HomeMy WebLinkAboutLetter Procopio�procopior
Procopio, Cory, Hargreaves and Sav$ch LLP
c c, i
John C. Lernmo
Direct Dial: (619) 515-3294
E -mail: john.lemmo @procopio.com
Personal Fax: (619) 398 -0162
January 14, 2011
VIA ELECTRONIC MAIL AND FEDEX
rr harris(Make- elsinore.org
Matt Harris
Senior Planner
City of Lake Elsinore
130 South Main Street
Lake Elsinore, CA 92530
Re: CUP No. 2010 -07: Peaceful Paws LLC, 18345 Pasadena Street
Dear Mr. Harris:
By way of introduction, I am writing to you on behalf of Peaceful Paws LLC. Peaceful
Paws is in the process of applying for a Conditional Use Permit for an existing industrial facility
located at 18345 Pasadena Street (the "Property"). It is our understanding that a concern was
raised yesterday for the very first time regarding the 1986 private controls apparently recorded
against the partitioned property. The purpose of this letter is to address the issue and explain that
it poses no impediment to the City's ability to issue a CUP and authorize the use at the Property.
Peaceful Paws' Proposed Use
Peaceful Paws operates a veterinary clinic. The use at the Property will be a crematory
process as an ancillary service to veterinary services in the community and region. The use is
not inconsistent with other nearby existing uses.
2. The City's ZoningOrdinanceZoningOrdinance
It is our understanding that City staff agree that Peaceful Paws' proposed use is permitted
(with a CUP) under the applicable zoning provisions. It is our further understanding that but for
the concern raised yesterday about private controls, City staff would have no objection to the use
of the Property as proposed, and in fact is recommending approval of the CUP.
3. The Private Controls (CC &Rs)
Apparently, before the land was partitioned in 1986, the developer recorded private
covenants, conditions and restrictions (CC &Rs) against all parcels contained therein. We have
525 B Street, Suite 2200 • San Diego, CA 92101 • T. 619.238.1908 F. 619.235.0398
North County Office: 1917 Palomar Oaks Way, Suite 300 • Carlsbad, CA 92008 -6511 • T. 760.931 9700 F. 760.931.1155
www.procopio.com
113558/000001/1300231.01
Matt Harris
January 14, 2011
Page 2
not fully investigated whether the CC &Rs were ever or are still fully in place and enforceable, or
if they were superseded by other controls. But for purposes of this letter, we will presume that
they have not been superseded by subsequent controls. That is because even if valid, the CC &Rs
do not restrict Peaceful Paws' proposed use.
a. The Proposed Use is Not Prohibited
The CC &Rs permit all uses allowed within the City's limited and general manufacturing
zones, unless "specifically prohibited ". Attached is a complete copy of the CC &Rs at issue.
CC &Rs are construed "as a whole" so that "particular words or clauses" must be subordinated to
the general intent. (Ezer v. Fuchsloch (1979) 99 Cal.App.3d 849, 861.) Restrictive covenants
are construed strictly against the person seeking enforcement, and in favor of the unencumbered
use of the property. (See, e.g., Terry v. James (1977) 72 Cal.App,.3d 438, 443.) The objective
of the restriction governs, giving it a "just and fair" interpretation. (Lincoln Say. & Loan Assn. v
Riviera Estates Assn. (1970) 7 Cal. App.3d 449, 463.)
Among other things, the CC &Rs specifically prohibit certain uses, including those related
to dumping, disposal and incineration of garbage. Although the CC &Rs include the term "dead
animals" in what amounts to a definition of garbage, the proposed use cannot reasonably be
included as "dumping, disposal and incineration" as contemplated by the CC &Rs. To the
contrary, the private controls were intended to restrict junk yards and garbage dumps, not to
prevent an important ancillary function for veterinary clinics and operations throughout the
jurisdiction. Further, when read "as a whole ", it is clear that the CC &Rs were simply intended to
privately ensure that development complies with City zoning. (See, Section 3.01 of the CC &Rs,
"Permitted Operations and Uses ".)
