NOVEMBER 16, 2004 RANCHO PALOS VERDES CITY COUNCIL DRAFT M I N U T E S NOVEMBER 16, 2004 RANCHO PALOS VERDES CITY COUNCIL DRAFT M I N U T E S

DRAFT

M I N U T E S

RANCHO PALOS VERDES CITY COUNCIL

REGULAR MEETING

NOVEMBER 16, 2004

The meeting was called to order at 6:30 P.M. by Mayor Gardiner at Fred Hesse Community Park, 29301 Hawthorne Boulevard and was immediately recessed to a Closed Session. At 7:09 P.M., the meeting was reconvened.

Roll call was answered as follows:

PRESENT: Clark, Long, Wolowicz, Stern, Gardiner

ABSENT: None

Also present were City Manager Les Evans; City Attorney Carol Lynch; Director of Planning, Building and Code Enforcement Joel Rojas; Director of Public Works Dean Allison; Senior View Restoration Coordinator Trayci Nelson; Assistant Planner Beilin Yu; City Clerk/Administrative Services Director Jo Purcell; and, Minutes Reporter Debra Presutti.

The Pledge of Allegiance was led by former Planning Commissioner and current School Board Member Dave Tomblin.

MAYOR’S ANNOUNCEMENTS:

None.

RECYCLE DRAWING:

Han B. Chung, Margaret Wertz, and Sandy Sarkinian were selected as recyclers of the month. Mayor Gardiner mentioned this was the first month three winners had ever been chosen and congratulated the recipients.

APPROVAL OF AGENDA:

Mayor Pro Tem Clark moved, seconded by Councilman Wolowicz, to approve the Agenda with an amendment to add a Closed Session and Item No. 12 under Regular Business regarding an Amendment to the Hon Purchase Agreement.

PUBLIC COMMENTS:

Lois Larue, Rancho Palos Verdes, brought to Council’s attention the fact there is an area on the south side of the Peninsula that people frequently use to turn around and some of the orange posts placed there by the City have fallen down.

Milton Rosen, Sea View resident, thanked Council for their recent actions to halt the stone-cutting operation in the moratorium area at 2 Yacht Harbor Drive. He expressed concern over why this violation of the moratorium rules was allowed to continue in spite of objections raised over the past two-plus years and requested Council take further action to require removal of the stock-piled stone and restoration of the area to its original configuration to restore the views of the homeowners across the road. He urged the matter be returned to the Planning Commission for a public hearing to determine if the existing configuration matches the version that was approved.

Director Rojas indicated staff has been monitoring the project and, in answer to concerns that grading was not being carried out per plan, stated it is a multiphase project. He explained that additional grading was performed and some more will be completed once construction on a certain area of the project is finished.

Mayor Pro Tem Clark remarked the approvals were granted approximately three years ago and queried why the house is still being constructed.

Director Rojas mentioned it is probably the most unique house on the Peninsula and will likely be featured in every architectural magazine. He explained the project was schedule for two years’ total construction, saying it is a major project consisting of approximately 14,000 square feet, much of it partially below grade to maximize the view, which will be finished with veneer stone that is being cut and applied to the facade.

Mayor Pro Tem Clark queried if there is a finite period within which a project must be constructed once approval is granted.

Director Rojas indicated a trigger comes into play if there is inactivity on the project but, if there is ongoing construction activity, they have the right to continue.

City Attorney Lynch advised once a permit has been pulled and construction begins, the owner has a vested right to continue if there is no lapse.

Mayor Pro Tem Clark noted he has personally witnessed periods of time when construction on the house was dormant.

Mayor Gardiner directed staff to summarize the salient points of the matter and forward them to the Council.

Councilman Wolowicz inquired what could be done to address the issue of the accumulation of stones mentioned by Mr. Rosen.

Director Rojas explained the stone on site is not discarded rock but is being cut for placement on the finished home, saying it is staff’s understanding that, since they are approximately three-quarters of the way through the stone-cutting operation, most of the remaining stone will be used.

Councilman Long remarked the public needs to understand that Council is not allowed to take action on any item that is not noticed on the Agenda, saying it is unfair to the party on the other side of an issue since they are not given an opportunity to respond.

Mr. Rosen indicated stone is piled up and the grade has been changed in an area where these things are supposedly not allowed, saying there is a reason the moratorium area has been declared as such.

Steve Hansen, Sea View resident, expressed gratitude to Mayor Gardiner and Director Rojas for stopping the stone cutting, but indicated residents are still concerned with the time line for the project, the fact the operation is occurring in the moratorium area, and the fact that debris is piled quite high. He noted that the grading and stone cutting were never approved by the Planning Commission and are not only in violation of the permit but contradict regulations in the City’s General Plan. He said it is wonderful that the stone cutting has ceased, but the debris needs to be removed and the area restored to its original condition.

Mayor Gardiner reiterated the point that Council has no authority take any action in this instance and can only give direction in a publicly noticed meeting.

Lenee Bilski, Sea View resident, thanked the Mayor and City staff for exercising their authority and shutting down the stone-cutting operation. She explained that since construction began on the property, residents in Sea View have uncovered a number of inconsistencies between what the Planning Commission approved and what is actually on the drawn plans. She described tons of stone being stockpiled, grading and filling of dirt which has raised the elevation of the land, blocking views and altering the moratorium area of the property; despoiling of a portion of scenic coastline by a massive industrial-type rock cutting operation in a residential neighborhood, creating massive amounts of dust and noise pollution. She advised none of these activities were presented in public hearings and the approved plans indicated there would be no significant view impairment and that the landslide moratorium area would not be altered except to replace the storm drain. She urged the matter be brought back to the Planning Commission for a public hearing to thoroughly investigate the project and correct any violations and/or inconsistencies.

