Rancho Palos Verdes City Council
   

SEPTEMBER 7, 2004 GEOTECHNICAL BOARD OF APPEALS SEPTEMBER 7, 2004 GEOTECHNICAL BOARD OF APPEALS

TO: HONORABLE MAYOR AND COUNCILMEMBERS

FROM: DIRECTOR OF PLANNING, BUILDING & CODE ENFORCEMENT

DATE: SEPTEMBER 7, 2004

SUBJECT: GEOTECHNICAL BOARD OF APPEALS

Staff Coordinator: Kit Fox, aicp, Senior Planner

RECOMMENDATION

1) Adopt Urgency Ordinance No. ___U, adopting amendments to Chapter 2.40 (Geotechnical Board of Appeals) of the Rancho Palos Verdes Municipal Code, and declaring the urgency thereof; 2) introduce Ordinance No. ___, adopting amendments to Chapter 2.40 (Geotechnical Board of Appeals) of the Rancho Palos Verdes Municipal Code; and 3) appoint a Geotechnical Board of Appeals, pursuant to Chapter 2.40 of the Rancho Palos Verdes Municipal Code.

EXECUTIVE SUMMARY

The Geotechnical Board of Appeals, originally created by the City Council in 1986 but effectively disbanded for the past several years, is tasked with hearing appeals arising from disputes regarding the geological and/or geotechnical safety of building sites and the need for geologic and/or geotechnical reports prior to the development of such sites. Such an appeal has been recently filed, so it is necessary to revise the current Municipal Code provisions establishing the Board that are outdated and no longer applicable, and to appoint a new Geotechnical Board of Appeals to hear this pending appeal.

BACKGROUND

The Geotechnical Board of Appeals was originally established by the adoption of Ordinance No. 210 (codified as Chapter 2.40 of the Rancho Palos Verdes Municipal Code) on August 15, 1986. The purpose of the Board was "to hear appeals from the determinations of the City Engineer as to whether or not, by reason of geologic or soils conditions, a building site or proposed grading work is unsafe, or a geologic or soils report is required before the safety of such site or work can be determined." The first Board was appointed by the City Council on January 19, 1987, consisting of Perry Ehlig, Bing Yen, Art Keene, Monte Ray and Joe Montagna. However, Staff has found no evidence that the Board has met or conducted any hearings for at least the past 10 to 15 years.

Recently, an appeal was filed pursuant to Municipal Code Section 2.40.070, involving an application for a new home on a bluff-top lot. The Cityís geotechnical consultant conceptually approved the geology and geotechnical reports for the project. However, a neighbor hired a geotechnical engineer to review these reports, and he concluded that the project is infeasible and the property is unsuitable for development. The neighbor has appealed the Cityís conceptual approval, so the Geotechnical Board of Appeals must review and resolve this matter. However, since there is no existing Board and many provisions to the existing Code language are outdated and no longer applicable, Staff has agendized this matter so that Code may be amended, a new Board may be appointed and this appeal heard.

DISCUSSION

Revisions to Chapter 2.40 (Geotechnical Board of Appeals)

Staffís proposed changes to Chapter 2.40 are summarized as follows and in the attached underline/strikeout version of the proposed text of the chapter:

Section

Summary of Major Revisions

2.40.010

The Board is given the added authority to resolve disputes between two or more geotechnical engineers and/or geologists about geologic conditions on a site and/or the actions necessary to address these conditions.

2.40.020

The composition of the Board is changed to three members rather than five (including two alternates), although the City Council retains the right to appoint alternates if a regular member is disqualified or unable to participate in a particular case.

2.40.030

Only one regular meeting is required per calendar year rather than monthly meetings. Otherwise, special meetings may be called by the chairperson or a majority of the Board on an as-needed basis.

2.40.040

The Director of Planning, Building and Code Enforcement is designated as the secretary to the Board, rather than the City Engineer.

2.40.050

Compensation for Board members is revised to reflect current prevailing rates for these types of work. Each Board member shall execute a professional services agreement with the City specifying his or her rate of compensation.

2.40.060

A quorum of the Board is redefined as two members.

