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TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: DIRECTOR OF PLANNING, BUILDING AND CODE ENFORCEMENT
DATE: June 17, 2003
SUBJECT: VIEW RESTORATION PERMIT NO. 118 - APPLICANT: MR. AND MRS. JAMES BECK, 4115 MARITIME DRIVE; FOLIAGE OWNER: MS. LYNN DORAN, 4110 MARITIME DRIVE
Project Coordinator: Trayci Nelson
Consider the applicant's request to incorporate the amended private agreement as part of the View Restoration Commissionís Decision on their previously submitted, but subsequently withdrawn, View Restoration Permit Application and provide Staff with direction as to the option that the Council wishes staff to pursue.
On May 21, 2002, continued to June 18, 2002, the Rancho Palos Verdes City Council considered the appeal by the foliage owner, Ms. Lynn Doran, at a duly noticed public hearing challenging the decision of the View Restoration Commission regarding View Restoration Permit No. 118 (VRP 118). The issues raised in the appeal are contained in the attached staff reports. The attached staff reports also discuss issues that were raised by the view applicants, Mr. and Mrs. Beck, who did not appeal the Commissionís decision.
However, before the public hearing was opened, the City Council indicated that the parties had stated that they were very near reaching an agreement and requested a recess to allow for further discussion (Minutes June 18, 2002). At the conclusion of the recess, both parties indicated that an agreement had been reached. The parties also requested that the case be withdrawn and all appeal and case processing fees be refunded to the respective parties, to which the City Council agreed. Subsequently, the City did return the fees to the parties, as directed by the Council. Thus, although the agreement was read into the record, the City Council did not take action on Ms. Doranís (foliage owner) appeal.
Shortly after the Council hearing, both parties seemed to differ on what initially had been agreed to, and the apparent agreement was not implemented. In May 2003, Staff received word from the Becks that a new agreement had been reached and that trimming had been completed to the satisfaction of both parties (see attached email dated May 19, 2003). However, the Becks (the original applicants on VRP No. 118) have requested that the City incorporate the current agreement into the original decision for VRP 118. That request is now before the City Council for consideration.
In considering the applicant's request, the City Council should evaluate the following options, some of which are based on the Cityís current procedures regarding view related cases:
Previously, the City Council has directed Staff to assist in the preparation of agreements between private parties via the View Restoration Pre-application process. However, it is important to note that the City has not been a party to such agreements and does not participate in the enforcement of them. Rather, Staff encourages interested parties to record the agreements against the title of the affected properties and to handle the matters in civil court should there be future disputes. Thus, under the Cityís existing process, the new private agreement between the Becks and Ms. Doran would be a civil matter that is handled independently of the City.
If the City were to become a party to the agreement, as suggested by the Becks, this would be an entirely different process than the process that has been used in other cases. In addition to deviating from the Cityís existing policy, having the City be a party to the agreement could require the City to enforce the agreement. This, in turn, will require an expenditure of general fund monies that would not be reimbursed. Stated another way, the City as a whole would be paying for the cost of enforcing an agreement that benefits one or two households.
Since the Becks and Ms. Doran have completed trimming to everyone's satisfaction, the City Council could direct Staff to document the current view from the Beck's viewing area. The documented view then would become the view that is protected by the ordinance, so that future growth of the foliage could be handled via the City's View Preservation process.
Staff and the City Attorney favor this option because it fits squarely within the Cityís existing View Preservation process so that any future deviation from the agreement can be addressed by the City as set forth in the Ordinance and the View Preservation Guidelines. By using the existing process, there is no question that the City would have the authority to enforce the documented view, which has been agreed to by both parties.
Although not consistent with any City policy, the Becks have requested that the City Council incorporate the agreement into the original decision by conducting a new appeal hearing, as requested by the Becks. However, since the case and the appeal were withdrawn as a result of the first agreement, and the City refunded all of the fees that were paid by the parties, the former decision that was rendered by the Commission, which was appealed to the Council, is no longer pending before the City. Because the matter is no longer pending, there is no case or decision that can be reopened to incorporate the new agreement.
In order to have a decision into which the agreement would be incorporated, the Becks either would have to file a new case, or would have to reinstate the prior application fee. However, paying the fee and reinstating the former case still may not solve the problem and allow the City to incorporate the agreement into a Council decision, since it was Ms. Doran, and not the Becks, who appealed the Commissionís decision to the City Council. Likewise, filing a new case at this point in time, after the parties have reached an agreement, is not a satisfactory solution, since it would be an unnecessary expenditure of time and money for the parties.
In the absence of a pending case, there is no City decision that can incorporate the agreement. Thus, if the City were to incorporate the agreement into a decision in a closed case and then subsequently attempt to enforce that agreement, this procedural anomaly could be used as a successful defense against the Cityís attempt to enforce the agreement and restore the view.
In May 2003, Mr. Beck indicated that an agreement had been reached and that trimming had been completed to the satisfaction of both parties. Mr. Beck is requesting that the City incorporate the private agreement into the VRP 118 decision so that the City is responsible for enforcing the agreement. Staff and the City Attorney recommend that the City Council approve Option 2, authorizing Staff to document the restored view and preserve the photographs of the restored view to address possible view preservation issues that may arise in the future.
The City Council could direct Staff to pursue Option 1, since that alternative is legally feasible to accomplish. Option 3 is not a viable option, because it would not withstand judicial scrutiny if the City were ever to attempt to enforce the agreement as part of the Cityí s decision in VRP 118.
Acting Director of Planning, Building
and Code Enforcement
May 21, 2002 VRP 118 Council Appeal report
June 18, 2002 VRP 118 City Council Appeal Continuance Report
June 18, 2003 City Council Minutes