b. Even if Previously Prohibited, the Restriction was Extinguished by
Acquiescence
The CC &Rs are private controls enforceable only by the landowners they are intended to
benefit. It is a well - established law of equity that landowners in a partitioned or subdivided tract
waive any right they may have to enforce CC &Rs when they acquiesce in similar uses at other
properties. (Johnstone v. Bettencourt (1961) 195 Cal.App.2d 538, 542.) Here in fact, there are
at least two crematory uses within the subject development that have existed for several years,
which are fully permitted by the City. A protesting landowner cannot turn back the clock and
selectively enforce CC &Rs in this context. (Id.)
Even if we assume that the private CC &Rs might affect the proposed use as between
subject landowners, that does not affect the City's ability or duty to permit the project/use.
Enforcement of CC &Rs is entirely a private matter. (See, CC &Rs Article V, "Enforcement ".)
We respectfully request that the City approve the CUP.
113559/0000011130023 1.01
Matt Harris �YProcopid
January 14, 2011
Page 3
In light of the fact that the agenda packets have already been distributed for next week's
meeting, I request that you forward this letter to the City Attorney as soon as possible so that she
may have ample opportunity to review our position before the Commission hearing. I also
request that this letter be distributed to the Planning Commissioners in advance of the hearing.
Thank you very much for your attention to this matter.
Very truly yo
John C. Lemmo, for
Procopio, Cory, Hargreaves &
Savitch LLP
JL:nk
Attachment
113558/000001/1300231.01
CHICAGO TITLEL)OMPANY
WHEN RECORDED MAIL T0: f
Elsinore Warm Springs Associates
35721 Beach Road \1,�a_�
AN
Capistrano Beach, CA 92624 s-� + 0
G G
W P .
DECLARATION �' N ��
COVENANTS, CONDITIONS AND RESTRICTIONS
(PROTECTIVE CONTROLS)
p THIS DECLARATION, made on this ist day of April, 1936, by Elsinore
t"( Warm Springs Associates, a limited partnership (hereinafter collectively
referred to as "Declarant ").
ARTICLE I
RECITALS
1.01 Declarant is the owner of certain real property in the County
of Riverside, State of California, more particularly described in Exhibit "A"
0
attached hereto and made a part hereof (hereinafter referred to as the "Property ").
1.02 In order to establish a general plan for the orderly use and
development of the Property, Declarant desires to subject the Property to
y certain conditions, covenants and restrictions, upon and subject to which
all of the Property shall be held, developed and conveyed.
ARTICLE II
GENERAL PROVISIONS
2.01 Establishment of Restrictions. Declarant, owner of the Property,
hereby declares that the Property is now held and shall thereafter be held,
transferred, sold, leased, conveyed and occupied subject to the restrictions
herein set forth, each and all of which is and for, and shall inure to, the
benefit of and pass with each and every parcel of the Property and shall apply
to and bind the heirs, assignees and successors in interest of Declarant and
any owner thereof.
9
2.02 Purpose of Restrictions The purpose of these restrictions is
to insure proper use and development of the Property, to protect the owner of
each parcel against improper use and development of surrounding parcels that
would depreciate the value of his parcel or interfere with his beneficial use
and enjoyment of his parcel, to secure and maintain proper setbacks from streets,
to prevent haphazard and unslightly improvements, and in general to provide
adequately for planned use and development of the Property in accordance with
the terms hereof.
2.03 Definitions For the purpose of these Protective Controls, the
following definitions shall apply:
(a) "Site" . All contiguous land under one ownership or lease.
(b) "Declarant" The undersigned, its successors and assigns.
(c) "Improvement ". Any building, outbuilding, parking area,
loading area, trackage, fence, wall, pole, sign, and any other structure of
any kind, and any landscaping or planting.
(d) "Occupant ". The lessee or owner of a Site and anyone
occupying or using such Site by, through or under the lessee or owner.