Mayor Gardiner recommended the matter be agendized for further discussion since no formal action could be taken.

CITY MANAGER REPORTS:

None.

OLD BUSINESS:

The Mayor advised that items previously discussed and continued to a future meeting are displayed on the City’s website www.palosverdes.com/rpv.

NEW BUSINESS:

APPROVAL OF CONSENT CALENDAR:

Councilman Stern moved, seconded by Councilman Wolowicz, to approve the Consent Calendar.

City Clerk Purcell advised Council members that a revision to the title of the Resolution in Item No. 5, Longhill Drive and Flaming Arrow Drive - Multiway Stop Controls, was in their late correspondence.

Motion to waive full reading.

Adopted a motion to waive reading in full of all ordinances presented at this meeting with consent of the waiver of reading deemed to be given by all Council Members after the reading of the title.

Approval of the Minutes. (301)

Approved the minutes of November 3 Adjourned Regular Meeting (Interviews).

Ordinance No. 414: Neighborhood Compatibility Code Amendment. (1203)

ADOPTED ORDINANCE NO. 414, A CITY INITIATED PROPOSAL TO AMEND TITLE 17 OF THE CITY’S MUNICIPAL CODE CLARIFYING THE NEIGHBORHOOD COMPATIBILITY TRIGGERS AND ESTABLISHING SPECIFIC EXEMPTIONS TO THE NEIGHBORHOOD COMPATIBILITY REQUIREMENT. (This ordinance was INTRODUCED at the November 3rd MEETING.)

Slurry Seal of Palos Verdes Drive East – Inspection Services. (1404 x 1204)

(1) Awarded a contract to HY-Com and Associates, Inc., for Construction Inspection services in an amount not to exceed $12,000; and, (2) Authorized the Mayor and City Clerk to execute a contract with HY-Com and Associates, Inc.

Resol. No. 2004-97: Longhill Drive and Flaming Arrow Drive – Multiway Stop Controls. (1502 x 1204)

(1) Approved three-way stop controls at the intersection of Longhill Drive and Flaming Arrow Drive, and approved installation of Stop Ahead warning signs and pavement markings for motorists on Longhill Drive in advance of its intersection with Flaming Arrow Drive; and, (2) ADOPTED RESOL. NO. 2004-97, A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES ESTABLISHING THREE-WAY STOP CONTROLS AT THE INTERSECTION OF LONGHILL DRIVE AND FLAMING ARROW DRIVE.

Resol. No. 2004-98: Register of Demands.

ADOPTED RESOL. NO. 2004-98, A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES ALLOWING CERTAIN CLAIMS AND DEMANDS AND SPECIFYING FUNDS FROM WHICH THE SAME ARE TO BE PAID.

The motion to approve the Consent Calendar carried on the following roll call vote:

AYES: Stern, Long, Clark, Wolowicz, Gardiner

NOES: None

# # # # # #

PUBLIC HEARINGS:

Reconsideration of the Decision on the Appeal of Conditional Use Permit No. 230 (Planning Case No. ZON2004-00453). [Appellant: James Kay, 26708 Indian Peak Road]. (Continued hearing from October 5th Meeting.)

Mayor Gardiner declared the Public Hearing open.

Tom Maciejewski requested another continuance on behalf of his client.

Councilman Stern indicated he was curious why the draft resolution did not reflect the prior request for continuance, saying he would like to see that fact reflected. He inquired if it is necessary to recite that "the proposed use as petitioned is not contrary to the General Plan," and asked if it would be a valid enactment of the resolution if it reflected the fact the City does believe it is contrary but is under Court order to comply.

City Attorney Lynch answered affirmatively to each of these questions.

Councilman Stern moved, seconded by Councilman Wolowicz, to Continue this matter to the City Council meeting of December 21, 2004, at the appellant’s request.

Resol. No. 2004-99: Appeal of View Restoration Permit No. 123 [Appellant: John Zaccaro]. (Continued from November 13th meeting.) (1806)

City Clerk Purcell informed Council members that staff had distributed a revised resolution to this item, which was not part of the late correspondence.

Director Rojas and City Attorney Lynch advised the only changes were the reflection of the site visit and the word "biannual" being changed to "semiannual" for clarity.

Mayor Gardiner declared the Public Hearing open and indicated that all five Council members personally visited the location, toured the two properties extensively, and have reviewed the application and appeal.

John Zaccaro, Rancho Palos Verdes, thanked Council members for coming to view the properties. He opined the entire view restoration process is seriously flawed and the City’s staff and consultants were unfair and biased. He stated the mandate would substantially alter the privacy of their residence, devalue the property, and wreak havoc with their trees and foliage. He indicated no minutes were taken at the November 13 meeting.

Mr. Zaccaro indicated he will abide by the ordered tree trimming if the City considers including the following stipulations: That the tree trimmers providing the bid to the White’s be in possession of a current license; that they obtain permission from Mr. Zaccaro to enter his property to view the trees and under no circumstance will they enter his property by hopping the fence or walking through his horse corral; that any bids made without viewing the trees from the Zaccaro’s property should be considered invalid; that Mr. Zaccaro must be present when the tree trimmers come to his property to obtain the bid and perform the trimming; that he be allowed to use Dave of Dave’s Tree Service to perform the trimming; that whoever performs the trimming must take precaution not to damage the property, the roof, or the delicate foliage below the trees to be trimmed. He stated Dave’s Tree Service has agreed to meet the low bid and, if they cannot, Mr. Zaccaro will pay any difference.

