Rancho Palos Verdes City Council
   

TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL

FROM: DIRECTOR OF PLANNING, BUILDING AND CODE ENFORCEMENT

DATE: MARCH 2, 2004

SUBJECT: VIEW RESTORATION PERMIT NO. 157 - APPEAL (APPELLANT/FOLIAGE OWNER: MR. YOSHIYA WATANABE, 15 AMBER SKY DRIVE, APPLICANT: MR. NAVEEN REDDY, 14 AMBER SKY DRIVE)

Project Coordinator: John Alvarez

RECOMMENDATION:

Adopt Resolution No. 2004-__; denying the appeal, thereby affirming the decision of the Planning Commission and approving View Restoration Permit No. 157 upon finding that all applicable findings have been correctly made and all provisions of Section 17.02.040 have been complied with.

EXECUTIVE SUMMARY

On December 11, 2003, the Planning Commission approved View Restoration Permit No. 157, thereby requiring foliage trimming and removal on three (3) properties to restore a view from an applicant’s property. One of the foliage owners, Mr. Yoshiya Watanabe, has appealed the Commission’s decision with regards to the trimming requirements for his property (15 Amber Sky Drive) and asserts that the Planning Commission decision should be overturned (see page 7).

Staff and the City Attorney have reviewed the points related in the appeal and have found no basis contained in Mr. Watanabe’sthat neither the appeal, nor uncovered any other information provided since the December 11, 2003 Planning Commission hearing, that would warrant altering the Planning Commission's original decision. Staff therefore recommends that the City Council dismiss deny the appeal, and affirm the Planning Commission's decision memorialized in PC Resolution No. 2003-64, attached hereto as Exhibit C.

BACKGROUND

After conducting a duly noticed public hearing, the Planning Commission approved View Restoration Permit No. 157 on December 11, 2003 thereby directing tree trimming on three (3) foliage owner properties to restore the view from 14 Amber Sky Drive (Reddy property). The appeal period deadline was extended to January 5, 2004 due to the a one-day holiday closure of City Hall during the holiday appeal period. On January 5, 2004, within the appeal period, Mr. Watanabe (property owner at 15 Amber Sky Drive) appealed the Commission's decision to the City Council. The two other foliage owners were not party to the appeal and have expressed to Staff that they are not contesting the PC’s Commission’s decision.

The appeal hearing is now before the City Council for consideration.

To allow more time for the Council to review the background materials of the appeal, the December 9, 2003 PC Staff Report, the December 11, 2003 PC excerpt minutes (the date the PC meeting), and the appeal letter were transmitted to the Council on February 19, 2004.

DISCUSSION

Planning Commission Decision

In considering the applicant’s request for view restoration, the Commission determined that five (5) trees located at 15 Amber Sky Drive, twelve (12) trees at 17 Amber Sky Drive and two (2) trees, with the possibility of one (1) Palm tree at 19 Amber Sky Drive significantly impair the view from the applicant's property located at 14 Amber Sky Drive. Accordingly, the Commission ordered the following trimming and removal:

PC Decision

15 Amber Sky Drive (Watanabe Property)

Five (5) Olive trees located at 15 Amber Sky Drive (appellant’s property) be trimmed by heavily lacing the tree crowns

17 Amber Sky Drive (Velken Property)

Combination of crown raising, crown reduction and removal of twelve (12) view impairing trees located at 17 Amber Sky Drive.

19 Amber Sky Drive

(Cook Property)

The two (2) Palm trees located at 19 Amber Sky Drive were ordered to be trimmed with the trimming for one (1) additional Palm tree deferred until the tree trimming requirements for the two Palm trees were completed. Thereafter, Staff is to re-evaluate the view and any view impact caused by the Palm tree. If the third Palm tree is found to significantly impair the view from 14 Amber Sky Drive, then the foliage owner shall trim the subject tree down to a 16-foot level (as measured from base) or to the level of the foliage owner’s (Cook) roofline (ridgeline), whichever is lower.

The above described action was directed by the Planning Commission after considering Staff’s analysis and recommendations contained in the December 9, 2003 Staff Report (attached), visiting the applicant’s property to ascertain the degree of view impairment (photos of the applicant’s impaired view taken in 2003 are attached to the December 9, 2003 PC Staff Report), and hearing public testimony including comments from all parties present at the meeting (attached excerpted minutes from the December 11, 2004 PC meeting) are attached.