(e) "Setback ". A line upon a Site lying parallel to a
boundary line of such Site.
ARTICLE III
OPERATIONS AND USES
3.01 Permitted Operations and Uses The improvement, operation and
use of a Site shall be restricted to engineering, research, warehousing and
light to medium manufacturing operations described in Chapters 17.54 (light
manufacturing) and 1.7.56 (comrercial manufacturing) of the City of Lake Elsinore
zoning ordinance, and accessory uses incidental thereto, and such retail and
cOnnercial operations, expressly approved by Declarant in writing, as may, in
the opinion of the Declarant, be in harmony with, a quality industrial park
development.
(a) Maintenance All portions of the Property not improved
shall be cultivated and /or maintained free of debris and weeds at all times.
(b) Nuisances No portion of the Property shall be used in
such a way as to create a nuisance to adjacent sites such as but not limited
to vibration, sound, electro- magnetic disturbance, radiation, air or water
Pollution, dust, emission of odorous, toxic or noxious matter.
(c) Written Approval. Upon written request therefor, Declarant
shall be provided with evidence that proper controls, measures or devices will
be provided to insure and protect the interest, safety and general welfare of other'
I
II I
II
occupants of the Property from any and all such nuisances or hazards. All County,
State or federal laws, codes and ordinances shall be complied with including,
without limitation, the regulations of the Riverside County Air Pollution Control
District.
3.02 Specific Prohibitions. The followina operations and uses shall
not be permitted on any property subject to these restrictions:
(a) Trailer court.
p (b) Labor camp.
N
(c) Junk yard.
(d) .Commercial excavation of construction materials.
(e) Residential.
(f) Drilling for and /or removal of oil, gas or other hydrocarbon
substances.
(g) Drilling for and /or the removal of water, except by Declarant
or a public water agency.
(h) Stockyards or slaughter of animals.
(i) Dumping, disposal, incineration or reduction of garbage,
offal, deal animals or refuse.
(j) Poultry raising.
(k) Fat rendering or distillation of bones.
(1) Refining of petroleum or of its products.
(m) Smelting of iron, tin, zinc or other ores.
(n) Other operations and uses not compatible or harmonious
with the establishment and maintenance of a quality industrial park.
3.03 Specifically Permitted Operations and Uses Operations and uses
which are neither specifically prohibited nor specifically authorized by the Protective
Controls may be permitted in a specific case if approved in writing by Declarant.
Approval or disapproval shall be based upon consideration of the effect of such
operations or uses on other property subject to these Protective Controls or
upon the occupants thereof.
IV
ARTICLE IV
REGULATION OF IMPROVEMENTS
4.01 Minimum Setback Line
(a) General No structure of any kind, and no part thereof ,
shall be placed on any parcel closer to a property line than herein provided. The
following structures and improvements are specifically excluded from these
setback provisions:
(1)
(2)
(3)
(4)
(5)
(6)
any building front.
by Declarant;
Pole lines;
Underground pipe lines;
Conduits;
Landscaping;
Driveways, sidewalks and paving :
Fences, except that no fence shall be placed between
ige and any street unless written approval is given
(7) Streets and al leys;
(8) Roof overhang.
(b) Front Yard Setback The setback line is established thirty
(30) feet from the street curbing. The fi rst ten (10) feet must be landscaped; the
balance of which may be used for parking.
¢.02 Landscaping Every Site shall be landscaped according to plans
approved as specified in Article V and maintained thereafter in a 'sightly and w611-
kept condition. The following minimum landscaping requirements must be met:
(a) The first ten (10) feet of street frontage from the
curbing of any Site shall be landscaped.
(b) Landscaping shall be installed within ninety (90) days of
occupancy or completion of the building, whichever occurs first. An adequate
irrigation system, with automatic controls, shall be provided by the
occupant. All portions of the Site not improved shall be maintained free
of debris and weeds, at all times.
