Rancho Palos Verdes City Council
   

SEPTEMBER 21, 2004 GEOTECHNICAL BOARD OF APPEALS

TO: HONORABLE MAYOR AND COUNCILMEMBERS

FROM: DIRECTOR OF PLANNING, BUILDING & CODE ENFORCEMENT

DATE: SEPTEMBER 21, 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; and 2) introduce Ordinance No. ___, adopting amendments to Chapter 2.40 (Geotechnical Board of Appeals) of the Rancho Palos Verdes Municipal Code.

EXECUTIVE SUMMARY

At the September 7th meeting, the City Council gave direction to Staff regarding proposed revisions to Municipal Code Chapter 2.40 establishing the Geotechnical Board of Appeals. Accordingly, Staff has made identical revisions to the draft ordinances, and presents them for the City Councilís adoption and introduction, as applicable.

DISCUSSION

The suggested revisions to Chapter 2.40óincluding those proposed by Staff and further refined at the City Councilís directionóare summarized as follows and in the attached underline/strikeout versions of the draft ordinances:

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. This provision has not been altered since the last meeting.

2.40.020

Due to the concerns expressed by the City Council about allowing flexibility for the Director of Planning, Building and Code Enforcement to designate board members who have the requisite expertise to address a particular appeal, and to preclude situations where two members of a panel are affiliated, Staff has revised the composition of the Board back to the original format of five members (including two alternates) rather than three, which was in the last version of the ordinance. As revised, this section requires the Director, in consultation with the City Attorney, to appoint one geotechnical engineer and one geologist to each panel that will consider an appeal and then to consult with the first two appointees and the City Attorney to determine the discipline of the third panel member so that the issues that are raised by the appeal can be adequately addressed. Staff revised the ordinance to allow the Director to consult with the first two appointees in addition to the City Attorney, because the parties to the pending appeal disagree about which discipline is the most essential to the case. Staff recommends allowing the Director to consult with the first two panel members about the appointment of the third member because the panel members will have a better technical understanding of the issues raised by the appeal and can provide valuable advice to the Director about the appointment of the third member. Staff also has added a provision that the Directorís decision about the composition of a particular panel will be final and will not be appealable.

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. This provision has not been revised since the last Council meeting.

2.40.040

The Director of Planning, Building and Code Enforcement is designated as the secretary to the Board, rather than the City Engineer. This provision has not been revised since the last Council meeting.

2.40.050

Compensation for Board members has been 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. This provision has not been altered since the last Council meeting.

2.40.060

Based on Council direction, a quorum of the Board has been revised to the original definition of three members, rather than two members, which was proposed in the last version.

2.40.070

Based on direction from the City Council, paragraph (a) has been revised to require that an appeal must be supported by a written letter or an opinion from a geologist or geotechnical engineer, which must be submitted along with the appeal. This provision was added so that frivolous appeals will be eliminated. 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. These provisions have not been altered from the former version of the ordinance that the Council reviewed on September 7, 2004.

ADDITIONAL INFORMATION

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

FISCAL IMPACT

At the September 7th meeting, the City Council majority agreed (with Mayor Gardiner and Councilman Wolowicz dissenting) that the cost of the pending appeal under Municipal Code Chapter 2.40 would be 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; and 2) introduce Ordinance No. ___, adopting amendments to Chapter 2.40 (Geotechnical Board of Appeals) 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 further revise the draft Ordinance(s) for consideration at a future meeting.

Respectfully submitted:

Joel Rojas, AICP, Director of Planning, Building and Code Enforcement

Reviewed by:

Les Evans, City Manager

Attachments:

Draft Ordinance No. ___U (w/ highlighted revisions made since the last meeting)

Draft Ordinance No. ___ (w/ highlighted revisions made since the last meeting)

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 are 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 and two alternates 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 and one alternate shall be qualified by education, state registration, training, experience and prominence in the field of engineering geology, and one regular member and one alternate shall be qualified by education and state registration as civil engineers, and by training, experience and prominence in the field of soils engineering. The term of office for each board member and alternate is four years, and shall continue thereafter until a qualified successor has been appointed by the city council. Should any vacancy exist on the board, an appointment shall be made in like manner for the unexpired portion of the term. The director of planning, building and code enforcement, in consultation with the city attorney, shall designate the three members of the panel that will address a particular appeal as follows: at least one of the panel members shall be qualified by education, state registration, training, experience and prominence in the field of engineering geology, and at least one panel 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. After consulting with the two members of the panel from each of the aforementioned disciplines and the city attorney, the director shall designate the third member of the panel from the discipline that is most relevant to the issues that were raised by the appeal. No two members of any panel shall be affiliated with each other, and no panel member shall be affiliated with any of the parties to the appeal or any of their experts. The directorís decision regarding the members of each panel shall be final.

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 three 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 and must be supported by a written opinion or letter from a geotechnical engineer or an engineering geologist, which must be submitted to the secretary concurrently with the appeal. 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 21ST 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 21, 2004, and that the same was passed and adopted by the following roll call vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

__________________________________

CITY CLERK

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 are 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 and two alternates 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 and one alternate shall be qualified by education, state registration, training, experience and prominence in the field of engineering geology, and one regular member and one alternate shall be qualified by education and state registration as civil engineers, and by training, experience and prominence in the field of soils engineering. The term of office for each board member and alternate is four years, and shall continue thereafter until a qualified successor has been appointed by the city council. Should any vacancy exist on the board, an appointment shall be made in like manner for the unexpired portion of the term. The director of planning, building and code enforcement, in consultation with the city attorney, shall designate the three members of the panel that will address a particular appeal as follows: at least one of the panel members shall be qualified by education, state registration, training, experience and prominence in the field of engineering geology, and at least one panel 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. After consulting with the two members of the panel from each of the aforementioned disciplines and the city attorney, the director shall designate the third member of the panel from the discipline that is most relevant to the issues that were raised by the appeal. No two members of any panel shall be affiliated with each other, and no panel member shall be affiliated with any of the parties to the appeal or any of their experts. The directorís decision regarding the members of each panel shall be final.

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 three 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 and must be supported by a written opinion or letter from a geotechnical engineer or an engineering geologist, which must be submitted to the secretary concurrently with the appeal. 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 __TH DAY OF OCTOBER 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 21, 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