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TO:HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL AND PLANNING COMMISSION
FROM:DIRECTOR OF PLANNING BUILDING AND CODE ENFORCEMENT
DATE:FEBRUARY 8, 2003
SUBJECT:VIEW RESTORATION AND PRESERVATION GUIDELINE REVISIONS
Staff recommends that the City Council and Planning Commission review the recommended revisions to the Guidelines that have been forwarded from the View Restoration Commission (VRC) and provide Staff with any additional input and direction.
On April 20, 2002, the City Council, after hearing a presentation on the view restoration process, decided to retire the View Restoration Commission and to transfer its workload to the Planning Commission. The Councilís action was prompted by the success of the Pre-application process, which has reduced the number of cases requiring VRC review. Council also agreed that the VRC should review and make recommendations for improving the existing View Restoration and Preservation Guidelines, prior to the final disbandment of the Commission.
In June of 2002 after receiving direction from the City Council to review the Guidelines, the VRC appointed a sub-committee and directed Staff to work with the committee to review the guidelines and to discuss how the process, via the Guidelines, could be clarified and possibly streamlined. The sub-committee met in July 2002 and from that meeting, several issues were discussed and presented to the VRC as suggested modifications. The issues were presented to the full VRC on October 3, 2002 (minutes attached). The issue areas discussed are listed below:
On November 21, 2002, Staff presented the final draft of the proposed Guideline revisions (as discussed on October 3, 2002) to the VRC to ensure that they reflected the intent of the Commission. The VRC approved the Guideline revisions and directed Staff to present the recommended changes to the City Council for final approval and adoption (minutes attached). On December 17, 2002, the City Council took action to formally disband the VRC and decided to postpone review of the Draft Guideline revisions to the February 8, 2003 Joint workshop to be held with the Planning Commission. On March 14, 2003, Staff presented an orientation and overview of the current View Restoration process to the Planning Commission. The proposed modifications are now being presented.
The proposed draft Guidelines, as recommend by the VRC, are based on the eight
issue areas noted above and a copy of the amended version of the Guidelines
is attached. Language that is proposed to be inserted is shown in underlined
text, while language that is to be deleted is shown in
Issue 1 What is a View, and should the significance determination be taken out of the equation.
The VRC's subcommittee proposed to revert back to the language of the original Ordinance and not let a determination of significance come into consideration. The subcommittee believed that this approach would help to eliminate the subjectivity in the review process and the possibility of missing foliage that may not be visible at the time of the site visit for staff report preparation. This would mean that the words "significant" and "significantly" would no longer be used to describe the threshold for allowable view impairment and that any foliage that blocked any part of the defined view frame would have to be trimmed to a specified point. Conversely, this would have also required an amendment to the Ordinance. The VRC did not agree with this approach and agreed to keep the significance determination as part of the review process. Additionally, the Commission believed that the sub-committee's desired result could be achieved without removing the word "significant". As such, this issue was addressed by making amendments to the text of the attached draft Guidelines in the following section: Section VII Application Procedures (E)
Issue 2 Simplify the determination on how often to trim by establishing specific trim levels and allowable growth heights.
The VRC established an extra provision to the existing maintenance schedule provisions whereby the Commission could craft conditions that allow for acceptable growth between the time of the initial trimming and subsequent scheduled trimming. This approach reduces the potential for disputes over a few leaves and inconsequential branches exceeding the established view frame. The concept would help reduce the unnecessary requests to Staff for review of insignificant foliage growth and it would eliminate the need to trim all foliage, which can grow at different rates. The following Section of the Guidelines has been modified to accommodate this change: Section V Commission Action (H).
Issue 3 Establish incentives for the view enforcement process.
