Rancho Palos Verdes City Council
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JULY 20, 2004

TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL

FROM: DIRECTOR OF PLANNING, BUILDING AND CODE ENFORCEMENT

DATE: JULY 20, 2004

SUBJECT: VIEW RESTORATION PERMIT NO. 161 - APPEAL (APPLICANT: ALLEN AND VICTORIA YOUNG, 7256 BERRY HILL DRIVE, MARC AND JULIE VAN KLOOSTER, 7264 BERRY HILL DRIVE; FOLIAGE OWNER: MICHAEL AND BARBARA O’SULLIVAN, 30466 VIA CAMBRON)

Project Coordinator: Trayci Nelson

RECOMMENDATION:

Adopt Resolution No. 04- ; affirming the decision of the Planning Commission and approving View Restoration Permit No. 161 upon finding that all applicable findings have been correctly made and all provisions of Section 17.02.040(C)(2) have been complied with.

BACKGROUND

After conducting a duly noted public hearing, the Planning Commission approved View Restoration Permit No. 161 on April 27, 2004. Specifically, the Commission directed that two trees located in the front yard at 30466 Via Cambron (O’Sullivan Property - appellant) be trimmed/removed so as to restore a view from 7256 and 7264 Berry Hill Drive (Young and Van Klooster properties). The Conditions of Approval memorializing the PC's decision were distributed to the interested parties on April 28, 2004. On May 12, 2004, within the fifteen-day appeal period, Mr. And Mrs. O’Sullivan 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 found that two trees, one Canary Island Pine tree and one Eucalyptus tree, planted in the front yard at the property located at 30466 Via Cambron Drive (O’Sullivan property) significantly impair the applicants’ view. As a result, the Commission ordered that the Canary Island Pine tree either be removed, with the consent of the foliage owner, or trimmed to the height of the Van Klooster building pad, to restore the applicants’ view. The Commission also ordered that the Eucalyptus tree either be removed, with the consent of the foliage owner, or trimmed to the height of the Young building pad, to restore the applicants’ view (Photo Exhibit "D" from April 27, 2004 Staff Report). The Commission also ordered that three (3) replacement trees be provided should the foliage owner opt to remove the two trees.

A description of the applicants’ views and viewing areas is contained on page two of the attached Staff Report to the Planning Commission, dated April 27, 2004. Also contained in the attached Staff Report (page 4) is a summary of Staff's recommendation to the Commission. A summary of the Commission’s decision is contained in attached PC Resolution 2004-18. In addition, the minutes of the April 37, 2004 Planning Commission meeting are attached.

Appeal Issues

The main grounds of the appeal, as discussed in the letter of appeal dated May 12, 2004, (attached), are repeated below (in bold), followed by staff's discussion of the appeal points.

1. "…..We hate to lose any tree, but strongly object to the adoption of the staff recommendation which requires removing our pine tree, but does not replace it with any foliage to screen the Van Klooster deck. Further exposing this deck will certainly diminish the neighborhood compatibility which the VR ordinance is intended to insure".

The intent of the View Restoration and Preservation Ordinance is to restore and preserve views. There is no discussion of neighborhood compatibility in the Ordinance. The conditions of approval for VRP 161, as approved by the Planning Commission, allow the foliage owner the option to lower the trees or have the trees removed and replaced with three 24-inch box trees of their choosing. The applicant’s deck, which Staff believes to be a legal and permitted structure, is visible from Via Cambron and elsewhere in the neighborhood. The ordinance does not require that replacement foliage be provided specifically to screen an existing structure from a foliage owner’s property. Therefore, the Planning Commission did not require that such screening foliage be provided. However, if the foliage owners select the option of removing the tree, three replacement trees are to be provided.

