be safer, look better, maintain better relationships with local governments, and better retain or
increase the investments that homeowners have made in their properties. Because covenants are
voluntary, they may be more restrictive that zoning ordinances.
Advice for Home Buyers
Many home buyers are so charmed by the appearance of a house for sale that they fail to take the time
to read the CC&Rs that come with the property.They are so pleased with a property that they sign a
purchase agreement without realizing that existing CC&Rs may prevent them from keeping their boat or
truck on the property, or erecting a basketball hoop in the driveway or building a Mcmanslon. No real
estate contract should be signed until a purchaser has reviewed all the CC&Rs (and zoning laws)
affecting the property and is able to abide by them.
In a nutshell, deed restrictions can place more stringent limits on a piece of land but
cannot loosen restrictions imposed by zoning [private cannot countermand government], but.
CC&Rs are binding upon the purchaser, and the purchaser will become subject to them,
whether or not they have been reviewed, read, or understood.
However, remember that deed restrictions must be considered even If the
City is not authorized to enforce them.
PA2011-141 Planning Commission-10/20/2011
4i Additional Materials
Appeal Lot Merger (PA2011-141)
As you requested, here is relevant case law relating to CC & R's, and your deed
covenant in particular.The cases cited directly relate to your current situation. It is also more
than relevant in that the first one was an CA appellate court case"[Citation.]" ( King v. Kugler
(1961) 197 Cal.App.2d 651, 655.)"that affirmed the prior courts ruling as to"intent"of height
restrictions and one story residence. That case has been cited in dozens of cases (including
those indicated below) which all support your assertion that these restrictive covenants
(Campbell &Silva; et al; v. Guide), as to the lots in question, are not vague and need to be
enforced as to their intent.
[1]"Although the instrument does not expressly declare the intent of the grantor to preserve the
view of lot owners, it is obvious from the language used, the topography and the [197 Cal.App.
2d 655]finished ground elevations of the tract and the general physical appearance of the land
and the existing structures thereon, that the purpose of the height restriction in the plan is to
protect the lot owner's view from one elevation to another. [2] Contrary to appellant's claim,we
see nothing vague, ambiguous or uncertain in the meaning of the restrictive phrase"one story in
height,"or as to what was intended thereby. It does not appear, nor have appellants contended,
that the words have a technical, special or peculiar meaning; they merely argue that to control
the height the grantor"should"have inserted a limit in feet and inches or other language from
which the intended maximum height could have been inferred exactly. Therefore, the phrase is
to be interpreted in its ordinary and popular sense rather than according to some strict legal or
technical meaning. "'This ordinary and popular sense is to be related to the circumstances
under which the words are used, having in mind the purpose of the contract and the general
situation which brought it into existence' (12 Cal.Jur.2d 353-354.)" (Harrison v. Frye, 148 Cal.
App. 2d 626, 628 [307 P.2d 76].)"[3]The document expressly declares that the restrictions and
conditions contained therein shall "run with the land and shall be binding on all parties"), apply
to all lots in the tract and be mutually enforceable, reflecting a specific intent to create
enforceable restrictions. (Gamble v. Fierman, 82 Cal.App. 180 [255 P. 269]; Martin v. Holm, 197
Cal. 733 [242 P. 718].)That the restrictions and conditions contained in the declaration of record
apply, as therein provided, to all lots in the tract and were expressly carried into the deeds, is
found in the language of each deed wherein the conveyance is specifically made subject to
"covenants, conditions, restrictions, reservations, easements, rights and rights of way of
record."(Smith v. Rasqui, 176 Cal.App. 2d 514 [1 Cal.Rptr. 478].)
The trial court's reliance on the Webster's Dictionary definition constitutes an acceptable
manner of ascertaining the ordinary and popular usage of words in the English language. "The
same rules that apply to interpretation of contracts apply to the interpretation of CC&R's. '"[Wle
must Independently interpret the provisions of the document. . . . It is a general rule that
restrictive covenants are construed strictly against the person seeking to enforce them, and any
doubt will be resolved in favor of the free use of land. But it is also true that the "'intent of the
parties and the object of the deed or restriction should govern, giving the instrument a just and
fair interpretation""" [Citation.]" (Chee v.Amanda Goldt Property Management(2006) 143
Cal.AppAth 1360, 1377.) When the issue turns on the meaning of a phrase employed in
CC&R's, "the phrase is to be interpreted in its ordinary and popular sense rather than according
to some strict legal or technical meaning."This ordinary and popular sense is to be related to the
circumstances under which the words are used, having in mind the purpose of the contract and
the general situation which brought it into existence."
"[Citation)'[Citation]'[Citation)'[Citation]"
1. King v. Kugler(1961) 197 Cal.App.2d 651, 655.
2. ZABRUCKYv. McAdams, Cal.,Court of Appeals, 2nd Appellate Dist., 7th Div. 2008
3. Cal.App. 4 Dist.,2009. Monarch Point Homeowners Assn v.Arditi, Not Reported in Cal.Rptr.3d, 2009
WL 1838286(Cal.App. 4 Dist.)
4. Seligman v. Tucker(1970) 6 Cal.App. 3d 691186 Cal.Rptr. 187]
IV