Rancho Palos Verdes City Council
   

TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL

FROM: DIRECTOR OF PLANNING, BUILDING AND CODE ENFORCEMENT

DATE: DECEMBER 16, 2003

SUBJECT: VIEW RESTORATION PERMIT NO. 153 - APPEAL (APPLICANT: MR. AND MRS. ROY GOERN, 26 COVEVIEW DRIVE; FOLIAGE OWNER: MR. JAE PARK, 24 OCEANAIRE DRIVE)

Project Coordinator: John Alvarez

RECOMMENDATION:

Adopt Resolution No. 2003-__; affirming the decision of the Planning Commission (PC) and approving View Restoration Permit No. 153 upon finding that all applicable findings have been correctly made and all provisions of Section 17.02.040 have been complied with.

BACKGROUND

After conducting a duly noted public hearing, the Planning Commission approved View Restoration Permit No. 153 on September 9, 2003. Specifically, the Commission directed that a stand of Pittosporum trees located at 24 Oceanaire Drive (Park Property - appellant) be trimmed so as to restore a view from 26 Coveview Drive (Goern property). In addition, the Planning Commission directed that five (5) trees be trimmed on a property located at 26 Oceanaire Drive (Trudell property) and three (3) trees located at 28 Oceanaire Drive (Bonanno property) be trimmed. The Conditions of Approval memorializing the PC's decision were distributed to the interested parties on September 10, 2003, which was then considered the beginning of the appeal period. On September 19, 2003, within the fifteen-day appeal period, Mr. Park via his attorney, Mr. Christopher Lee, appealed the Commission's decision to the City Council. The appeal hearing is now before the City Council for consideration.

DISCUSSION

Planning Commission Decision

In considering the applicant’s request for view restoration, the Commission determined that five (5) trees located at 24 Oceanaire Drive, five (5) trees at 26 Oceanaire Drive and three (3) trees at 28 Oceanaire Drive significantly impair the view from the applicant's property located at 26 Coveview Drive. Accordingly, the Commission ordered that the five (5) Pittosporum trees located at 24 Oceanaire Drive be trimmed down approximately 5 feet or to the level of the solid line as shown in the photo Exhibit C of the Staff Report, whichever is lower. The Commission also ordered five (5) trees of various types be trimmed (Trudell property) and two (2) trees on the Bonanno property be trimmed and one tree removed (Site Map- exhibit "D").

A description of the applicant's view and viewing area is contained on page 2 of the attached Staff Report to the Planning Commission, dated September 9, 2003. Also contained in the attached Staff Report (pages 4 and 5) is a summary of Staff's recommendation to the Commission. The Planning Commission’s decision is contained in attached PC Resolution 2003-41. The excerpt minutes from the Planning Commission’s September 9, 2003 meeting are also attached.

In the attached appeal letter, dated September 19, 2003, Christopher Lee, Jae Park's attorney states the reasons he believes that the Planning Commission was in error by approving View Restoration Permit No. 153.

Appeal Issues

The grounds of the appeal as noted in Mr. Lee's letter of appeal dated September 19, 2003, are repeated below (in bold), followed by staff's discussion of the appeal points.

1. "The foliage located at 24 Oceanaire Drive does not significantly impair the view which entitles the View Restoration Permit as it applies to the property located at 24 Oceanaire Drive."

Staff’s Response:

The Planning Commission determined that the applicant’s ocean and Catalina Island view is significantly impaired by the combination of foliage found at 24, 26, and 28 Oceanaire Drive. The foliage located on the Park property impairs the view of the Ocean. The Commission’s decision is consistent with the mandatory finding:

"Foliage exceeding sixteen (16) feet or the ridge line of the primary structure, whichever is lower, significantly impairs a view from the applicant's viewing area, whether such foliage is located totally on one property, or when combined with foliage located on more than one property."

The subject foliage has been determined to exceed 16 feet and the ridgeline of the foliage owner’s (Park) property. The Commission considered Mr. Goern’s request based on the combining effect of view-impairing foliage found at 24, 26, & 28 Oceanaire Drive. In addition, the degree of impairment was evaluated based on the position of all the foliage within the view frame. Del Cerro Park bounds the view frame to the southwest and residential structures to the southeast. The appellant’s view impairing foliage is located at the right, center of the view frame.