(c) If in the opinion of Declarant proper care and maintenance
0 of any landscaping area is not being exercised, Declarant may, upon having first
given five (5) days' notice in writing to the occupant, take such steps to
correct such improper maintenance, at the expense of the occupant, as Declarant,
in its sold discretion, may deem reasonable and necessary.
4.03 Maximum Building Area The total' building coverage shall not
exceed fifty percent (50 %) of the area of any Site.
4.04 Parking Adequate parking areas for all tenant, visitor
and occupant parking shall be provided on the Site with the intention being
that no on- street parking will be permitted. Parking areas shall be paved
to provide dust -free ail- weather surfaces. Each parking space provided shall
be designated by white lines painted upon the paved surface. If parking
requirements increase as a result of a change in use or number of employees,
additional off -street parking shall be provided to satisfy the intent of this
section. -
4.05 Building Construction and Maintenance Any building or
buildings erected.on a Site shall conform to the following construction and
maintenance standards in addition to such others as Declarant may reasonably
impose in connection with its approval of construction:
(a) Exterior walls shall be masonry construction, unless
a different material is specifically approved in writing by Declarant.
(b) Loading docks shall be set back to minimize their
visibility from the street. In no event shall loading docks be closer than
seventy -five (75) feet to any street property line unless specific written
approval for a closer location is obtained from Declarant.
(c) All building exteriors shall be maintained by occupants
at all times in a neat, orderly and weatherproof manner, including periodic
painting if painting is customary with respect to the exterior construction
materials employed for the building.
4.06 Completion of Construction After comoencment of construction
of any structure or improvements, the work thereon shall be diligently pursued
to the end that the structure or improvements shall not remain in a partly finished
condition any longer than reasonably necessary for completion thereof.
4.07 Signs No billboards, signs or other advertising devices shall
be permitted without specific written approval of Declarant; provided, however,
tbatnothing herein shall prohibit or restrict the right of an occupant
to display or have displayed on the Site one sign of customary and reasonable
H
dimensions, and complying with the requirements hereof as to location and media,
advertising the Site for sale or - lease. Signs eligible for approval will be
onlythose identifying the nar.:e, business and products of the occupant of the
Siteand those offering the Site for sale or lease. Signs shall conform to the
minimum setback lines provided in Article IV hereof, unless specific approval to
the contrary is granted by Declarant in writing. Signs visible from the exterior
of any building may be lighted, but no signs or other contrivance shall be
devised or constructed so as to rotate, gyrate, blink or move in any animated
fashion. Signs shall not be permitted to extend above the top of the building
to which they are affixed or placed on the roof of any building.
Al signs shall be of a common stele as approved by Declarant.
4.08 Outside Storage All outside storage shall be visually screened
from the street and adjacent property. Screening plans and specifications to
be submitted for approval by Declarant in the manner orovided in Article V hereof.
4.09 Old and Used Buildings. Construction and Excavation No old
or used buildings, except. temporary buildings or structures being used in
connection with the construction of permanent improvements, shall be moved onto
or maintained on any Site. Saie1' temporary buildings shall be removed in
their entirety promptly upon the completion of construction of. said permanent
Improvement. Occupant shall proceed diligently to complete all work required
in a first class, workmanlike manner. No excavation shall be made except in
connection with the construction of an improvement and, upon completion thereof,
exposed openings shall be backfilled and leveled.
4.10 Lot Splits or Resubdivision of S In the event that a
portion of a Site or of two or more contiguous Sites is severed in ownership from
the remainder of such Site or contiguous Sites, such portion so severed, and the
remaining portion of such Site, shall each thereafter be treated for all purposes
hereunder as separate Sites for the express purpose of imposing upon and sub -
jectiag each of such newly formed Sites to all of the Protective Controls.