Mr. Zaccaro requested that he be allowed to perform the trimming once a year rather than semiannually, saying it costs entirely too much to trim trees every six months.

Mayor Gardiner, recognizing the required interval of the trimming remained a point of contention, asked if staff would be agreeable to Mr. Zaccaro’s other requests.

Director Rojas indicated that per the guidelines staff is required to also obtain one bid and assured him that Mr. Zaccaro would be contacted before entering his property to obtain the bid.

Mayor Gardiner noted the suggested trimming is intended to open a viewing window and the purpose of trimming twice a year is to prevent the foliage from closing that window. He inquired what Mr. Zaccaro proposes to do to ensure that the foliage does not encroach and close the viewing window.

Mr. Zaccaro stated he couldn’t ensure the foliage will not close the window. He noted that by cutting them back in the winter months the trees are more likely to be protected from heat stress and a substantial view will be provided throughout the entire window. He remarked there is essentially no view a great percentage of the time in late spring and summer as a result of smog and said the requirement to trim the trees twice a year would not only be costly but could damage the trees.

City Attorney Lynch indicated, since the White’s must submit a bid in order to comply with the ordinance, it would be helpful if Mr. Zaccaro could provide a time frame during which he would agree to be present to receive bidders.

Councilman Long inquired whether the current conditions take into account the possibility that a bid cannot be obtained by going onto the property, noting Mr. Zaccaro is requesting the City agree that a bid obtained without going onto his property would be invalid, which essentially gives him power to prevent the process from taking place or delaying it indefinitely by absenting himself or not cooperating. He suggested the White’s be allowed to submit a bid with a view from their property to allow the process to move forward in the event they are unable to obtain a bid by going onto the Zaccaro’s property.

City Attorney Lynch indicated the current conditions of approval take this into consideration and reflect the White’s ability to obtain an off-site bid if necessary.

Mayor Pro Tem Clark queried if there have been similar view restoration cases where a decision has been made to create a viewing window through foliage and, if so, what the periodicity of trimming has been in those cases.

Coordinator Nelson indicated there have been similar instances but it varies from case to case because of the different types of foliage involved, each with varying growth rates.

Mayor Pro Tem Clark asked for staff’s reaction to Mr. Zaccaro’s request to change the trimming schedule to once a year.

Coordinator Nelson advised that from an enforcement standpoint it is much easier to deal with a trimming schedule that includes a designated time frame in conjunction with limiting the growth to a specified level, saying this allows some flexibility yet safeguards every possibility by indicating the foliage be trimmed every six months or until it reaches a particular point.

Regarding the issue of obtaining the bid, Councilman Stern suggested staff include a provision indicating that Mr. Zaccaro make himself available on reasonable notice and, if he does not, he will lose the ability to have the bidder come onto his property to more accurately assess the bid. Recognizing staff’s opinion that the trimming must be done every six months or significant impairment will result, he queried if a mechanism could be established requiring semiannual trimming for the next five years at which point the matter could be reevaluated.

Coordinator Nelson explained that it is not mandatory that everything be trimmed every six months since the trimming of some growth will be determined by its reaching a specified point.

Mayor Gardiner asked if it is clear to Mr. Zaccaro and staff which things must be trimmed twice a year and which are to be trimmed when the growth reaches a designated point.

Coordinator Nelson advised that is very clearly stated in the resolution.

James White, Rancho Palos Verdes, provided Council members with two photographs and thanked them for coming to his home on Saturday to review the situation. He remarked that the View Restoration staff conducted themselves very professionally and have spent much time formulating their recommendations which will allow his household to retain their view and Mr. Zaccaro to keep his foliage. He strongly urged Council to enact staff’s original report which included a Brazilian pepper tree that is blocking an area Council could not see during the site and also to lower the pittosporum and other foliage in their immediate view down to the level of the wall and to maintain it with a maximum growth of two feet above that level.

Mr. White indicated that Mr. Zaccaro has been insulting, extremely uncooperative, aggressive, and threatening during this entire process. He noted that, contrary to Mr. Zaccaro’s opinion regarding summer views, it is wonderful to sit out on a long summer night and watch the city lights. He urged Council to establish a maintenance schedule for trimming of the trees.

Mayor Pro Tem Clark requested staff to provide a summary of their original recommendation.

Coordinator Nelson described the major difference regards the foliage immediately in the foreground directly above the wall in the photograph provided.

Councilman Stern thanked the applicant and the appellant for allowing Council’s visit on Saturday, saying it was extremely helpful to observe the situation and hear what each had to say. He indicated he fully appreciates why some people feel very strongly about issues and may be passionate when expressing their points of view, saying he chooses not to take that into consideration but to address the specific facts of each individual case. He indicated he also understands concerns about fairness and bias, noting he has not seen or heard any evidence that bias existed in this case. He stated that, having viewed the property and thoroughly reviewed all the materials provided by staff, he believes the Planning Commission made the right decision and their direction is consistent with and dictated by the City’s View Ordinance.

Councilman Stern further indicated the trimming schedule is appropriate because it is not the intent of the View Ordinance to have an unabated impact for a significant period of time despite comments regarding the impact of smoggy summer conditions in Los Angeles.

Councilman Stern moved to uphold the Planning Commission’s decision with the revision that Mr. Zaccaro make himself available within the specified time period so the bidder can gain access to his property and, if he does not make himself available on reasonable request, the bid can be made without access to the property.