2. "The Planning Commission’s decision was made without determining a viewing area. In fact, the Planning Commission based its decision on two viewing areas, one from inside 26 Coveview Drive property and the other from the patio adjacent to the structure of the property."

Staff’s Response:

In Staff’s report to the Planning Commission (page 2), Staff identified the viewing area as such:

"The applicant’s view of the ocean and Catalina Island is taken from the living/dining room and rear yard patio. The view is the same from the each location".

The Commission determined that the view taken from the applicant’s living room and the adjoining dining room are considered to be the applicant’s best and most important viewing area. The applicant’s rear yard patio adjacent to the living room was also considered because this outdoor view is the same as that of the interior view. The photograph shown in Exhibit "E" was taken on the patio area, next to the living room’s sliding glass door. The Planning Commission’s decision was primarily based on the viewing area taken from the interior (living/dining room) of the applicant’s residence.

Although greater weight is generally given to locations within residential structures, areas outside of the structure are allowed (with limits) as viewing areas pursuant to Section III (B)(1) of the View Restoration Guidelines and Procedures dated July 1, 2003.

  1. "The grant of View Restoration Permit No. 153 as requested will improve the view rather than restoring the view that previously existed."

Staff’s Response:

Complete restoration of the view is impractical since the residential development tract where the subject properties are located was absent of trees and residential structures at the time the subject lots were created. Therefore, the appellant is correct that the Planning Commission's decision will result in the improvement of the view rather than providing the completely unimpaired view that existed at the time the subject lots were created. The Planning Commission's decision is consistent with the intent of the City's view restoration ordinance because the Ordinance allows the Planning Commission to require the trimming of trees that significantly impair an applicant's view. The Planning Commission did not impose unreasonable tree trimming requirements such as trimming foliage below the protected view of the ocean nor did the Commission require the removal of the trees that impaired the view. Where the Commission decided to remove trees, such as the Pine tree located at 28 Oceanaire Drive, the foliage owner consented to the removal.

4. "The trimming of the foliage located at 24 Oceanaire Drive will significantly invade the privacy of the residents at said property."

Staff’s Response:

The Planning Commission determined that the decision to trim the subject foliage at 24 Oceanaire Drive will not significantly invade the privacy of the resident as the Pittosporum trees will not be trimmed below the level of the foliage owner's roofline. Thus, the trimming level directed by the Planning Commission will preserve the portion of the subject trees that presently screen the residential structure and the rear yard at 24 Oceanaire Drive from the applicant’s residence located at 26 Coveview Drive.

5. "The decision of the Planning Commission is vague and ambiguous leaving much of the trimming to subjective judgment of the commission’s staff. (Condition 10 of Exhibit ‘A’ to View Restoration Permit No. 153)."

Staff’s Response:

In reference to Condition No. 10 of Exhibit "A" (Resolution No. 2003-41), the appellant believes that the Planning Commission’s decision as to the trimming level is vague and ambiguous. Condition No. 10 of the Conditions of Approval states:

"Since the tree levels described in Conditions 1 through 8 are approximates, adjustments to the trimming levels may be made by Staff during the initial trimming to ensure that the applicant’s view is restored. Once the trimming is complete, the restored view shall be documented and subsequent growth will be allowed to grow up to one year after the initial trimming."

Except for one Pine tree at 28 Oceanaire Drive that the Planning Commission directed to be removed, all of the trees subject to the Planning Commission’s decision are to be trimmed to a specific level. The height levels specified by the Planning Commission are based on approximate height measurements made by Staff. Since the subject foliage obstructs the lower limit of the ocean view, Staff estimated that the trimming level that would restore the view is at the solid red lines illustrated in Exhibit C of Staff's Report to the Planning Commission (attached). The Planning Commission decided to use both the solid red line levels and the height measurements, which are approximately the same level, to determine the level to which the ocean view will be restored. The height differential between the solid red line levels and the height measurement, at that time of the decision, was approximately 2 foot. The solid red line levels are a more stable trimming reference because the red line levels represents the lower limit of the ocean view.

Since the tree trimming height levels are approximations, the Commission ensured that the view was to be restored by incorporating Condition No. 10 to the Conditions of Approval by allowing Staff to direct further minor trimming adjustments, if any, on- site to fulfil the intent of the Planning Commission's decision.