A description of the applicant's view and viewing area is contained on page 3 of the attached Staff Report to the Planning Commission. Also contained in the attached Staff Report (Table 1) is a summary of Staff's original recommendation to the Commission. The Planning Commission’s formal decision is contained in attached PC Resolution 2003-64.

Appeal Issues

In the attached appeal letter, dated January 4, 2004, Mr. Watanabe states the reasons he believes that the Planning Commission was in error by approving View Restoration Permit No. 157.

As a reminderBecause, the appeal was filed by only one of the foliage owners, Mr. Yoshiya Watanabe, property owner at 15 Amber Sky Drive. Therefore, the appeal only addresses the Commission’s action on the work described above forwith respect to foliage removal and trimming at 15 Amber Sky Drive. The grounds of the appeal as noted in Mr. Watanabe’s letter of appeal dated January 4, 2004, are repeated below (in bold), followed by Staff's discussion of the appeal points.

1. "The Planning Commission failed to properly determine the scope of the view from 14 Amber Sky Drive."

Staff’s Response:

In the December 9, 2003 Staff Report to the Planning Commission (page 3), Staff identified the applicant’s view and the viewing area as suchfollows:

"The applicant’s primary viewing area, the living room, is oriented due south overlooking Catalina Island and the ocean. The view frame is characterized as aan ocean view extending on a 120° horizontal arc with Catalina Island to the center of the view frame and Del Cerro Park to the right of the view frame. "

The Commission determined that the view taken from the applicant’s living room is considered to be the applicant’s best and most important viewing area. The photograph shown in Exhibit "E" (attached) was taken next to the living room window.

The Commission followed the applicable procedures for determining the view from the applicant’s property.

2. "The Planning Commission improperly determined that the foliage on the appellant’s property ‘significantly impair a view’ from the applicant’s viewing area."

Staff’s Response:

The Planning Commission determined that the view from the applicant’s living room is significantly impaired by the combination of foliage found at 15, 17, and 19 Amber Sky Drive. The foliage located on the Watanabe property impairs the view of the Ocean. The Commission’s decision is consistent with the mandatory finding whichfinding of Municipal Code Section 17.02.040(C)(2)(c)(ii), which states:

"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 Commission considered Mr. Reddy’s request based on the combined effect of view-impairing foliage found at 15, 17, & 19 Amber Sky Drive. In addition, the degree of impairment was evaluated based on the position of all the foliage within the view frame. The appellant’s view impairing foliage is located at the right, center of the view frame.

For the foregoing reasons, the Planning Commission made the necessary findings in support of its conclusion that the view impact is significant.

  1. "The Planning Commission improperly determined that the removal or trimming of the foliage would ‘not cause an unreasonable infringement of the privacy of the occupants of the property on which the foliage is located’."

Staff’s Response:

The Planning Commission determined that the decision to trim the subject foliage at 15 Amber Sky Drive will not cause an unreasonable infringment of the privacy of the resident as because the rear yard Olive trees do not provide existing privacy to the appellant’s residence. The portions of the front yard tree crowns that impair the view do not provide privacy to the appellant’s residence as the view impairing foliage is above the roofline.

The rear yard of the appellant’s property faces to the west, away from the applicant’s property, and is not readily visible from Amber Sky Drive. Trimming or lacing of the foliage, as ordered by the Planning Commission, will not render the rear yard visible due to the layout of the appellant’s property. With respect to the trees in the front yard, the appellant has no expectation of privacy in the front yard area between the residence and the street.

4. "The applicant is estopped to complain about the foliage on the appellant’s property at this time due to the fact that the appellant was misled about the claimed view impairment at the time appellant purchased the house at 15 Amber Sky Drive."

Staff’s Response:

The applicant sought view restoration relief by applying for a view restoration permit. Section 17.02.040(C)(2)(a) of the RPVMC states "Any resident owning a residential structure with a view may file an application with the City for a view restoration permit." The Ordinance does not prohibit property owners from applying for a view restoration permit if they are not the original owners of a "view" property. Staff believes that the intent of the View Restoration Permit process is to allow homeowners, regardless of tenancy, the opportunity to seek and be granted a permit provided that the City makes all of the mandatory findings.