Councilman Long indicated he would second the motion as stated with the following amendments: Without staff’s recommendation to adopt the amended resolution presented to Council; addition of the following language to the end of the first sentence on Page 3 of 10 in Section 11: "And by the appellant allowing foliage to grow into the view after the View Ordinance was adopted." The addition of language to Condition 10 on Page 8 of 10 to the effect that the bid obtained by the applicant will be from a bidder who has visited the foliage owner’s property provided the foliage owner furnishes written notice to the City within five days after the permit is issued of three different days during a 25-day period of no less than three hours each during which the foliage owner will agree to make his property available for inspection by the bidder. If he does so, the bidder viewing his property will obtain the bid and, if he does not, the bid will be obtained off site.

Councilman Stern moved, seconded by Councilman Long, to ADOPT RESOL. NO. 2004-99, AS AMENDED, DENYING THE APPEAL, THEREBY AFFIRMING THE DECISION OF THE PLANNING COMMISSION AND APPROVING VIEW RESTORATION PERMIT NO. 123 UPON FINDING THAT ALL APPLICABLE FINDINGS HAVE BEEN CORRECTLY MADE AND ALL PROVISIONS OF SECTION 17.02.040 HAVE BEEN COMPLIED WITH.

Councilman Wolowicz echoed the comments of the other Councilmen and agreed with the specifics outlined by Councilman Long. He queried if there is currently a requirement that a homeowner must be notified prior to their property being entered to obtain a bid, saying he understands the concerns this might raise particularly for people with closed gates trying to ensure the safety of children or animals.

City Attorney Lynch answered there is a notification requirement if someone needs to go onto a person’s property to obtain a bid.

Mayor Pro Tem Clark advised that Proposition M, which became the City’s View Ordinance, intends to balance the rights of property owners with foliage and the rights of property owners with views. He said it is a process that, unfortunately, can sometimes lead to a great deal of emotion and animosity between neighbors, but it is the process the community adopted by voter initiative in 1989 and one that has served the City well in the years it has been in effect.

Mayor Gardiner queried who actually documents that the trimming has been satisfactorily performed.

Coordinator Nelson advised City staff usually does this, with a copy of the records being retained and one provided to all parties involved.

The motion was approved without objection.

Resol. No. 2004-100: Appeal of a Site Plan Review for property located at 5 Rockinghorse Road (Planning Case No. ZON2003-00280). (1203)

Mayor Gardiner recused himself from the matter and turned the gavel over to Mayor Pro Tem Clark.

Recess and Reconvene: Mayor Pro Tem Clark recessed the meeting at 8:25 p.m. and reconvened the meeting at 8:34 p.m.

Mayor Pro Tem Clark declared the Public Hearing open.

Assistant Planner Yu presented the staff memorandum of November 16, 2004.

Mayor Pro Tem Clark complimented Ms. Yu and staff for an excellent report and asked for questions from Council.

Councilman Stern queried if staff understands why the appellant believes the applicant’s not showing the fence and easement is somehow germane to the matter.

Assistant Planner Yu indicated the appellant believes the fencing within the easement should be removed as part of the application; therefore, the entirety of the fencing should have been shown on the plans.

Director Rojas further indicated the appellant believes everything should have been shown because the City should require that everything be removed since it is in a private easement.

Councilman Stern noted that the issues raised by Ms. DiSanto, the original appellant, were resolved and asked why the City’s procedure allows another appellant to not only raise the issues again, but to broaden them beyond what the Planning Commission was originally asked to address.

City Attorney Lynch responded the rules as currently written state any interested person can appeal at any level and that to appeal to the Council you do not have to first appeal the matter to the Planning Commission. She indicated Council could change the policy if it so chooses, but there are some very good reasons to leave it the way it is written.

Councilman Stern remarked one of the major issues raised by the appellant is the issue of the trail. He noted his understanding is that a trail easement cannot be extracted there because of inadequate access and because the roadway is a private road on the subject property with other parties having legal right to the easement and, if the City were to burden their easements with a trail, it might be subject to inverse condemnation. He indicated he would like the appellant to explain why she believes the City should be entitled to impact third parties in this instance.

Councilman Wolowicz commented, if the City were to go through any type of proceeding to establish those easements, action would have to be taken property by property with the City assuming a fairly large dollar commitment because it would be required to reimburse all parties involved for the fair market value of the right being acquired.

Director Rojas stated that Councilman Wolowicz’s assessment is correct and noted there are many other improvements currently in the private easement.

Councilman Wolowicz asked if the trail shown along the City boundary on the backside of the property, which appears to be in non-use or disrepair, is a documented trail.

Assistant Planner Yu answered that in the past there was a trail running along the property at No. 7 Rockinghorse Road, but staff would have to check the Conceptual Trails Plan to determine if there is any trail running along the City boundary.

Councilman Long expressed concern that the City would essentially be taking an action affecting the rights of many people. He indicated those people received no notice of this hearing; the City has no idea of the value of the property involved; and, if the City were to take this property by condemnation, it would be responsible for attorneys’ and experts’ fees for each of the parties whose property would be taken, creating an exorbitant financial burden.

Councilman Stern noted the Conceptual Trails Plan indicates the trail is in the street right-of-way and asked exactly what the appellant is suggesting be done.

Director Rojas responded it is staff’s understanding based on a conversation at the site that the appellant is attempting to get the portion of street right-of-way between the edge of the easement and the paved street cleared of any landscaping and fencing to accommodate some kind of trail use.