  1. "The decision of the Planning Commission was based on ‘guesstimates’ and ‘eyeballing’ testimonies of its staff rather than accurate measurements."

Staff’s Response:

The Commission did not base their approval of the permit on eyeball measurements. The context of staff’s testimonial in the referenced quotations refers to one Commissioner’s question to Staff as to how Staff ensures the trimming level is established while the trees are trimmed. The context of the question and the reply by staff is reflected below and on page 7 of the Planning Commission Minutes:

"Commissioner Cartwright asked staff how the trimming line is established while the trees are being cut.

Staff Coordinator Alvarez answered that it was done by eye, based on the photograph and recommendation of the Planning Commission.

Director/Secretary Rojas added that there would also be another staff member standing at the viewing area communicating to the other staff member at the foliage site."

Staff’s reply merely described how the View Restoration staff members assured that the trimming level was pruned to a level directed by the Planning Commission without the implementation of measuring devices.

CONCLUSION

Staff has found no basis contained in Mr. Parks appeal, nor uncovered any other information since the September 9, 2003 Planning Commission hearing, that would warrant altering the Planning Commission's original decision. Staff therefore recommends that the City Council dismiss the appeal, and affirm the Planning Commission's decision memorialized in PC Resolution No. 2003-41.

ALTERNATIVES

As an alternative to Staff's recommendation, pursuant to Municipal Code Section 17.02.040(C)(2)(g), the City Council may wish to consider the following options:

1. Approve View Restoration Permit No. 153, but impose additional or different conditions as the City Council deems necessary to fulfill the purpose of Municipal Code Section 17.02.040(C)(2).

2. Disapprove the application upon finding that all applicable findings cannot be made or all provisions of Municipal Code Section 17.02.040(C)(2) have not been complied with.

3. Refer the matter back to the Planning Commission to conduct further proceedings. If this alternative is selected, the City Council shall state the grounds for the remand and shall give instructions to the Planning Commission concerning any error found by the City Council in the Commission's prior determination.

Respectfully submitted:

Joel Rojas,

Director of Planning, Building

and Code Enforcement

Reviewed:

Les Evans,

City Manager

Attachments

Exhibit "A" - Letter of appeal from Mr. Christopher Lee dated September 19, 2003

Exhibit "B" - Planning Commission Staff Report dated September 9, 2003

Exhibit "C" - P.C. Resolution No. 2003-41

Exhibit "D" - Site plan

Exhibit "E" - Photograph of view

Exhibit "F" - Planning Commission Minutes

Exhibit "G" - City Council Resolution No. __ upholding the Planning Commission' s decision

RESOLUTION NO. 2003 -

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES AFFIRMING THE PLANNING COMMISSION’S APPROVAL OF VIEW RESTORATION PERMIT NO. 153 TO TRIM AND/OR REMOVE FOLIAGE AT 24, 26, and 28 OCEANAIRE DRIVE.

WHEREAS, on February 19, 2003, Roy and Nancy Goern, owner of property located at 26 Coveview Drive (herein "the applicant"), in the City of Rancho Palos Verdes, filed an application requesting a View Restoration Permit ("Permit") to restore a view from their property that is significantly impaired by foliage owned by Mr. Jae and Mrs. Tae Park, at 24 Oceanaire Drive, Ms. Diane Trudell, at 26 Oceanaire Drive and Ms. Kay Bonanno, at 28 Oceanaire Drive (herein "the foliage owner"), in the City of Rancho Palos Verdes ("City"); and,

WHEREAS, notice of the Planning Commission ("Commission") hearing, along with copies of the Staff report, were mailed to the applicant and the foliage owners, on August 21, 2003; and,

WHEREAS, on September 9, 2003, after all voting members of the Planning Commission had visited the sites, the Commission held a duly noticed public hearing to consider the request, at which time, all interested parties were given an opportunity to be heard and present evidence, The Planning Commission made all necessary findings, and approved View Restoration Permit No 153 by adopting Planning Commission Resolution No. 2003-41; and

WHEREAS, on September 19, 2002, within the fifteen day appeal period, Mr. Park, the foliage owner at 24 Oceanaire Drive, appealed the Commission's decision to the City Council; and

