Item 26 - Public Hearing Vista Heritage Charter School (601 North Fairview Street)

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December 8, 2023 Page 2 restrictions in the CC&Rs on the use of the area for a fenced play area if the owners of Buildings A and B agree on that use for the Common Area. However, the Business Park is also subject to an Easement Agreement which establishes easements over Parcels 1 and 2 and Parcels 3 and 4 for ingress and egress, as well as for parking. The Easement Agreement provides an exception for areas designated as "Restricted Common Area." Since the Buildings A/B Maintenance Area is considered a restricted common area, it should be exempt from the easement requirements. AS ORIGINALLY APPROVED, THE CC&RS REQUIRED THE COMMON AREAS TO BE ACCESSIBLE TO ALL BUSINESS PARK OWNERS, AND ONLY SPECIFICALLY DESIGNATED PARKING SPACES WERE CONSIDERED TO BE "RESTRICTED COMMON AREAS." As originally approved in April 1985, the CC&Rs stated that the "Common Areas" were to be used/accessible by all of the Owners and only specifically designated parking spaces were designated "Restricted Common Areas" that were "set aside for exclusive use of a Unit Owner or Owners.i2 Accordingly, with the exception of those designated parking spaces, all owners were meant to have access to all Common Areas. With respect to use, the CC&Rs stated that "Association, its members, employees, invitees and licensees shall have non-exclusive easements for ingress, egress and parking over the portions of the Common Area containing open space, and parking and driveway areas, except that parking may be restricted in the Restricted Common Area. i3 Under the original CC&Rs, the "Restricted Common Areas" were limited only to "Parking spaces designated "P" followed by the number of the Unit to which appurtenant" and the remainder of the Common Areas were for use by all owners.4 If all of those restrictions were still in place, it could be argued that the proposed play area would not be permitted as the Common Area could not be used for anything other than parking and access and would need to be accessible to all owners. Therefore, it could not be used for a play area and restricted to the use of only one owner. However, as discussed below, the CC&Rs have been amended such that the Common Areas are no longer subject to many of those restrictions. We understand that a neighbor who opposes the proposed project has argued that the CC&Rs restrict the erection of fences with common areas. However, the CC&Rs only explicitly state that "no parking spaces shall be fenced off." (emphasis added). The CC&Rs do not contain other restrictions on fencing with the Business Park. 2 CC&Rs Section 1.29. s CC&Rs Section 6.3. 4 CC&Rs Section 2.2.5. ''' ify Council 26 — 616 1/16/2024