Mayor Pro Tem Clark indicated the Conceptual Trails Plan does not recommend that private property owners along Rockinghorse Road dedicate trail easements to accommodate Bronco Roadside Loop Trail.

Sunshine, Rancho Palos Verdes, in answer to Councilman Wolowicz inquiry, indicated there is a trail easement along the City boundary that is dedicated to the Community Association of Rolling Hills and is no longer maintained since that city established a policy to close public access to their trails. She noted that access from the properties west of the Bronco Loop comes down this roadway and into the Eastfield gate to Rolling Hills. She advised that neither she nor Rose Marie DiSanto have ever asked for a trail easement to be dedicated on this property, rather it is a roadway easement that is obstructed and their interest is that there be no obstructions.

Sunshine explained that the applicant had originally agreed to remove the fence but only showed a portion of it on his application. She opined he never intended to remove the entire fence only that portion he considered unsightly; therefore, his application was incomplete. She further indicated the City’s General Plan and Neighborhood Compatibility standards require fences in front yards be no more than 42 inches in height, which this fence exceeds, and the project should be denied because, at 47 percent lot coverage, the house being built is too large for this particular neighborhood.

Mayor Pro Tem Clark advised that the staff report indicates they are within the lot coverage allowed because the proposed lot coverage is 38.6 percent and the City’s Code allows up to a maximum of 40 percent.

Councilman Long inquired if staff could explain the difference between the appellant’s calculation of 47 percent and staff’s of 38.6 percent.

Director Rojas explained staff calculated the paved portion of the street towards the lot coverage while the applicant calculated the entire easement as lot coverage, noting staff consistently uses only the paved portion in its calculations. He stated instances such as this create an awkward situation because there is actually street on someone’s private property and, since the code mentions driveways and parking areas, the paved area was included.

Councilman Wolowicz noted what resonates throughout much of Sunshine’s correspondence is dissatisfaction with staff and issues regarding the Conceptual Trails Plan. He requested confirmation that this particular case is not based on a trails issue but merely the fact that the applicant’s approval should be denied based on incorrect calculations involved in the lot coverage.

Sunshine responded this is not a trails issue but is based on the facts that the calculations were incorrect and the application was incomplete.

Councilman Wolowicz inquired if it is staff’s policy to review and determine the accuracy of maps submitted in terms of easements, measurements, heights of fences, et cetera.

Director Rojas indicated staff does not get involved if an application shows an existing fence in a private easement because it does not involve the City and, in this case, was not an issue pertinent to the project.

Councilman Stern asked, assuming the application was incomplete because certain things not regarded as material to the project were not shown, what different action should have been taken by the City and would not the outcome have been the same since the basic issues have already been addressed and resolved.

Sunshine explained the basic principle is that staff should be considering more fully the basic items of the City’s General Plan and related plans. She stated the applicant agreed to remove the fence, ivy, and boulders and to construct an unpaved pathway, creating a safe and useable walkway for pedestrians and, instead of encouraging that, the City decided not to become involved in the opportunity provided by this particular situation.

Ralph Ortolano, Rancho Palos Verdes, offered moral support and gratitude to Sunshine for her continued involvement in trail issues, saying he would appreciate Council’s giving greater respect to the Conceptual Trails Plan and to promoting maintenance of trail easements when planning decisions are made.

Robert Castelao, Rancho Palos Verdes, as the owner of the property at issue, said he believes he is being victimized. He stated the matter is essentially about nothing but plans for horse trails and his project’s approval has introduced an opportunity for certain individuals to address them. He noted he has documents from Sunshine and Rose Marie DiSanto outlining a ten-foot indentation into his 147-foot wide lot for construction of a horse trail. He indicated the original deed for his property issued in 1948 states the easement is for utility purposes only and he has a legal deed, which concurs. He stated he agreed to remove the fence and has removed 75 percent of it, adding there is an erosion problem on the property so the remaining portion cannot be removed until the project reaches a specific stage, at which point it will be removed.

Mr. Castelao opined the appeal process is supposedly in place to deal with construction issues and the matter being appealed is totally irrelevant to the actual construction.

Sunshine informed that Rose Marie DiSanto is one of the dominant tenants on the easement at issue and stated congenial discussions took place with Mr. Castelao on the site where Ms. DiSanto made it clear she did have the right to stop obstructing her rights to the easement. She noted Mr. Castelao agreed at that time to remove the fence, ivy, and boulders and add an unpaved pathway into the landscaping design of the project and, had he kept that agreement, Ms. DiSanto indicated she would withdraw her appeal.

Councilman Stern advised that staff has informed Ms. DiSanto that she should take any legal rights stemming from the easement to a court of law for remedy because Council is not the appropriate body to address them.

Councilman Wolowicz inquired if the indentation sited is the only indentation on that street.

Sunshine indicated it represents a starting point as far as clearing all the other obstructions on the street. She noted there are four houses with fences right up to the pavement; so this would in essence begin the domino theory of fixing one, then moving to the next, eventually restoring the roadway to an open condition.

Mayor Pro Tem Clark declared the Public Hearing closed.

Councilman Long moved, seconded by Councilman Stern, to ADOPT RESOLUTION NO. 2004-100, A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES, DENYING THE APPEAL, THEREBY UPHOLDING THE PLANNING COMMISSION’S APPROVAL OF SITE PLAN REVIEW NO. ZON2003-00280.

Councilman Stern indicated there is no grounds for an appeal in this matter since the main issue was resolved at the Planning Commission to the satisfaction of the previous appellant and, while he understands and applauds Sunshine’s passion for trails, the Conceptual Trails Plan does not recommend private property owners along Rockinghorse Road dedicate trail easements to accommodate the Bronco Roadside Loop Trail.