Enforcement for current view preservation cases is generally based on a complaint made by the applicant that the foliage is in violation. Often the requests are made before the condition mandated maintenance trimming is to occur, which can be annually, semi-annually, quarterly, etc., and frequently the requests are investigated and determined to be unfounded. In order to reduce these types of requests, the VRC suggested that a financial deterrent be added to the maintenance request (or view code enforcement) process. Under the current process, Staff has to respond to almost every complaint call. The suggested process would make the applicant and foliage owner more accountable. The change would require that the applicant notify the foliage owner and the City, via a copy of the letter sent to the foliage owner, of the encroachment on their view. The foliage owner would then have 30 days to correct the view encroachment. If during that time the foliage owner and the applicant disagree on the view encroachment, then Staff would visit the site and make a determination. The inspection fee would be charged to the person (applicant or foliage owner) who is in error. The following Section of the Guidelines has been modified to accommodate this change: Section VIII View Preservation (A) 2.
Issue 4 Restrict lacing (a trimming technique) to the left and right edges of a view frame.
The subcommittee suggested that lacing should be used as a method to restore a view only when the view impairing foliage is located on the edges of an applicant's view frame. However, the VRC did not want to be as restrictive and felt that in some cases lacing a tree located in the middle of a view frame may be a viable option to restoring a view. The Guidelines were not modified and no change was made.
Issue 5 Assure that all required work is done with reasonable quality.
The VRC wanted a way to have more confidence that work ordered by the
Commission was being done with reasonable quality. As a result, the VRC agreed to modify the instructions to the applicant for obtaining bids, so as to require an ISA certified tree trimmer or accredited arborist on site to perform or supervise the work being done. The following Section of the Guidelines has been modified to accommodate this change: Section V Commission Action (K).
Issue 6 Review the tree replacement guidelines.
The VRC found an inconsistent statement in Section V (A) of the Guidelines that appeared to be in conflict with Section V (A) 4 related to the tree replacement Guidelines. However, after discussing the matter with the City Attorney, this issue was remedied by striking one sentence from Section V(A)4. The following Section of the Guidelines has been modified to accommodate this change: Section V Commission Action (A) 4. Additionally, the VRC wanted to eliminate the ability for a foliage owner to obtain replacement foliage (that is paid for by the applicant) when it is clear, based on the City Arborist recommendation, that the action to trim the foliage will likely kill the foliage and that removal with replacement is a more feasible option. The VRC agreed that the foliage owner should forfeit the right to a replacement tree if the work is done under these circumstances. The following Section of the Guidelines has been modified to accommodate this change: Section V Commission Action (B)
Issue 7 Review privacy issues.
The Commission agreed that some foliage owners overuse the privacy provisions of the Guidelines and that in many cases there really is no real argument for privacy protection. In some cases trees are so tall and the crown of the tree is so high that the only "privacy" afforded the person is by virtue of the tree trunk, yet the owner will insist that his privacy is seriously compromised. As such, the VRC modified the following section of the Guidelines to clarify that only pre-existing privacy is to be mitigated: Section V Commission Action (E) 1 (b). Additionally, a diagram that illustrates this process has been included.
Issue 8 Improve neighbor contact prior to the pre-application process.
The VRC wanted to require better evidence of early neighbor contact by having a box on a form checked by the applicant and requiring that a copy of a registered letter be submitted indicating that the applicant had made an attempt to contact the other party before filing a Notice of Intent Application with the City. The following Section of the Guidelines has been modified to accommodate this change: Section IV Commission Action (A) 2.
Other VRC Suggested Revisions
The View Restoration Commission also discussed and made minor changes to the Guidelines in areas that were not covered by the eight issues described above. Those changes are listed below.
Staff Suggested Clarifications
Staff believes that the following clarifications should be included in the current Guideline revisions. The following changes merely clarify existing policy and do not constitute a substantive change that would be contrary to the will of the now disbanded VRC or the former Ad Hoc Committee. The clarifications are as follows:
1.Section VII D5 (Application Procedures) of the Draft Guidelines has been modified to include language that helps clarify when staff reports will be distributed and when the Planning Commission should visit a site prior to the hearing.