ARTICLE V
EN FORCEMENT
5.01 Abatem and Suit. Violation or breach of any term or
Provision of these Protective Controls shall give to the Declarant and every
owner, lessee and occupant of property subject to these Protective Controls
the right, following five (5) days' notice in writing addressed to the premises,
G to enter upon any Site where. said violation or breach exists, and to summarily
ahate and remove, at the expense of the occupant thereof, any structure, thing
or condition that may exist thereon contrary to the intent and meaning of the
terms and provisions hereof, or to prosecute a proceeding at 7 aw or in equity
against the person or persons who have - violated or are attempting to violate
any of these Protective Controls to enjoin or prevent them from doing so to
cause said violation to be remedied or to recover damages for said violation.
5.02 Deeme a Nuisance The result of every action or omission
whereby any of these Protective Controls is violated in whole or in part is
hereby declared to be and to constitute 'a nuisance, and every remedy allowed by
law or equity against an owner, lessee or occupant, either public or private,
shall be applicable against every such result and may be exercised by Declarant
or by any owner, lessee or occupant of property subject to these Protective
Controls.
5.03 Legal Fe es. In any legal or equitable proceeding to enforce
or to restrain the violation of these Protective Controls, or to collect the
amount of costs of abatement as provided in Section 6.01, the losing party or
parties shall pay the attorneys' fees of the prevailing party or parties, in
such amount as may be fixed by the court in such proceedings.
5.04 No Wa iver; Cumulative Remedies The failure of Declarant or of
any other person to enforce any term or provision of these Protective Controls
shall in no event be deemed to be a waiver of the right to do so thereafter nor
of the right to enforce any other restrictions, conditions, covenants and agreements
contained herein. Al remedies provided herein or at law or in equity shall be
deemed to be cumulative and not exclusive.
5.05 Inspe ction. Declarant or its designees may from time to time,
at any reasonable hour or hours, enter and inspect any property subject to
g these Protective Controls _o ascertain compliance therewith.
C ARTICLE VI
EXTINGUISHMENT, CONTIUUAT10N
MODIFICATION AND ASSIGNABILITY
6.01 Term, Ex tinguishment, Continuation and Modifica These
Protective Controls and every term and provision hereof shall continue in full
force and effect for a period of fifty (50) years from the date hereof;
provided, however, that these Protective Controls or any terms or provisions hereof
may be terminated, extended, modified or amended, as to the whole of said Property
or any portion thereof, with the written consent of the owners (excluding lessees)
of fifty per cent (50X) of the property subject hereto, based on the number of
square feet owned as compared to the total number of square feet subject hereto
at the time in question; provided, however that as long as fifty per cent (50 %)
of property be improved with off site improvements and a minimum of 400,000 square
feet of improvements have been built.. No such termination, extension,
modification or amendment shall be effective until a proper instrument in
writing has been executed and acknowledged and recorded in the office of the
Recorder of Riverside County, California.
6.02 Assignabili of D eclarant's R ights Powers and Duties. The
rights, powers and reservations of Declarant herein contained may be assigned
toany person, corporation or association which is an owner (or is made up of
owners) of property subject hereto, provided that the assignee will, in writing,
accept the assignment and assume the duties of Declarant pertaining to such
rights, powers and reservations so assigned. The assignee shall, to the extent
of such assignment, have the same rights and powers and be subject to the same
obligations and duties as are given to and assumed by Declarant herein.
M
ARTICLE VII
!"1 MISCELLANEOUS
OD —_. - -_
7.01 Right of Access. Declarant retains the right of use and
A reasonable access to, under and across those portions of any Site which are
within ten (10) feet of exterior property lines for the installation of any
utility or telephone services, or railroad tracks when and whenever, at the
sole discretion of Declarant, the installation of such facilities appear
necessary; provided, however, that wherever practicable, such facilities shall
be installed in public or private parkways or streets.
7.02 Constru Notice and Accept ance. Every person who now or
hereafter owns or acquires any right, title, estate or interest in or to any
portion of the property subject hereto shall be conclusively deemed to have
consented and agreed to every tern and provision of these Protective Controls,
whether or not any reference to these Protective Controls is contained in the
instrument by which such person acquires an interest in said property.