One of the findings of related importance is Section 17.02.040(C)(2)(c)(iv) of the RPVMC, which states "The foliage significantly impairing the view did not exist, as view impairing vegetation, when the lot from which the view is taken was created." The Planning Commission made the finding that "All all of the properties that are a part of this application were created in 1961 under Tract No. 25817 (Exhibit F). When the subject lots were created, the tract was stripped of all vegetation during the mass grading. Standard grading procedures require all vegetation to be stripped and removed Therefore the subject foliage did not exist beforecame into existence after the creation of the applicant's lot."

5. "Applicant’s delay of bringing an application exceeds any and all statutes of limitations which are applicable to enforcement of the View Restoration Code."

Staff’s Response:

RPVMC Section 17.02.040 contains no restriction or period during which view restoration permit applications must be filed, but instead allows view owners to apply for a view restoration permit at any time when views are disrupted. The ordinance is structured in this way in part because trees and other foliage will grow and change over time, and a tree that does not interfere with a view now may interfere with a view in the future if it is allowed to grow in an unfettered manner. As such, the application was not filed or processed in an untimely manner.Staff held a pre-application meeting between all parties in March 2003. On-going negotiations between applicant and the foliage owner located at 17 Amber Sky Drive occurred thereafter. Since the applicant and the foliage owners could not reach a private trimming agreement, the applicant formally submitted an application on May 14, 2003 with the understanding that the case would not be scheduled for public hearing until the City Council adopted the proposed View Restoration Guideline revisions. On July 1, 2003, the Guidelines were adopted and the case was scheduled for public hearing in November 2003 but was continued without discussion to the Planning Commission meeting on December 11, 2003.

Section IV (D) of the View Restoration Guidelines and Procedures requires that the City administratively withdraw incomplete permit applications after six (6) months from the date of view restoration submittal. However, at the time of the application submittal, Staff reviewed the application and deemed it complete. Furthermore, view restoration applications are not subject to the time limit provisions of the State’s Permit Streamlining Act because the view restoration permit applications are not development permits, as defined in State law. Therefore, no statutes of limitation restricted the City from processing the applicant’s permit request, View Restoration Application No. 157.

NEED CAROLS INPUT

  1. "The provisions of Section 17.02.040 of the City’s Development Code are preempted by the California Environmental Quality Act and related statues [sic]."
  2. Staff’s Response:

    The provisions of Section 17.02.040 of the City’s Development Code are not preempted by California Environmental Quality Act (CEQA) as the project or the restorative action approved by the City is considered categorically exempt. Pursuant to Section 15304 of the State CEQA GuidelinesCalifornia 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).

    Additionally, CEQA does not "preempt" the City’s exercise of its police powers, including the implementation of the provisions of RPVMC Section 17.02.040, but instead imposes a separate substantive and procedural review in certain circumstances that must be completed in conjunction with the City’s exercise of its police powers. This Application is exempt from CEQA for the previously stated reasons, and the City has complied with CEQA’s requirements.

    NEED CAROLS INPUT

  3. "The provisions of Section 17.02.040 and related Sections of the City’s Development Code, as applied to the appellant are so vague and ambiguous as to be unenforceable under the 14th Amendment of the United States Constitution."
  4. Staff’s Response:

    First, the appellant’s appeal alleges vagueness of the Municipal Code, but does not specify particular Municipal Code provisions believed to be vague. The appellants appeal letter provides no explanation in support of the assertion. Second, the California Court of Appeal, when considering a similar allegation, upheld provisions of Municipal Code Section 17.02.040 that were challenged on vagueness grounds. The court concluded in that case, Echevarrieta v. City of Rancho Palos Verdes, (2001) 86 Cal.App.4th 472, 483-84, that:

    "There is nothing unconstitutional about this delegation of broad discretionary power to the [View Restoration Commission] and the City."

    Id. at 485.

    Further, The appellant claims that the provisions of Section 17.02.040 and related Sections of the City’s Development Code are vague and ambiguous. Tthe provisions pertaining to the view ordinance are not vague and ambiguous because the ordinance defines views, viewing areas, and the foliage height restrictions. The ordinance also allows the City to restore a view by compelling a foliage owner to trim view-impairing foliage. The trimming requirement imposed by the Commission in this case, lacing, is further defined in Section IV (A)(2) of the View Restoration Guidelines and Procedures. The Planning Commission’s decision explicitly established the nature of the view and the degree of foliage impairment from the viewing area of the applicant’s residence, and the method of trimming required to restore the view.