WHEREAS, after notice issued pursuant to the requirements of the Municipal Code, the City Council held a public hearing on December 16, 2003, at which time all interested parties were given an opportunity to be heard and present evidence on the notice of appeal, the City Council re-affirmed the approval of View Restoration Permit No. 153 to trim and or remove trees at 24, 26, and 28 Oceanaire Drive.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES DOES HEREBY FIND, DETERMINE, AND RESOLVE AS FOLLOWS:

Section 1: The applicant at 26 Coveview Drive has a view, as defined by Section 17.02.040 of the City’s Development Code, of the Pacific Ocean and Santa Catalina Island.

Section 2: The applicant's primary viewing area, as defined by Section 17.02.040 of the City’s Development Code, is from the living room and dining room.

Section 3: The applicant has a view that is significantly impaired by five (5) trees at 24 Oceanaire Drive, five (5) trees at 26 Oceanaire Drive and three (3) trees located at 28 Oceanaire Drive.

Section 4: The applicant has complied with the early neighbor consultation process and has shown proof of cooperation on their part to resolve conflicts. The applicant has attempted to resolve the conflict with the foliage owners through meetings and telephone calls. Ms. Trudell and Ms. Bonanno declined the pre-application meeting for this case. Mr. Park and the applicant attended the pre-application meeting, however no private agreement was reached. Pursuant to the View Restoration Guidelines, the applicant has complied with the early neighbor consultation process.

Section 5: Based on evidence provided by the applicant, the subject trees located at 24, 26, & 28 Oceanaire Drive significantly impair the applicant's view. All of the subject foliage exceeds the height of the ridgeline of the primary structure or 16 feet and significantly impairs the view from the applicant's viewing area.

Section 6: The subject properties are located less than one thousand (1,000) feet from the applicant's property. The properties at 24 and 26 Oceanaire Drive abut the applicant's property. The property at 28 Oceanaire Drive is approximately 84 feet east of the applicant’s property.

Section 7: The foliage significantly impairing the view did not exist, as view impairing vegetation, when the lot from which the view is taken was created. All of the properties that are a part of this application were created in 1961 under Tract No. 25817. When the subject lots were created, the tract was stripped of all vegetation during the mass grading. Therefore, the subject trees could not have been in existence when the lots were created.

Section 8: The recommended trimming of the subject trees will not increase the visibility of the foliage owners’ residences from the applicant’s property. The portion of the foliage that impairs the view is well above the foliage owners’ rooflines and the subject foliage will not be trimmed below the height of the rooflines. Therefore, trimming the subject foliage will not cause an unreasonable infringement of the privacy of the occupants of the property upon which the foliage is located

Section 9: Removal of the subject trees as identified in the attached Exhibit "A", is necessary in order to restore the applicant's view.

Section 10: Pursuant to Section 15300 of the California Environmental Quality Act, the proposed project is categorically exempt under Class 4 of that section because the work required to restore the applicant's view does not include the removal of scenic and mature trees as identified by the City of Rancho Palos Verdes General Plan (Visual Aspects; Figure 41).

Section 11: Section 1094.6 of the California Code of Civil Procedure governs the time within which the judicial review of the decision reflected in this Resolution, if available, must be sought.

Section 12: For the foregoing reasons and based on the information and findings included in the Staff Report, Minutes and other records of proceedings, which are attached hereto by reference, the City Council of the City of Rancho Palos Verdes hereby denies the appeal, thereby upholding the Planning Commission’s decision and approves View Restoration Permit No 153 to trim and/or remove trees at 24, 26, and 28 Oceanaire Drive in order to restore the view from 26 Coveview Drive, as requested and provided for in the conditions outlined in the attached Exhibit "A".

PASSED, APPROVED, AND ADOPTED on the 16th day of December 2003.

Mayor

ATTEST:

City Clerk

STATE OF CALIFORNIA )

COUNTY OF LOS ANGELES ) ss

CITY OF RANCHO PALOS VERDES )

I, Jo Purcell, City Clerk for the City of Rancho Palos Verdes, hereby certify that the above Resolution No. 2003-____was duly and regularly passed and adopted by the said City Council at a regular meeting held on December 16, 2003.