The motion passed without objection.

Mayor Gardiner rejoined the meeting.

CITY COUNCIL ORAL REPORTS:

Councilman Wolowicz attended the L.A. County Sheriff’s Basic Academy on November 6th, which he described as an academy made available to elected officials to enable them to experience some of the sheriff’s training program; November 10th he attended a meeting of the LAX Community Noise Round Table where the problem of the increased number of over flights of the Peninsula was discussed. He indicated he requested reconciliation of a discrepancy between the FAA and the flight controllers over which manual to reference regarding over flights and certain other issues. On November 13th he provided a longer version of the State of the City address to the Palos Verdes Breakfast Club and visited the view restoration site at 5 Rockinghorse later that afternoon.

Mayor Pro Tem Clark attended the monthly California League of Cities L.A. Division dinner meeting with Councilman Stern and City Manager Evans on November 4th, where the main topic was the victory of Prop. 1-A. He indicated Dwight Steinbeck, the Deputy Executive Director of the League, was the guest speaker, saying he discussed extending the League’s penetration throughout the state into areas it traditionally has not engaged in, in terms of advocacy and support, one of those areas being homeowners associations. He advised that during the last year the homeowners associations of both the Monterey and Palos Verdes peninsulas have become very active in several important initiatives. On November 12th he received a call from Donald Trump regarding notification of the settlement of his lawsuit with the Palos Verdes School District.

Mayor Gardiner reported that the Cable TV Subcommittee met and is currently in the process of formulating some recommendations so Council can set the stage for the long-awaited debut of Channel 33. He requested the City Manager report to Council on the progress of connecting the City’s studio to the cable provider’s head end facility.

Councilman Stern attended the West Vector Control District meeting on November 11th, and noted that California came through the West Nile Virus period very well this year. He explained the virus cycle is at its height during the summer months and generally peaks after the second year then tapers off as the population essentially becomes immune, noting the District will remain vigilant during this period. On November 15th he attended the Cable TV Subcommittee meeting; on November 11th he participated in the weekly land acquisition conference call and indicated Councilman Wolowicz suggested staff prepare short bullet point summaries of these conversations to keep Council informed.

Councilman Long hiked most of the Forrestal trails with staff on November 12th in preparation for an upcoming Agenda item. He indicated, although not officially City business, he attended an event at which the Director of the Long Beach Aquarium of the Pacific spoke. He remarked it is a very worthwhile institution that exposes people to and educates them about the largest wilderness area in the world – the Pacific Ocean. He encouraged everyone to visit the aquarium and consider providing support.

REGULAR NEW BUSINESS:

Vacation of Portion of City Right-of-Way along east side of Crenshaw Blvd. and south side of Crest Road and fronting St. John Fisher Church property. (1408 x 1204)

Councilman Stern asked if there is any proposed compensation to the City for this land.

Director Allison answered no compensation has been proposed.

City Attorney Lynch indicated the City could request compensation since, unlike the typical easement situation, it does own the property in fee. She stated in order for the City to vacate the property a determination would have to be made that it is not necessary for current or prospective public use. She noted, if the area is found to be of no worth or benefit to the public, the question of how to determine the value of the land remains problematic. She stated the fact the land is on an extreme slope probably mitigates against its having much value which could ultimately benefit the City because, if it belonged to a private owner, the City would not be required to maintain it and, in the event the slope or wall were to fall, the property owner would be responsible to make any repairs deemed necessary.

Councilman Long asked if the City is empowered to dispense with an asset, saying even if the property is determined to be of no immediate public use, it may be of some value in the future.

City Attorney Lynch explained it must first be determined whether or not there is any value to the property and, if so, it would be a gift of public funds. She indicated Council would need to determine if the value of the property is high enough to offset the benefit of the City not having to continue its maintenance.

Councilman Long stated, since there is a stricture written into the California Constitution regarding gifting of public funds, he would be more comfortable setting aside the finding necessary to make a vacation if he had an appraisal determining the actual market value of the property.

Councilman Wolowicz commented he is concerned about the inability to see into the future and the possibility that this Council’s successors at some point would question why such a valuable piece of land was given away. He suggested it would be more prudent to determine the value of the land before making any decision regarding its disposition.

Councilman Stern remarked that a better way to proceed might be to grant an easement or license to the Church, giving them the right to use the land and the responsibility to maintain it while relieving the City of any liability and allowing some flexibility in the event it is determined there is a need for the property in the future.

Mayor Gardiner noted the property currently has easements for cable TV, water vaults, Edison poles, and transformers and queried if there would be any negative impact to granting the Church an easement for their use, saying it would be administratively easier and would provide assurance to the City they could reclaim the property if an unforeseen event were to present itself.

Councilman Long noted a license would probably be better since the City could take it back if the need arose.

City Attorney Lynch indicated a license agreement would be a viable option.

Dave Tomblin, Rancho Palos Verdes, indicated the Church has maintained the property in question since the streets were first paved there, saying they believed they owned the land until Sprint came forward with a proposal to install equipment behind the St. John Fisher fence last year at which point they realized their fence and sign were actually on City property. He explained their objective is to create an easier, more pedestrian-friendly access by installing walkways leading up to the Church on the land in question.

Councilman Stern queried if the Church would be opposed to entering into a periodically renewable license agreement with the City.

Councilman Long inquired if a concept might be included in the agreement so the licensee could apply for improvements and be treated as the agent of the owner, effectively placing the Church in the same position as if they were the owners of the property during the time they hold the license.