  1. "We respectively submit that commission’s decision was based on inaccurate information from the View Restoration Staff. Specifically, stated that the deck is legal and that both the deck height and lot coverage, in addition to the area, were considered in the 2001 Code Enforcement Action which was performed at our request……"

Staff’s comments regarding the matter of the deck can be reviewed on pages two and three of the April 27, 2004 Planning Commission Minutes (attached). Essentially, as stated on pages two and three of the April 27, 2004 Staff Report under the heading, Deck Issue, Staff stated the following:

During the pre-application meeting discussions, the O’Sullivan’s raised the issue of the deck located on the Van Klooster property which they believed was built larger than was approved by Site Plan review No. 1142. The deck, which cantilevers over the edge of the Van Klooster property, was built by the previous property owner (Mr. Nazemi) in 1980. In 2001, after review and investigation by Jan Neth, Sr. Code Enforcement officer, the City of RPV Code Enforcement Department and Director of Planning and Building and Safety, concluded the following:

"……Although the approved Site Plan Review did not indicate square footage for the deck project, and the County’s building permit indicated the deck at 780 square feet, the inspection revealed that the deck square footage matched that of the approved stamped plans by the Planning Department. Since the deck received final inspection on August 8, 1980, by the Los Angeles County building inspector, it appears that an error was made, listing incorrect square footage, during the issuance of the building permit( Exhibit ___)."

Thus, the deck as built, is permitted. Additionally, there is no nexus between the issue of the view impairment and the deck.

In summary, based on an investigation conducted in 2001 by Staff in response to allegations made by the O’Sullivans that the Van Kloosters’ deck was built larger than what was approved, Staff concluded that the size of the subject deck was in compliance with the Planning approval (SPR No. 1142) issued by the City on October 4, 1979. Staff came to this conclusion by measuring the area of the current deck and comparing the area with the size of the deck shown on the approved plans. The square footage of the existing deck matches the square footage of the 1979 approved plans. As a result, Staff concluded that the deck was built as approved and that a reference to a different square footage on the LA County issued building permit is in error.

In addition, the size of the deck does not bear upon the applicable findings of fact that need to be made to grant the View Restoration Permit. Therefore, the Planning Commission was able to make the appropriate findings notwithstanding the issues raised by the appellant about the Van Klooster’s deck.

3. "…We also object that during the hearing, we were not given the opportunity for rebuttals as is offered in the VR Guidelines (Attachment #1 – see IV APPLICATION PROCEDURES, Paragraph E-6.f)"

Page 9 of the View Restoration and Preservation Guidelines states "Normally, the Applicant(s) and foliage owner(s)will be limited to a 5 minute presentation and a 3 minute rebuttal (if requested)". Although the appellant was not offered the optional rebuttal, the appellant did not object or request a rebuttal when the Planning Commission Chairman closed the public hearing.

4. "…Nexus between the trees and deck…….The Planning Commissioners, having visited our property, all seemed to recognize the problems this deck represents (one commissioner said …."ugly would not be too harsh a term" and seemed sympathetic to structuring a solution that would be fair to all concerned……."

As noted on page seven and eight of the attached April 27th Planning Commission minutes, although the Commission, individually and collectively, were sympathetic to the appellant’s concerns about the neighbor’s deck, all agreed that there appeared to be no nexus between the Van Klooster’s deck and the issue of whether the applicable findings could be made to grant the applicants’ View Restoration Permit. However, in an attempt to address the appellant’s concerns about the visibility of the deck, replacement foliage was ordered to be provided, should the O’Sullivans opt to remove the trees instead of trim them.

5. "We strongly urge that the city council direct the planning staff to conduct a thorough code enforcement investigation and bring the Van Klooster deck into compliance with the 1980 building code, approved plans, and/or the original building permit."

If the Council desires, Staff can conduct a second investigation into the legality of the deck. However, a thorough review of the City’s file concerning the deck demonstrates that the square footage of the deck matches the approved plan. Accordingly, staff does not recommend further investigation of this matter. Moreover, even if there were a violation regarding the deck, Staff would pursue the issue as a separate code enforcement matter to correct the violation, and not as a part of this View Restoration proceeding so that it would not have any bearing on whether the findings for approval of the View Restoration Permit could be made.

CONCLUSION

Staff has found no basis contained in the O’Sullivan's appeal, nor uncovered any other information since the April 27, 2004 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. 2004-18.