7.03 Rioh of Encumbrancers All terns and provisions of these
Protective Controls shall be deemed subject and subordinate to all mortgages and
_ deeds o f trust now or hereafter executed upon real property subject hereto, and
none of said terms and provisions shall supersede or in any way reduce the
security or affect the validity of any such mortgage or deed of trust; .
provided, however, that if any portion of said property is sold under a fore-
closure of any mortgage or under the provisions of any deed of trust, and
purchaser at such sale, and his successors and assigns, shall hold any and
all property so purchased subject to all of the terns and provisions of these
Protective Controls.
7.04 Mutuality, Reciprocity, Runs with Land All restrictions,
conditions, covenants and agreements contained herein aremade for the direct,
mutual and reciprocal benefit of each and every part and parcel of the Property;
shall create mutual equitable servitudes upon each Site in favor of every other
Site; shall create reciprocal rights and obligations between the respective
owners of all Sites and privity of contract, and estate between all grantees of
said Sites, their heirs, successors and assigns, and shall, as to the owner of
each Site, his heirs, successors and assigns, operate as covenants running
with the land, for the benefit of all other Sites.
7.05 Paragraph Headings Paragraph headings, where used herein,
are inserted for convenience only and are not intended to be a part of
this Declaration or in any way to define, limit or describe the scope and
intent of the particular paragraph to which they refer.
O 7.06 Effect of Invalidation If any term or provision of these
Protective Controls is held invalid for any reason by any court, the invalidity
of such term or provision shall not affect the validity of the remaining terms
and provisions hereof.
IN WITNESS WHEREOF, the undersigned has caused the execution of this
Declaration on the date first hereinabove written,
ELSINORE WARM SPRINGS ASSOCIATES,
a limited partnership
Steven M. Brown, General Partner
By ,
Ju Fer nberg McGi11, Gener�er
'DECLARANT'
CIAL SEAL
'N GAGNON
Ee::3 9LIC • CALIFORNI A RV)E COUNTY apkos MAR 7, 1899
FOR NOTARY SEAL OR STAMP
SI A rEOF CAI A FORNIA
>
CotINTV OF Riverside- 51.
s
•
April 1, 1986
(in hn(nro me,
Ihcrc inu,t the. A y.atiw d the am ,
`„'
persommyx paarud Steven M. arcwn, General Pa rtner
a[ed Judy Ferrenberg McGill, General Part
9
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peoomlbkmwn to mctw pmsN to me nn the M1xsis o(satisfaetory
Y`
esiaetRel to bs t he person ut,t execute) this imtrumem, en behal(or
V y'
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,he partncrslupanda YnnukdgeJ mmotLLit the pnrtnershipeaecaN.
,
!!!
T.
Helen Gagnon
Nowry Public in sN for vitl ('ounry and titaty
CIAL SEAL
'N GAGNON
Ee::3 9LIC • CALIFORNI A RV)E COUNTY apkos MAR 7, 1899
FOR NOTARY SEAL OR STAMP
EXHIBIT A
PARCEL 1:
Lots 5, 6, and 9 through 13, inclusive of GOODWIN, WRITTEN AND ELLIOTT'S
q� SUBDIVISION of Lots 8 and 9 in Block A of Elsinore, as per map recorded
�O in Book 4, page 241 of Maps, in the office of the County Recorder of San
M Diego County.
PARCEL 2:
Lot 11 in Block A of SUBDIVISION OF ELSINORE, as per map recorded in Book 8,
page 377 of Maps, in the office of the County Recorder of San Diego County
PARCEL 3:
Parcel Map 21297, Lots 1 - 30, formerly known as Lot 10 in Block A of
SUBDIVISION OF ELSINORE, as per map recorded in Book 8, page 377 of Maps,
in the office of the County Recorder of San Diego County.
Said land being show as PARCELS 1 to 30 Inclusive of PARCEL ITAP 21297 as
per Map recorded in Book 135 pages 57 to 59 inclusive of Parcel Maps in the
Office of the County Recorder of said County.
3
11