EXHIBIT "A"

CONDITIONS OF APPROVAL

VIEW RESTORATION PERMIT NO. 153

  1. Pittosporum trees (labeled Tree No. 1) located at 24 Oceanaire Drive:
  2. Trim the tree crowns down five (5) feet or to the level of the solid line as shown in the photo (Exhibit C), whichever is lower. Said trimming shall include shaping.

  3. Bottlebrush and New Zealand Christmas tree (labeled Tree No. 3 & 4, respectively) located at 26 Oceanaire Drive:
  4. Trim the tree crowns down four (4) feet or to the level of the solid line as shown in the photo (Exhibit C), whichever is lower. Said trimming shall include shaping.

  5. Olive tree (labeled Tree No. 5) located at 26 Oceanaire Drive:
  6. Trim the tree crown down six (6) feet or to the level of the solid line as shown in the photo (Exhibit C), whichever is lower. Said trimming shall include shaping.

  7. Olive tree (labeled Tree No. 6) located at 26 Oceanaire Drive:
  8. Trim the tree crown down seven (7) feet or to the level of the solid line as shown in the photo (Exhibit C), whichever is lower. Said trimming shall include shaping.

  9. Jacaranda tree (labeled Tree No. 7) located at 26 Oceanaire Drive:
  10. Trim the tree crown down approximately five (5) feet or to the level of the solid line as shown in the photo (Exhibit C), whichever is lower. Said trimming shall include shaping.

  11. Pine tree (labeled Tree No. 8) located at 28 Oceanaire Drive:
  12. Remove tree without replacement. Said removal shall include stump grinding to grade.

  13. Pepper tree (labeled Tree No. 9) located at 28 Oceanaire Drive:
  14. Trim tree crown down approximately six (6) feet or to the level of the ridgeline of the Bonanno residence, whichever is lower. Said trimming shall include shaping.

  15. Pine tree (labeled Tree No. 10) located at 28 Oceanaire Drive:
  16. Trim the tree by raising the crown 35 feet above the base of the tree or to the dashed line, which represents the ocean horizon, as shown in the photo (Exhibit C). Said trimming shall occur during the cooler months of the year (Nov. - Mar.).