Unless otherwise directed, Staff will include these changes along with other changes requested by the Planning Commission and/or City Council.
Ad Hoc Committee Amendments
On November 17, 1998, the then City Council appointed an ad hoc committee made up of then Mayor pro tem Lee Byrd and then Council member Marilyn Lyon. The ad hoc committee was instructed to review the view restoration and preservation process and to develop recommendations for improving the process and reducing the City's overall cost of administering the program. In July of 1999, the ad hoc committee presented its findings at a public workshop held with the full City Council with input from the View Restoration Commission. The ad hoc committee's report and the City Council's discussion focused on the following issues:
At the conclusion of the July 19th meeting, Council directed Staff to amend the Guidelines to reflect the comments and suggestions made on the issues noted above. The Council at that time agreed that the recommended changes would serve to strengthen and streamline the view restoration and preservation process. Thus, on September 7, 1999 the City Council met to discuss the recommended language revisions (September 7, 1999 staff report and minutes are attached). At that time, the Council decided that more time was needed to absorb the long and complex report and the item was continued to a future meeting. However, no action was subsequently taken as the ad hoc committee never met again. Staff included the previous ad hoc committee's recommendations into the version of the Guidelines presented to the VRC for their review. The VRC indicated no objections to implementing any of the amendments suggested in the attached September 7, 1999 staff report. A description of these amendments is contained in the attached September 7, 1999 staff report.
Relationship to the View Ordinance
According to the City Attorney, all of the proposed Guideline amendments described in this Staff Report may be adopted by the City Council without the need for additional amendments to the Ordinance.
Mediating Commissioners Role
On July 2, 2002, the City Council appointed five former View Restoration Commissioners as Mediation Commissioners. The appointed Mediation Commissioners are as follows: Ms. Neva Drages, Mr. Kenneth Dyda, Mr. Bruce (Bud) Franklin, Mr. Jim Slayden, and Mr. Paul Weber. Staff anticipates that their function in this capacity will remain the same, in that they will continue to participate on a rotational basis in the Pre-application meeting process by attending and facilitating the meetings. Since the Mediation Commissioners were not allowed to participate in VRC hearings that involved cases that they attempted to mediate, the Mediation Commissioners will not need to attend Planning Commission meetings.
Although Mediation Commissioners will not be formal members of the Planning Commission, they will need to stay abreast of City Council/Planning Commission related policy matters regarding implementation of the View Restoration and Preservation Ordinance. Therefore, all five mediating Commissioners have been invited and will be present at the joint workshop for the discussion of this item.
As described above, one of the View Restoration Commission's proposed recommendations is for the City Council to establish a maintenance request inspection fee. The recommendation was made with the intention that such a fee would encourage participants to work with each other thereby reducing the number of unfounded inspection requests made to staff. If the Council approves such a fee, Staff's workload with regard to these requests, would be reduced and there would be a slight increase in revenue to the City's General Fund.
On April 20, 2002, the City Council, after hearing a presentation on the view restoration process, decided to retire the View Restoration Commission after concluding its review of the View Restoration and Preservation Guidelines. In June of 2002 after receiving direction from the City Council to review the Guidelines, the VRC appointed a sub-committee and began its review of the Guidelines. On November 21, 2002, the VRC approved certain modifications to the Guidelines and directed Staff to present their suggestions to the City Council for final adoption. Given that the workload of the VRC has been transferred to the VRC, the Draft Guidelines are now being presented to the City Council and Planning Commission for review and comment.
Joel Rojas, AICP
Director of Planning, Building and
Draft View Restoration and Preservation Guidelines
View Restoration Commission Minutes of October 3, 2002
View Restoration Commission Minutes of November 21, 2002
Current Process Flow Chart
Acceptable Foliage Growth diagram
Typical View Frame v Privacy diagram
Sample View Restoration Private Agreement
City Council Staff Report and minutes from September 7, 1999