City Attorney Lynch responded the Development Code requires the owner to sign off on any application, but it should not be a problem for the Council to agree that the Church could apply to the City for whatever approvals they seek. She recommended, if a license agreement is decided upon, it should be for a definite period of time and revocable upon a reasonable period of notice rather than for a finite period.

Mayor Pro Tem Clark stated his colleagues have made very valid points and he would support the approach of a license agreement.

Monsignor Sork stated that St. John Fisher antedates Rancho Palos Verdes and there is no question of their permanency in their current location. He indicated he would have no objection to a license agreement if it would allow them to maintain possession of the land and make the desired improvements with some assurance of permanency. He stated the planned improvements would beautify the area as well as make it more convenient for pedestrian access.

Mayor Gardiner suggested the City Attorney work with the Church to determine if there is suitable wording to memorialize the circumstances and/or conditions under which the City might exercise its option of taking the property back to provide the Church some assurance of permanence since they are preparing to spend resources to install the proposed improvements.

Councilman Long indicated the Mayor’s suggestion might be very difficult to formulate since the license could run in perpetuity.

Councilman Stern moved, seconded by Councilman Long, to direct the City Attorney and staff to prepare a license agreement and negotiate with the Church with the goal of granting rights for their use of the property but keeping the City’s right of ownership; allow notification of perhaps one year for withdrawing license from Church. If staff is unable to reach agreement on license arrangement with the Church, the matter should be brought back to Council.

Traffic Safety Commission. (1502 x 1204)

City Manager Evans presented the staff memorandum of November 16, 2004.

Councilman Wolowicz requested clarification of the distinction between a committee and a commission.

City Manager Evans advised that under this charter, the Traffic Safety Commission would have the authority to direct staff to perform investigations and prepare reports, they could respond to citizens’ requests for warning signs and make recommendations and decisions on construction area signage as long as none of these things involve spending beyond what is allocated in the budget. They would not have the authority to make changes to those things prohibited in the State Vehicle Code such as stop signs, speed limits, and parking restrictions.

Mayor Pro Tem Clark stated the objective is to create a body that would function in a proactive mode of operation. He cited as an example Council’s frustration over the inability to utilize radar cameras as an enforcement measure to maintain safety on the City’s streets and indicated the Traffic Safety Commission would have the ability to perform a comprehensive study and create an advocacy position for Council to take forward to the State Legislature or other representative body to pursue this matter.

Mayor Gardiner complimented the City Manager for capturing in the draft charter the essence of what the Subcommittee discussed. He felt that including the term "Traffic Safety" more fully defines the issues currently facing the City and the creation of a Commission will ultimately transition into a broader, more proactive vehicle for the Council. He recommended Council move forward on the draft charter and at the end of a period of time, evaluate it and perform any necessary fine-tuning.

Councilman Stern suggested adding language modifying No.’s 3 and 4 to more clearly identify that they fall within the limitations imposed by State Vehicle Code. He indicated he is intrigued by the notion of including minority reports, saying it is an excellent idea.

Councilman Long remarked that the minutes usually serve the purpose of identifying minority opinions.

Councilman Stern said he believes wholeheartedly that, if there are differences of opinion, Council benefits by understanding what they are because the more information and ideas that are presented will ultimately assist in clarifying and focusing Council’s thinking.

Councilman Long indicated there must be a real change in order to persuade his support of the new charter, saying he remains unconvinced it will assist Council in prioritizing and addressing other matters. He stated he believes Council should be aggressively attempting to delegate as much as possible because there is a considerable need for their time to be spent addressing issues of more pressing citywide concern, noting since the charter is not being significantly rewritten but merely modified and amended to clarify concepts like providing minority reports, the nature of the body will not materially change and it will continue to function primarily as an advisory body. He opined it is not warranted to discontinue the existing committee until Council decides to implement significant changes that would alter the character of the committee in addition to simply redefining it.

Mayor Pro Tem Clark stated it is apparent that Councilman Long would like to delegate more decision-making authority to other bodies, but the fact is there are elements of traffic safety that cannot be delegated below the City Council. He noted what is important is reshaping the existing committee into a commission, giving it a new charter which focuses on a strategic look at safety throughout the City, and challenging the Commission members to be proactive and to provide input to Council in a more directed manner than has been done in the past.

Mayor Gardiner spoke in favor, saying after scrutinizing the State Vehicle Code, the Subcommittee came to the realization that very little can actually be delegated, but this charter will provide the Traffic Safety Commission with the authority to initiate study and activities that were not previously within the purview of the Traffic Committee. He stated his experience has shown that the best way to create transition and move towards a new approach is to discontinue an existing body and create a new one.

Councilman Stern agreed with the Mayor, saying this is an attempt to give the Traffic Safety Commission more responsibility consistent with the stringent limitations of the Vehicle Code.

Councilman Wolowicz stated he recognized Councilman Long’s concerns and suggested including a paragraph clearly stating what Council expects from the new commission. He indicated the concepts of proactive action, deliberate consideration, and forward momentum are not to be taken lightly. He remarked that a fitting analogy would be to take into consideration Planning Commissions, saying prior to the first Planning Commission all those issues were reserved to City Councils, adding this may be a leap of faith, but without it Council will be doomed to continue the current status quo which is unsatisfactory for a variety of reasons.

Councilman Wolowicz requested clarification on the need for an additional traffic engineer.

City Manager Evans explained the workload has increased tremendously and staff will be requesting Council to consider funding additional staff for the traffic division during the upcoming budget session.