  17. Upon completion of said trimming, if additional foliage on the subject properties is found to be impairing the view, than the offending foliage shall be trimmed to a height as not to impair the view from the applicant’s property.
  18. Since the tree levels described in Conditions 1 through 8 are approximates, adjustments to the trimming levels may be made by Staff during the initial trimming to ensure that the applicant’s view is restored. Once the trimming is complete, the restored view shall be documented and subsequent growth will be allowed to grow up to one year after the initial trimming.
  19. The foliage owners shall be responsible to maintain the foliage in such a manner as to not significantly impair the applicant's view by trimming the foliage specified in this permit on an annual basis, or as specified above, if different, beginning one year after the initial trimming of the foliage is completed and verified by Staff.
  20. If any tree or shrub that is ordered to be culled, laced, or trimmed dies within one year of the initial work being performed due to the performance of the work, the applicant or any subsequent owner of the applicant's property shall be responsible for providing a replacement tree or shrub to the foliage owner. This time period may be extended by the Commission if evidence is provided by a certified arborist that a longer monitoring period is necessary for a specific type of tree or shrub. However, if the city arborist determines that culling, lacing, or trimming said tree or shrub will in all probability cause the tree or shrub to die, and the foliage owner chooses not to accept removal and replacement as an option, either in writing or in public testimony during the public hearing, then the applicant will not be responsible for providing a replacement tree or shrub to the foliage owner. The replacement foliage shall be provided in accordance with the specifications described in section VI-E (Commission Action) of these Guidelines. If the work is performed by the foliage owner, said foliage owner shall forfeit the right to replacement foliage if the trimmed tree dies. If a tree or shrub dies it is subject to removal pursuant to Section 8.24.060 (property maintenance) of the RPV Municipal.
  21. The selection of the type of replacement foliage shall be made by the foliage owner from an approved list of foliage types provided by the Director of Planning Building and Code Enforcement or approved by the City View Restoration arborist.
  22. No sooner than one year after the initial trimming is completed, pursuant to Section VI-J of the Guidelines (Commission Action), City Staff shall report to the Commission as to the adequacy of the maintenance schedule, as well as the foliage owners’ ability to maintain the foliage in compliance with these conditions of approval. The Commission shall consider the Staff report and determine if a public hearing to amend the conditions is necessary. If the Commission determines that a hearing is necessary, then a hearing will be held pursuant to Section VI-J of the View Restoration Guidelines and Procedures.
  23. The applicant shall, not later than 30 days after approval of this permit, present to the City, at least one itemized estimate to carry out the aforementioned work. Such estimate is to be supplied by a licensed landscape or licensed tree service contractor, acceptable to the City, which provides insurance certificates in a form acceptable to the City, and shall include all costs of cleanup and removal of debris and the cost if have an ISA certified tree trimmer or accredited arborist on site to perform or supervise the work being done. In addition, the applicant shall pay to the City an amount equal to the City accepted estimate and such funds shall be maintained in a City trust account until completion of work as verified by City Staff.
  24. The foliage owner shall select a contractor from the estimate(s) provided by the applicant or another licensed firm of their choice subject to approval by the City, to perform the required work. However, the foliage owners shall only be reimbursed for the amount of the lowest bid submitted by the applicant. If the foliage owners choose to do the required work, then the foliage owners shall not be compensated from the trust account and the amount in the trust account shall be refunded to the applicant.
  25. The applicant may reduce the scope of the trimming required by this Permit by giving the City and the foliage owner written notice of such decision within 30 days of this approval. The applicant shall deposit funds to the City in a trust account in an amount sufficient to cover the remaining work. However, trimming or removal of the vegetation that the applicant has chosen to eliminate would then require an entirely new View Restoration application and fee.
  26. The applicant may withdraw the view restoration request and the trust account funds if the applicant does so within five (5) days after the applicant sends the estimate required herein. In the event that the applicant withdraws the request in a timely manner, the foliage owners are not required to perform the work specified by this Permit and this Permit is of no further force and effect.
  27. The foliage owners shall, no later than 90 days after the Notice of Approval (First Notice) is mailed, complete the work to the extent required by this Permit and shall maintain the vegetation to a height that will not impair a view from another property in the future as specified in these Conditions of Approval. If any foliage owner herein does not complete the required work as specified within 90 days of the issuance of the Notice of Approval, then the City of Rancho Palos Verdes will authorize a bonded tree service to perform the work at the subject property and at the foliage owner's expense. In the event that the City is required to perform the work at the foliage owner's expense, the City shall reimburse the applicant from the City trust account not later than 30 days after the expiration of the time period stipulated above.
  28. Upon completion of the work, the foliage owner shall notify the City and shall submit a copy of a paid invoice showing that the work was performed. Upon submittal of the invoice and verification by City Staff of compliance, the City shall transmit the funds from the City trust account to the foliage owner not later than 30 days after receipt of the appropriate billing as verified by City Staff. If the paid invoice submitted by the foliage owner is for an amount less than the funds in the City's trust account, the foliage owner shall only be transmitted an amount equal to the actual cost of the trimming. In such situations, the balance of the trust account shall be refunded back to the applicant (within 30 days of receipt of the appropriate billing) or applied to the applicant's permit processing account, if that account contains a negative balance. If the paid invoice submitted by the foliage owner is for an amount that exceeds the funds in the City's trust account, the foliage owner shall only receive the funds from the City trust account and the foliage owner shall be responsible for paying the difference
  29. If the required work as specified herein is not completed within the stipulated time periods, then the City of Rancho Palos Verdes will utilize the City’s code enforcement process to authorize a bonded tree service to perform the work at the subject property at the foliage owner’s expense, and the applicant’s deposit will be refunded. In the event that the City is required to perform the work, the foliage owner will be billed for all City expenses incurred in enforcing the View Restoration order and a lien or assessment may be recorded against the foliage owner's property if the invoice is not paid.
  30. Subsequent to the trimming or removal of the foliage, the applicant may, at their discretion, document the restored view for future reference by submitting to the Director of Planning, Building and Code Enforcement, photographs of the restored view taken from the applicant's viewing area along with a "Documentation of Existing Foliage or View" form available at the Planning, Building & Code Enforcement Department.