2.40.070

The filing fee for the appeal is a trust deposit in an amount to be determined by Staff, as provided for in the Cityís existing fee schedule. The hearing date to begin the appeal is set at no more than ninety (90) days from the date of filing, rather than forty (40) days. In addition, notice of the appeal hearing is increased from five (5) days prior to the hearing to ten (10) days.

Appointment of Geotechnical Board of Appeals

Staff has identified three (3) candidates and two (2) alternates for appointment to the Geotechnical Board of Appeals (see attached resumes and fee schedules). All of these candidates appear to be qualified to serve on the Board. Municipal Code Section 2.40.020 calls for three regular members, with a mix of two (2) engineering geologists and one (1) geotechnical engineer. As such, Staff recommends the appointment of the following individuals to the Geotechnical Board of Appeals:

Name

Title

Firm

Role

Mark McLarty

Engineering Geologist

AMEC Earth & Environmental

Member

Brian Constant

Geotechnical Engineer

GeoLogic Associates

Member

Pat Jenks

Engineering Geologist

GMU Geotechnical Consultants

Member

Bob Dickey

Engineering Geologist

GeoLogic Associates

Alternate

Greg Silver

Geotechnical Engineer

GMU Geotechnical Consultants

Alternate

ADDITIONAL INFORMATION

The interested parties to the pending appeal have been advised of the City Councilís consideration of this matter, as have Staffís recommended candidates for appointment to the Geotechnical Board of Appeals.

FISCAL IMPACT

The cost of the appeal procedure under Municipal Code Section 2.40.070 is wholly borne by the appellant through the payment of a trust deposit in an amount sufficient to cover the full cost of having the Board review the disputed decision. As such, there is no fiscal impact to the City in appointing a Geotechnical Board of Appeals.

CONCLUSION

Staff recommends that the City Council: 1) adopt Urgency Ordinance No. ___U, adopting amendments to Chapter 2.40 (Geotechnical Board of Appeals) of the Rancho Palos Verdes Municipal Code, and declaring the urgency thereof; 2) introduce Ordinance No. ___, adopting amendments to Chapter 2.40 (Geotechnical Board of Appeals) of the Rancho Palos Verdes Municipal Code; and 3) appoint a Geotechnical Board of Appeals, pursuant to Chapter 2.40 of the Rancho Palos Verdes Municipal Code.

ALTERNATIVES

In addition to Staffís recommendation, the following alternatives are available for the City Councilís consideration:

1. Direct Staff to revise the draft Ordinance(s) for consideration at a future meeting.

2. Direct Staff to identify different and/or additional candidates for appointment to the Geotechnical Board of Appeals.

Respectfully submitted:

Joel Rojas, aicp

Director of Planning, Building

and Code Enforcement

Reviewed by:

Les Evans

City Manager

Attachments:

Draft Ordinance No. ___U

Draft Ordinance No. ___

Underline/strikeout version of proposed revisions to Chapter 2.40

Candidate resumes and fee schedules

M:\Geotechnical Board of Appeals\20040907_StaffRpt_CC.doc

ORDINANCE NO. ___U

AN ORDINANCE OF THE CITY OF RANCHO PALOS VERDES ADOPTING AMENDMENTS TO CHAPTER 2.40 (GEOTECHNICAL BOARD OF APPEALS) OF THE RANCHO PALOS VERDES MUNICIPAL CODE, AND DECLARING THE URGENCY THEREOF

WHEREAS, on August 15, 1986, the City Council adopted Ordinance No. 210, thereby establishing a Geotechnical Board of Appeals for the purpose of hearing appeals from the determinations of the City Engineer as to whether or not, by reason of geologic or soils conditions, a building site or proposed grading work is unsafe, or a geologic or soils report is required before the safety of such site or work can be determined; and,

WHEREAS, on September 2, 1986, the City Council adopted Resolution No. 86-57 establishing a $1,100 fee (trust deposit) for appeals to the Board; and,

WHEREAS, on January 19, 1987, the City Council appointed the first Geotechnical Board of Appeals to 3-year terms and subsequently re-appointed the Board members to 3-year terms on February 20, 1990; and,