Councilman Long remarked the City has reached a stage where traffic issues, view issues, and land use appeals collectively consume the majority of Council’s time, pushing aside matters of greater citywide importance.

Bob Nelson, Rancho Palos Verdes, spoke in favor of adopting the staff recommendation, saying RPV is a community in transition and as part of that transition this change would be good. He stated it is neither the Planning Commission nor the Finance Advisory Committee that impacts the lives of RPV’s citizens every day, but the Traffic Committee because the City’s residents must confront the issue of traffic every single day. He suggested replacing the word "recommend" in the charter with the word "establish," saying the commission may be restricted by State law, but they can certainly make recommendations to Council and perhaps shorten the process.

Councilman Long noted that according to the City Attorney the word "establish" cannot replace the word "recommend" anywhere in the proposed draft charter.

Mayor Pro Tem Clark stated this move is a step in the right direction and sets a new tone and tenor which, in concert with the strategic investigation of citywide traffic and safety issues, will give the new Traffic Safety Commission a very important role within the City’s government.

Mayor Pro Tem Clark moved, seconded by Councilman Stern, to (1) Disestablish the existing Traffic Committee and approve establishment of a Traffic Safety Commission under a new Charter; and (2) Directed staff to prepare charter resolution for adoption at the December 7 meeting.

City Manager Evans indicated staff would draft the resolution and bring it back to Council.

Councilman Long remarked that one could easily choke City government to death through a series of appeals which would basically prevent any City Council from every addressing anything of importance. He indicated the draft charter is an improvement, he is supportive of the concepts it contains, and he is convinced it is the best that can be done given the rigid constraints imposed by State law. He stated, since it does not represent a fundamental change in his view, he opposes de-constituting the existing committee and proceeding with a new set of applications, saying Council has already heard the current applicants and should take action on the one vacancy so the current committee can continue its business.

Councilman Long moved to split the motion between adoption of the proposed amended draft charter and de-constituting and reconstituting the traffic body.

Councilman Stern seconded the motion, saying he could see no reason not to allow it to be split.

The motion to split failed 2:3 on the following roll call vote:

AYES: Long, Stern

NOES: Clark, Wolowicz, Gardiner

The original motion carried 4:1 on the following roll call vote:

AYES: Stern, Clark, Wolowicz, Gardiner

NOES: Long

Councilman Long advised he finds it unfortunate that his colleagues voted not to allow him to vote on the two issues separately, saying he is not against the draft charter but is voting "no" because he does not believe the Traffic Committee should be de-constituted.

Councilman Wolowicz noted he understands Councilman Long’s dilemma having recently been in a similar position.

ADDENDUM TO REGULAR BUSINESS

Amendment to the Hon Purchase Agreement. (1101 x 1203)

Councilman Stern moved, seconded by Councilman Wolowicz, to approve a contract with The Source Group to conduct additional environmental studies on the Portuguese Bend Property, including soil sampling testing, as presented.

The motion carried on the following roll call vote:

AYES: Stern, Long, Clark, Wolowicz, Gardiner

NOES: None

COUNCIL DISCUSSION OF FUTURE AGENDA ITEMS & SUGGESTION OF FUTURE AGENDA ITEMS:

Councilman Clark proposed adding a near term agenda item regarding the Eric Johnson project (#2 Yacht Harbor Drive), including a comprehensive update from staff, to enable Council to determine whether to request further review of the project by staff or the Planning Commission.

Councilman Long queried whether the Planning Commission has the ability to review the Johnson project under the conditions of approval.

Director Rojas explained the Municipal Code states if there are violations of the conditions of approval or a project is being carried out contrary to approval, any approved project can be returned to the Planning Commission or other approval body to revoke or suspend the permits.

Councilman Long questioned who makes that decision.

Director Rojas responded the Code indicates the City makes that determination.

City Attorney Lynch advised that staff recently went through the conditions in response to complaints being received and there are no specific conditions dealing with many of the issues being raised. She noted the determination made on the dust that had been emanating from the site, which prompted shutting down the stone-cutting operation, was not based on a condition of approval but on a Municipal Code provision.

Mayor Gardiner voiced support for agendizing the item, saying Council cannot ask questions of a staff that is not prepared.

Councilman Long asked what the agenda item would be since the property owner has existing entitlements, has ceased violating the Municipal Code, and is not in violation of any of the conditions of approval.

City Attorney Lynch advised she would prefer if staff could prepare a report rather than placing the item on the agenda at this time since parties on both sides of the matter have received threats of litigation.

Mayor Pro Tem Clark changed his position and requested the topic be agendized as a closed session item.

Staff to prepare summary of the situation at the #2 Yacht Harbor Drive construction site for December 7th closed session.

In response to Mayor Gardiner’s request for a report on the status of Channel 33, City Manager Evans informed that Cox Cable has reported that they will be stringing new wires on Verizon lines running through Palos Verdes in order to connect the studio, then they will trench the street and come onto the site from overhead. He advised they have prepared the plans and will submit them to Verizon in the next few days to obtain the necessary permits. He indicated they have not yet ordered all the necessary equipment, but their representative Art Yoon has offered assurance the channel will be operational by March 2005 and was optimistic they would beat that date.

CLOSED SESSION REPORT:

City Attorney Lynch advised that no action taken was taken on either item.

ADJOURNMENT:

Mayor Gardiner formally Adjourned the meeting at 10:57 p.m. to November 30th at 7:00 p.m. for a workshop on infrastructure financing to be held at Hesse Park.

______________________

Mayor

Attest:

_____________________

City Clerk