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

Home Browse Search

December 8, 2023 Page 3 THE BUSINESS PARK IS ALSO SUBJECT TO AN AGREEMENT RE RESTRICTIVE COVENANTS THAT GRANTS NON-EXCLUSIVE EASEMENTS FOR INGRESS, EGRESS AND VEHICULAR PARKING. The site is also subject to a non-exclusive easement for ingress, egress and vehicular parking pursuant to the Agreement of Reciprocal Easements, dated June 17, 1986. That Easement Agreement establishes easements over Parcels 1 and 2 and Parcels 3 and 4 for "reciprocal, nonexclusive easements for ingress and egress to and from the respective Parcels, as well as easements for parking except on those areas of Parcels 1 and 2 which are Restricted Common Area." Importantly, the easements contain an exception for "portions which are designated as Restricted Common Area." As discussed below, since the entire Buildings A/B Maintenance Area is now designated as an "Exclusive Use Common Area" it should be excluded from the ingress, egress and parking requirements established in the Agreement. The Easement Agreement predates the Second Amendment to the CC&Rs, and was approved prior to the formal separation of Buildings A and B from C and D. Accordingly, any restrictions on fencing between the two areas have arguably been superseded since the Second Amendment explicitly states that the Buildings AB Common Area and all portions of the Buildings AB Maintenance Area have been "set aside for exclusive use" of those buildings. THE SECOND AMENDMENT TO THE CC&RS DESIGNATED THE ENTIRE BUILDINGS A/B MAINTENANCE AREA AS AN "EXCLUSIVE USE COMMON AREA" TO BE USED ONLY BY BUILDINGS A AND B WITHOUT ADDITIONAL RESTRICTIONS ON USE. The Second Amendment to the CC&Rs, effective May 2016, divided the Common Areas for Buildings A and B from the Common Areas for Buildings C and D and reallocated and separated the maintenance obligations and costs for those common areas.5 In other words, the Buildings AB Common Area became the "responsibility" of the owners of Buildings A and B and the Buildings C/D Common Area became the responsibility of the owners of Buildings C and D. Most critical, the Second Amendment explicitly modified the language in the CC&Rs so that the Buildings AB Common Area and Buildings A/B Maintenance Area became a "Restricted Common Area" only for use by Buildings A and B. Specifically, the amendment stated that the "Buildings AB Maintenance Area is hereby set aside and allocated for the exclusive use of the Buildings AB Owner and shall constitute "Restricted Common Area" appurtenant to the condominium rights within Buildings AB. Such Restricted Common Area shall constitute "Exclusive Use Common Area" within the meaning of Section 6550 of the Commercial 'The Second Amendment defines the Buildings AB Common Area as "including exterior landscaping areas, parking areas, driveways and other pedestrian and vehicular access ways, trash enclosures and receptables and exterior lighting within the Buildings AB Common Area..." CC&Rs Section 1.4A. The Second Amendment focuses on the maintenance obligations and expenses as they relate to the Common Areas. However, the Second Amendment did not change the ownership interests in the Common Areas. While the Common Areas may technically have remained under common ownership, the Second Amendment establishes that the Buildings AB Common Area is now allocated for the exclusive use of Buildings A and B. As such, the owners of Buildings C and D arguably no longer have any use or access rights to that area and therefore it would no longer be considered 'common" to all owners. 111' ify Council 26 — 617 1/16/2024