WHEREAS, there is no record in City files of Board Minutes, Agendas or Staff reports, nor has there been any other reference to the Board in City files since December 18, 1990, when the late Dr. Perry Ehlig was reappointed as Board chairman; and,

WHEREAS, the appeal fee established by Resolution No. 86-57 has not appeared in any City fee schedule since July 7, 1992; and,

WHEREAS, on August 17, 2004, the City received a timely appeal of the City geotechnical consultantís conceptual approval of the geology and geotechnical reports for a new home on a bluff-top lot in the Lunada Pointe neighborhood, pursuant to the provisions of Ordinance No. 210, as codified in Chapter 2.40 of the Rancho Palos Verdes Municipal Code; and,

WHEREAS, although the Geotechnical Board of Appeals has been disbanded, in effect if not in fact, it is necessary to revise the provisions of Chapter 2.40 of the Rancho Palos Verdes Municipal Code that area outdated and no longer applicable so that a new Board may be appointed to hear this pending appeal.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES DOES ORDAIN AS FOLLOWS:

Section 1: Chapter 2.40 of Title 2 of the Rancho Palos Verdes Municipal Code is hereby amended to read as follows:

Chapter 2.40

GEOTECHNICAL BOARD OF APPEALS

Sections:

2.40.010 Created.

2.40.020 Members.

2.40.030 Meetings.

2.40.040 Record of Board Actions.

2.40.050 Compensation.

2.40.060 Quorum.

2.40.070 Procedure.

2.40.010 Created.

A geotechnical board of appeals is created and established to hear appeals from the determinations of the city engineer or the city geologist as to whether or not, by reason of geologic or soils conditions, a building site or proposed grading work is safe or unsafe; a geologic or soils report is required before the safety of such site or work can be determined, or to resolve a dispute between two or more geotechnical engineers or geologists about the geologic conditions that are present on a particular site or the actions that a project applicant must take to address the site conditions as part of the development of the proposed project. Such geotechnical board of appeals is hereinafter in this chapter referred to as the board. The board shall serve as a board of review of the adequacy of geological and soils reports and shall provide for interpretations of data, opinions, conclusions or any one or more thereof contained in such reports. As an alternative to the process established by this chapter, the City Council may appoint a panel of geotechnical experts to address significant and ongoing geologic issues that affect just a particular property.

2.40.020 Members.

The board shall consist of three members who shall be appointed by a majority of the entire city council and who shall serve at the pleasure of the city council. Two of the members shall be qualified by education, state registration, training, experience and prominence in the field of engineering geology. One member shall be qualified by education and state registration as a civil engineer, and by training, experience and prominence in the field of soils engineering. The term of office for each board member is four years, and thereafter until a qualified successor has been appointed by the city council. The city council also may appoint one or more alternate members from each of the aforementioned disciplines. Should any vacancy exist on the board, an appointment shall be made in like manner for the unexpired portion of the term.

2.40.030 Meetings.

The board shall hold at least one regular meeting during each calendar year at such time and place as is designated in the rules and regulations of the board. Special meetings may be called by the chairperson or by a majority of the board. If any regular member is absent from any meeting or, by reason of disqualification or otherwise, does not participate in a particular case, the alternate member shall serve in his or her place at such meeting and in such case shall be deemed a regular member.

2.40.040 Record of Board Actions.

The director of planning, building, and code enforcement, or his or her designee, shall act as the secretary of the board. The board may adopt rules and regulations for the transaction of its business and shall keep a record of all its resolutions, actions, findings and determinations. Minutes, resolutions, and official records shall be filed with the city clerk.

2.40.050 Compensation.

Each member of the board shall receive compensation to review reports that have been prepared regarding particular projects and to attend meetings of the board at the hourly rate that said member typically charges to perform similar work for its clients, which shall be set forth as an exhibit to the board memberís agreement with the city. The rates to perform work as a board member shall be within a reasonable range of rates that are typically charged by other experts in the particular discipline. Board members shall be reimbursed for transportation and meals pursuant to the same policy guidelines that are applicable to city employees. Invoices for work performed and allowable expenditures shall be submitted monthly for the preceding month and shall be supported by adequate documentation, as determined by the director of finance or his or her designee. Undisputed invoices shall be paid within thirty calendar days of receipt.