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. 161, 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" - City Council Resolution No. ______

Exhibit "B" - Letter of appeal from Mr. and Mrs. O’Sullivan dated May 12, 2004

Exhibit "C" - Planning Commission Staff Report of April 27, 2004 with attachments

Exhibit "D" - PC. Resolution No. 2004-18

Exhibit "E" - Photo Exhibit from Applicant’s View Area

Exhibit "F" - Site Map / Topography Map

Exhibit "G" - View Restoration Guidelines

Exhibit "H" - Excerpted Planning Commission Minutes, April 27, 2004

Exhibit "I" - Additional file correspondence received July 2, 2004 (O’Sullivan and Young)

RESOLUTION NO. 2004-__

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES APPROVING VIEW RESTORATION PERMIT NO. 161 TO TRIM AND/OR REMOVE FOLIAGE AT 30466 VIA CAMBRON.

WHEREAS, on February 6, 2003, Mr. and Mrs. Young, owner of property located at 7256 Berry Hill Drive and Mr. and Mrs. Van Klooster, owner of property located at 7264 Berry Hill Drive (herein "the applicants"), 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. and Mrs. O’Sullivan, at 30466 Via Cambron (herein "the foliage owner"), in the City of Rancho Palos Verdes ("City"); and,

WHEREAS, notice of the Planning Commission ("Commission") hearing was mailed to the applicants and the foliage owner on February 4, 2004; and,

WHEREAS, on March 9, 2004, the Commission held a duly noticed public hearing to consider the request, at which time, the public hearing was continued to April 27, 2004; and,

WHEREAS, on April 27, 2004, 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, after all interested parties were given an opportunity to be heard and present evidence, the Planning Commission adopted P.C. Resolution No. 2004-18, thereby conditionally approving View Restoration Permit No. 161; and,

WHEREAS, on May 12, 2004, within the 15 day appeal period, Mr. and Mrs. Michael O’Sullivan (foliage owners) appealed the April 27, 2004 Planning Commission decision to the City Council; and,

WHEREAS, on July 20, 2004, the City Council held a duly noticed public hearing to consider the appeal, at which time, all interested parties were given an opportunity to be heard and present evidence.

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

Section 1: The applicants at 7256 and 7264 Berry Hill Drive have a view, as defined by Section 17.02.040 of the City’s Development Code, of the ocean and Catalina Island.

Section 2: The applicants’ viewing area, as defined by Section 17.02.040 of the City’s Development Code, from the Van Klooster residence, is taken from the living room, family room, and outdoor patio area. The view is the same from each location. From the Young residence, the view is taken from the living room, dining room, and outdoor patio area. The view is the same from each location.

Section 3: The applicants have a view that is significantly impaired by two (2) trees on property located at 30466 Via Cambron.

Section 4: On March 10, 2003, all parties, including City Staff attended a pre-application meeting in an attempt to resolve the conflict. Thus, all parties have participated in the required pre-application process and have completed the early neighbor consultation process.

Section 5: Based on evidence provided by the applicants, the subject foliage at 30466 Via Cambron significantly impairs the applicants’ 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 applicants’ viewing area.

Section 6: The subject property is located less than one thousand (1,000) feet from the applicants’ properties as the foliage owner's property abuts both applicants' properties.

Section 7: The applicants' and the foliage owner's properties, Lots 16, 37 and 38, of tract 26012, were created in 1961. According to the soils report prepared by Pacific Soils Engineering, Inc., the lots in this area were created using mass grading techniques that involve the removal of all existing vegetation to create the building pads. The report indicates, "All vegetation and debris shall be removed and disposed off the site". Therefore, the subject foliage did not exist as view impairing foliage when the applicants’ lots were created.

Section 8: Trimming the foliage as recommended by Staff, will not cause an unreasonable infringement on the privacy of the foliage owner in that the view impairing trees do not currently provide privacy to the foliage owner. Both trees are located in the front yard area of the foliage owner’s residence.