    The Planning Commission’s considered the placement of the appellant’s foliage within the placement of the applicant’s view frame and appropriately prescribed a trimming method that would restore the view, while at the same time avoiding without adversely affecting impacts to the health of the appellant’s trees nor or to the aesthetic appearance of the tree crowns. Although the appellant believes that enforcement of the trimming is considered vague, the Commission specified that that the appellant’s foliage be heavily laced (Condition Nos. 15-19 of Exhibit "A", Resolution No. 2003-64). Heavily lacing laced means selectively pruning leaves and small branches so as to improve the visibility through the crown of the tree. As a general rule, removing 65-75% of the crown’s leaves and small branches improves the visibility through the tree.

    Based on the foregoing, staff believes that neither the ordinance nor the Planning Commission’s application of the ordinance in this case is vague or ambiguous.

    NEED CAROLS INPUT

  5. "The decision of the Planning Commission and the action recommended by the Planning Commission would constitute a taking of appellant’s property without due process of law as required by the 14th Amendment of the United States Constitution and any action thereunder would subject members of the Commission and any City officials attempting to enforce the decision of the Planning Commission to personal liability."
  6. Staff’s Response:

    The California Court of Appeal upheld Section 17.02.040 of the City’s Municipal Code against a taking challenge in Echevarrieta v. City of Rancho Palos Verdes, (2001) 86 Cal.App.4th 472, 479-81. The court concluded that: "while the City has imposed limitations on the height of preexisting foliage, it is a legitimate exercise of police power which does not rise to the level of a taking." Id. at 481. Further:

    "’traditional land-use regulations’ such as the imposition of minimal building setbacks, parking and lighting conditions, landscaping requirements, and other design conditions ‘have long been held to be valid exercises of the city’s traditional police power, and do not amount to a taking merely because they might incidentally restrict a use, diminish the value, or impose a cost in connection with the property."

    Id. (citations omitted).

    Further, tThe appellant and the property owners located at 17 and 19 Amber Sky Drive were early participants in an informal dispute resolution with the applicant and were later duly notified of the Planning Commission hearing, and their appeal rights. Appellant has been provided notice and several opportunities to be heard, although the appellant did not appear at the December 11, 2003 meeting of the Planning Commission, and did not submit written comments regarding the application.

    Therefore, the appellants due process rights were not violated. As a matter of record, the appellant did not appear at the Planning Commission meeting on December 11, 2003.

    NEED CAROLS INPUT

  7. "The Planning Commission did not consider all available evidence in reaching their decision and that new evidence will be presented."

Staff’s Response:

Staff believes that all available evidence was considered during the public hearing. The Commission made all the mandatory findings set forth in Section V of the View Restoration Guidelines and Procedures in order to approve View Restoration Permit No. 157. The mandatory findings made by the Planning Commission are contained in Resolution 2003-64 (attached). Further, although provided with the opportunity to comment on the matter in writing and at the public hearing, the appellant did not exercise this opportunity until the filing of the appeal letter.

Finally, the appellant requested information regarding rules relating to presentation of evidence on the appeal. Municipal Code Section 17.02.040 (C)(2)(g) provides specific provisions for appeals of view restoration permits, to wit:

"At the city council meeting, oral testimony shall be limited to five minutes in length for each of the parties whose properties are affected by the decision and two minutes per person for other individuals. Oral testimony shall be limited to the issues raised in the written appeal."

Municipal Code Section 17.80.070 F, relating to appeals in general, is also instructive on this matter, and states:

"De Novo Review. The city council appeal hearing is not limited to consideration of the materials presented to the planning commission. Any matter or evidence relating to the action on the application, regardless of the specific issue appealed, may be reviewed by the city council at the appeal hearing."

The appellant has been made aware of these provisions.

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. 157, 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. Deny 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. Watanabe dated January 5, 2004

Exhibit "B" - Planning Commission Staff Report dated December 2003

Exhibit "C" - P.C. Resolution No. 2003-64

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