2.40.060 Quorum.

A quorum shall consist of two members of the board. A majority vote of the members of the board shall be required for board action.

2.40.070 Procedure.

A. Appeal. An appeal may be filed by any person dissatisfied with a decision or decisions of the city engineer or city geologist as to whether or not, by reason of geologic or soils conditions, a building site or grading work is safe or unsafe; a geologic or soils report is required before the safety of such site or work can be determined, or to resolve a dispute between two or more geotechnical engineers or geologists about the geologic conditions that are present on a particular site or the actions that a project applicant must take to address the site conditions as part of the development of the proposed project. Such appeal shall be filed in writing with the secretary of the board within thirty days after the date of the city engineerís or city geologistís decision. At the time of filing the appeal, the appellant shall pay the filing fee established by resolution of the city council and shall deposit funds to be held in trust by the city, as estimated by city staff, to pay for the full cost of having the board review the disputed decision.

B. The form and notice of the appeal shall include the name and address of appellant, the street address or legal description and location of the premises covered by the appeal, and a statement of the grounds of the appeal or how there is an error in the decision being appealed.

C. Hearing. Upon accepting a notice of a complete appeal, the secretary of the board shall set the matter for consideration before the board not more than ninety days after the acceptance of the notice of appeal. The secretary shall give notice in writing to the appellant and any affected party not less than ten days prior to the hearing. At the meeting on appeal, the board shall hear the appellant and any affected party and shall consider the testimony and any other written evidence, which in its opinion is material. The city engineer or city geologist or his or her authorized representative shall attend said meeting to explain the basis for the decision being appealed.

D. Decision. Based upon the evidence presented at the hearing, the board shall affirm, reverse or modify the disputed decision. Said decision shall be rendered within thirty days following the last meeting at which the board considered the appeal. Within ten days after the decision of the board is rendered, the secretary shall notify the appellant and any other affected party of the decision."

Section 2: After the effective date of this Ordinance, it shall apply to the review of geology and/or geotechnical engineering reports for any project or site, and any subsequent or pending development applications, that have not been acted upon by the City as of the effective date of this Ordinance.

Section 3: The Geotechnical Board of Appeals was originally established by the City Council in August 1986. Its first members were initially appointed in January 1987 and reappointed in February 1990. In December 1990, the City Council reappointed the late Dr. Perry Ehlig as Board chairman. However, since that time there is no record of any further action by or regarding the Board in the Cityís files, and many of the original Board members have retired, moved or died in the past fourteen years. As such, the Geotechnical Board of Appeals has been disbanded, in effect if not in fact. Nevertheless, a timely appeal to the Board has been recently filed with respect to the City geotechnical consultantís conceptual approval of the geology and geotechnical reports for a new home on a bluff-top lot in the Lunada Pointe neighborhood. In order to consider this appeal in a timely manner, it is necessary to appoint a new Geotechnical Board of Appeals immediately. It is also necessary to revise certain provisions of Chapter 2.40 of the Rancho Palos Verdes Municipal Code that are outdated and no longer applicable so that the appeal may be heard in a timely manner that protects the rights of both the project applicant and the appellant. Therefore, this ordinance is necessary for the public health, safety and welfare and shall take effect immediately upon adoption as an urgency ordinance.

Section 4: The City Clerk shall certify to the adoption of this Ordinance and shall cause the same to be posted in the manner prescribed by law.

PASSED, APPROVED AND ADOPTED THIS 7TH DAY OF SEPTEMBER 2004.