Section 9: Trimming and/or removing the subject foliage as identified in the attached Conditions of Approval (Exhibit "A"), is necessary in order to restore the applicants' views.

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 applicants' 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: Based on the foregoing information, and on the information and findings included in the Staff report and evidence presented at the public hearing, the Planning Commission hereby orders the trimming and/or removal of foliage at 30466 Via Cambron in order to restore the view at 7256 and 7264 Berry Hill Drive, as provided in, and subject to, the conditions outlined in the attached Exhibit "A".

Section 12: The time within which the judicial review of the decision reflected in this Resolution, if available, must be sought is governed by Section 1094.6 of the California Code of Civil Procedure and other applicable short periods of limitation.

Section 13: For the foregoing reasons and based on information and findings contained in the Staff Reports, minutes, and records of the proceedings, the Planning Commission hereby approved View Restoration Permit No. 161 subject to the Conditions of Approval contained in the attached Exhibit "A", which are necessary to protect the public health, safety and welfare.

PASSED, APPROVED, AND ADOPTED on the 20th day of July 2004.

_______________________________

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. _____ was duly and regularly passed and adopted by the said City Council at a regular meeting held on July 20, 2004.

_______________________

City Clerk

EXHIBIT "A"

CONDITIONS OF APPROVAL

VIEW RESTORATION PERMIT NO. 161

  1. Pine tree:

      1. Option 1: Reduce the crown of the tree to the level of the Van Klooster building pad. After the initial trimming, maintenance trimming shall occur on an annual basis beginning 1 year after the initial trimming date, or when the tree reaches a level that is 2 feet above the Van Klooster building pad, whichever is sooner.

        2. Or

      2. Option 2: Since option 1 will likely kill the tree; remove the tree with the foliage owner’s written consent. Should the foliage owner choose to remove said tree, then two (2) replacement trees, no larger than a twenty-four inch box size, selected by the foliage owner and approved by the View Restoration Arborist, shall be provided by the applicant.

  2. Eucalyptus tree:

      1. Option 1: Reduce the crown of the tree to the level of the Young building pad, which is approximately 3 to 5 feet. The tree should also be shaped and laced. After the initial trimming, maintenance trimming shall occur on a biannual basis beginning 6 months after the initial trimming date, or when the tree reaches a level that is 2 feet above the Young building pad, whichever is sooner.

        2. Or

      2. Option 2: Remove the tree with the foliage owner’s written consent. Should the foliage owner choose to remove said tree, then one (1) replacement tree, no larger than a twenty-four inch box size, selected by the foliage owner and approved by the View Restoration Arborist, shall be provided by the applicant.

  3. Upon completion of said trimming, if additional foliage on the subject property 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 applicants' properties.

  4. Since the tree levels described in Conditions 1 and 2 are approximates, adjustments to the trimming levels may be made by Staff during the initial trimming to ensure that the applicants’ view is restored. Once the trimming is complete, the restored view shall be documented and subsequent growth will be allowed to grow up as described in Conditions 1 and 2.

  5. The foliage owner shall be responsible to maintain the foliage in such a manner as to not significantly impair the applicants' 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.

  6. 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 applicants or any subsequent owner of the applicants' properties 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, since the city arborist has determined that trimming the Pine tree as recommended will in all probability cause the tree to die, and if 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 applicants 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 Code.

  7. 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.

  8. 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.

  9. The applicants 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 applicants 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.

  10. The foliage owner shall select a contractor from the estimate(s) provided by the applicants 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 applicants. 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 applicants.

  11. The applicants 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 applicants 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 applicants have chosen to eliminate would then require an entirely new View Restoration application and fee.

  12. The applicants may withdraw the view restoration request and the trust account funds if the applicants do so within five (5) days after the applicants send the estimate required herein. In the event that the applicants withdraw 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.

  13. The foliage owner 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.

  14. 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 applicants (within 30 days of receipt of the appropriate billing) or applied to the applicants' 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

  15. 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 applicants' 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.

  16. Subsequent to the trimming or removal of the foliage, the applicants 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.