_________________________________

MAYOR

ATTEST:

____________________________

CITY CLERK

STATE OF CALIFORNIA )

COUNTY OF LOS ANGELES )ss

CITY OF RANCHO PALOS VERDES )

I, JO PURCELL, City Clerk of the City of Rancho Palos Verdes, do hereby certify that the whole number of members of the City Council of said City is five; the foregoing Urgency Ordinance No. ___U was duly and regularly adopted by the City Council of said City at a regular meeting thereof held on September 7, 2004, and that the same was passed and adopted by the following roll call vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

__________________________________

CITY CLERK

M:\Geotechnical Board of Appeals\20040907_UrgencyOrdinance.doc

ORDINANCE NO. ___

AN ORDINANCE OF THE CITY OF RANCHO PALOS VERDES ADOPTING AMENDMENTS TO CHAPTER 2.40 (GEOTECHNICAL BOARD OF APPEALS) OF THE RANCHO PALOS VERDES MUNICIPAL CODE

WHEREAS, on August 15, 1986, the City Council adopted Ordinance No. 210, thereby establishing a Geotechnical Board of Appeals for the purpose of hearing appeals from the determinations of the City Engineer as to whether or not, by reason of geologic or soils conditions, a building site or proposed grading work is unsafe, or a geologic or soils report is required before the safety of such site or work can be determined; and,

WHEREAS, on September 2, 1986, the City Council adopted Resolution No. 86-57 establishing a $1,100 fee (trust deposit) for appeals to the Board; and,

WHEREAS, on January 19, 1987, the City Council appointed the first Geotechnical Board of Appeals to 3-year terms and subsequently re-appointed the Board members to 3-year terms on February 20, 1990; and,

WHEREAS, there is no record in City files of Board Minutes, Agendas or Staff reports, nor has there been any other reference to the Board in City files since December 18, 1990, when the late Dr. Perry Ehlig was reappointed as Board chairman; and,

WHEREAS, the appeal fee established by Resolution No. 86-57 has not appeared in any City fee schedule since July 7, 1992; and,

WHEREAS, on August 17, 2004, the City received a timely appeal of the City geotechnical consultantís conceptual approval of the geology and geotechnical reports for a new home on a bluff-top lot in the Lunada Pointe neighborhood, pursuant to the provisions of Ordinance No. 210, as codified in Chapter 2.40 of the Rancho Palos Verdes Municipal Code; and,

WHEREAS, although the Geotechnical Board of Appeals has been disbanded, in effect if not in fact, it is necessary to revise the provisions of Chapter 2.40 of the Rancho Palos Verdes Municipal Code that area outdated and no longer applicable so that a new Board may be appointed to hear this pending appeal.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES DOES ORDAIN AS FOLLOWS:

Section 1: Chapter 2.40 of Title 2 of the Rancho Palos Verdes Municipal Code is hereby amended to read as follows:

Chapter 2.40

GEOTECHNICAL BOARD OF APPEALS

Sections:

2.40.010 Created.

2.40.020 Members.

2.40.030 Meetings.

2.40.040 Record of Board Actions.

2.40.050 Compensation.

2.40.060 Quorum.

2.40.070 Procedure.

2.40.010 Created.

A geotechnical board of appeals is created and established to hear appeals from the determinations of the city engineer or the city geologist as to whether or not, by reason of geologic or soils conditions, a building site or proposed grading work is safe or unsafe; a geologic or soils report is required before the safety of such site or work can be determined, or to resolve a dispute between two or more geotechnical engineers or geologists about the geologic conditions that are present on a particular site or the actions that a project applicant must take to address the site conditions as part of the development of the proposed project. Such geotechnical board of appeals is hereinafter in this chapter referred to as the board. The board shall serve as a board of review of the adequacy of geological and soils reports and shall provide for interpretations of data, opinions, conclusions or any one or more thereof contained in such reports. As an alternative to the process established by this chapter, the City Council may appoint a panel of geotechnical experts to address significant and ongoing geologic issues that affect just a particular property.

2.40.020 Members.

The board shall consist of three members who shall be appointed by a majority of the entire city council and who shall serve at the pleasure of the city council. Two of the members shall be qualified by education, state registration, training, experience and prominence in the field of engineering geology. One member shall be qualified by education and state registration as a civil engineer, and by training, experience and prominence in the field of soils engineering. The term of office for each board member is four years, and thereafter until a qualified successor has been appointed by the city council. The city council also may appoint one or more alternate members from each of the aforementioned disciplines. Should any vacancy exist on the board, an appointment shall be made in like manner for the unexpired portion of the term.

2.40.030 Meetings.

The board shall hold at least one regular meeting during each calendar year at such time and place as is designated in the rules and regulations of the board. Special meetings may be called by the chairperson or by a majority of the board. If any regular member is absent from any meeting or, by reason of disqualification or otherwise, does not participate in a particular case, the alternate member shall serve in his or her place at such meeting and in such case shall be deemed a regular member.

2.40.040 Record of Board Actions.

The director of planning, building, and code enforcement, or his or her designee, shall act as the secretary of the board. The board may adopt rules and regulations for the transaction of its business and shall keep a record of all its resolutions, actions, findings and determinations. Minutes, resolutions, and official records shall be filed with the city clerk.

2.40.050 Compensation.

Each member of the board shall receive compensation to review reports that have been prepared regarding particular projects and to attend meetings of the board at the hourly rate that said member typically charges to perform similar work for its clients, which shall be set forth as an exhibit to the board memberís agreement with the city. The rates to perform work as a board member shall be within a reasonable range of rates that are typically charged by other experts in the particular discipline. Board members shall be reimbursed for transportation and meals pursuant to the same policy guidelines that are applicable to city employees. Invoices for work performed and allowable expenditures shall be submitted monthly for the preceding month and shall be supported by adequate documentation, as determined by the director of finance or his or her designee. Undisputed invoices shall be paid within thirty calendar days of receipt.

2.40.060 Quorum.

A quorum shall consist of two members of the board. A majority vote of the members of the board shall be required for board action.

2.40.070 Procedure.

A. Appeal. An appeal may be filed by any person dissatisfied with a decision or decisions of the city engineer or city geologist as to whether or not, by reason of geologic or soils conditions, a building site or grading work is safe or unsafe; a geologic or soils report is required before the safety of such site or work can be determined, or to resolve a dispute between two or more geotechnical engineers or geologists about the geologic conditions that are present on a particular site or the actions that a project applicant must take to address the site conditions as part of the development of the proposed project. Such appeal shall be filed in writing with the secretary of the board within thirty days after the date of the city engineerís or city geologistís decision. At the time of filing the appeal, the appellant shall pay the filing fee established by resolution of the city council and shall deposit funds to be held in trust by the city, as estimated by city staff, to pay for the full cost of having the board review the disputed decision.

B. The form and notice of the appeal shall include the name and address of appellant, the street address or legal description and location of the premises covered by the appeal, and a statement of the grounds of the appeal or how there is an error in the decision being appealed.

C. Hearing. Upon accepting a notice of a complete appeal, the secretary of the board shall set the matter for consideration before the board not more than ninety days after the acceptance of the notice of appeal. The secretary shall give notice in writing to the appellant and any affected party not less than ten days prior to the hearing. At the meeting on appeal, the board shall hear the appellant and any affected party and shall consider the testimony and any other written evidence, which in its opinion is material. The city engineer or city geologist or his or her authorized representative shall attend said meeting to explain the basis for the decision being appealed.

D. Decision. Based upon the evidence presented at the hearing, the board shall affirm, reverse or modify the disputed decision. Said decision shall be rendered within thirty days following the last meeting at which the board considered the appeal. Within ten days after the decision of the board is rendered, the secretary shall notify the appellant and any other affected party of the decision."

Section 2: After the effective date of this Ordinance, it shall apply to the review of geology and/or geotechnical engineering reports for any project or site, and any subsequent or pending development applications, that had not been acted upon by the City as of the effective date of this Ordinance.

Section 3: The City Clerk shall certify to the adoption of this Ordinance and shall cause the same to be posted in the manner prescribed by law.

PASSED, APPROVED AND ADOPTED THIS __ST DAY OF SEPTEMBER 2004.

_________________________________

MAYOR

ATTEST:

____________________________

CITY CLERK

STATE OF CALIFORNIA )

COUNTY OF LOS ANGELES )ss

CITY OF RANCHO PALOS VERDES )

I, JO PURCELL, City Clerk of the City of Rancho Palos Verdes, do hereby certify that the whole number of members of the City Council of said City is five; the foregoing Ordinance No. ___ passed first reading on September 7, 2004, was duly and regularly adopted by the City Council of said City at a regular meeting thereof held on ___________, 2004, and that the same was passed and adopted by the following roll call vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

__________________________________

CITY CLERK