Rancho Palos Verdes City Council




DATE: JANUARY 17, 2006


Staff Coordinator: Kit Fox, AICP, Senior Planner


Receive and file the report on the status of construction issues at 2 Yacht Harbor Drive.


This report provides a status update on the project at 2 Yacht Harbor Drive, including the stonecutting operations; the storage of building materials on and certification of the “rock mesa” area; the trimming of foliage adjacent to the Portuguese Bend Club parking lot area; the installation of site landscaping and new perimeter fencing; the time line for completion of the project; and other issues of concern regarding the project.


The City Council has asked for a status report regarding this project as it nears completion so as to receive updates on issues of concern to residents in the Seaview community, as articulated in an e-mail from Councilman Gardiner on December 5, 2005.


Stonecutting: Staff visited the project site in early January 2006 and observed that nearly all of the exterior stone veneer appeared to be complete. Staff estimates that approximately ninety-five percent (95%) of the exterior stone veneer application has been completed. Stone veneer is also being applied to interior walls. The "large scale" stonecutting operations that were located in the garage have been terminated.

Storage of building materials on the "rock mesa": Based upon conversations with Mr. Johnson and his construction superintendent, Staff understands that the remaining stone and other building materials on the “rock mesa” should begin to be removed during the third week in January 2006. Some Seaview residents have raised a concern that the removal of the cut stone would constitute an illegal commercial operation based upon previous comments made by the City Attorney at the December 7, 2004, City Council meeting. At the time, the City Council was discussing the legality of the stonecutting and the City Attorney stated that the stonecutting could be perceived as a commercial activity if the cut stone was not being used by the project applicant. As a result, Staff has received comments from Seaview residents that if the cut stone is removed from the property, the operation should be considered an illegal commercial operation. Staff and the City Attorney believe, however, that if the amount of remaining cut stone is minimal and is clearly excess stone that was intended for use in the project, its removal would not constitute an illegal commercial operation.

Certification of the re-grading of the “rock mesa”: As the City Council may recall from a previous status report, Mr. Johnson installed a concrete drainage swale along the seaward edge to the “rock mesa” after his civil engineer had already provided certification of the “rock mesa” grading last spring. As a result, Mr. Johnson’s certification report was rejected and re-certification of the “rock mesa” was required after the concrete swale was installed. As it turned out, the elevation of the concrete swale ended up too high to be consistent with the revised grading plan approved by Staff in March 2003. Therefore, the concrete swale was removed and the originally-approved earthen swale is currently being graded in accordance with Condition No.1 of the revised grading plan approved by Staff on March 26, 2003. Staff has informed Mr. Johnson that the finished grade of the “rock mesa” area will need to re-certified after the grading of the earthen swale is completed. As of the date that this report was complete, Staff had not yet received this certification.

Foliage adjacent to the Portuguese Bend Club parking lot area: Seaview residents have expressed concern about view impacts of existing foliage surrounding the parking lot and former gatehouse for the Portuguese Bend Club community. There was no condition of approval for Mr. Johnson’s project requiring him to modify this foliage. As a result of more recent view concerns, Staff consulted with the City Attorney as to whether the City Council could require the foliage to be trimmed as a condition of the revised landscape plan (see discussion below). However, based upon a recorded agreement between Mr. Johnson and the Portuguese Bend Club community which grants an easement over this portion of the property that includes the responsibility for the use and maintenance of the parking lot, gatehouse and related improvements to the Portuguese Bend Club community, the City Attorney opined that the responsibility for trimming this foliage was the Portuguese Bend Club community’s, not Mr. Johnson’s.

This decision has raised a number of concerns with Seaview residents who believe that the City’s View Restoration and Preservation Ordinance is not being properly applied to the trees on Mr. Johnson’s property. As explained by the City Attorney, it is not that Mr. Johnson’s trees are exempt from the View Restoration and Preservation Ordinance, but that due to the recorded agreement, the Portuguese Bend Club community, not Mr. Johnson, is responsible for trimming the trees. As a result, the City cannot compel Mr. Johnson to trim the trees. Nevertheless, Seaview residents who are affected by the trees have the opportunity to pursue the trimming of the trees with the Portuguese Bend Club community. Recently, Staff met with representatives of the Portuguese Bend Club community, who indicated that it is their intention to trim, thin, lace and/or remove foliage in this area in the near future to address the view concerns of Seaview residents.

Site landscaping and perimeter fencing: Staff originally approved a conceptual landscape plan for the project in March 2003. Mr. Johnson subsequently prepared more detailed final landscape plans, which he submitted to Staff for review in July 2004. Staff reviewed several iterations of these final plans for compliance with the approved conceptual plans over the next year or so. Revised final landscape plans were approved by Staff in October 2005 and, after further discussion with Mr. Johnson, this approval was further refined and clarified in December 2005.

Before the revised plan was approved in October 2005, Staff reviewed the landscape plan with several Seaview residents at City Hall. At this meeting, several concerns were raised with the landscaping, which resulted in Staff placing several conditions of approval on the revised landscape plan to limit the height of plants and foliage to minimize view impairment. For example, the “rock mesa” area is to be planted with native grasses that must be mowed to a height of six inches (6”) on a quarterly basis.

Pursuant to the Planning Commission’s approval, the landscaping plan includes perimeter fencing along Palos Verdes Drive South to replace the existing chain link fence along the frontage of Mr. Johnson’s property. The approved fence is required to provide at least eighty percent (80%) openness for the passage of light and air. The fence detail has been reviewed by Staff and calculated to provide eight-four percent (84%) openness for the passage of light and air. While the new fence must be installed prior to building permit final, Mr. Johnson will have ninety (90) days after building permit final to complete installation of the site landscaping.

Completion of construction of the dwelling: The City’s Building Official granted a 6-month extension of the building permits for the project in August 2005. As mentioned in a previous status report, the granting of such extensions is a routine matter when a project applicant is diligently pursuing the completion of a project. The permits will now expire on February 20, 2006. In conversations with Staff, Mr. Johnson and his construction superintendent have indicated that they plan to satisfy all of the necessary conditions to final the building permits by the end of January 2006, and will be seeking the issuance of a Certificate of Occupancy shortly thereafter.

Councilman Gardiner’s questions regarding Planning Commission review and the Certificate of Occupancy: In a previous e-mail to Staff, Councilman Gardiner asked about the possibility of the Planning Commission reviewing project changes; and City Council involvement in the issuance of the Certificate of Occupancy for the project. The City Attorney has considered these questions and the response is as follows:

The 2 Yacht Harbor Drive project was approved by the Planning Commission with conditions of approval in 2001. The Planning Commission's approval was not appealed to the City Council, so the original conditions of approval cannot be changed.

Section 17.78.050 of the Code does set forth an interpretation procedure for approved applications. Any interested person may request that the body that took the final action, which in this case is the Planning Commission, conduct an interpretation hearing.

Interpretation hearings can address:

1. Discrepancies between approved plans and subsequently revised plans.
2. Interpretations of conditions of approval.
3. New issues stemming from construction of the approved project which were not addressed or considered as part of the original project approval.
4. New minor project modifications that are similar in scope to the project considered under the original application; and
5. Minor modifications to the approved project as a result of and in conjunction with city decisions on subsequent discretionary applications.

The interpretation process may be initiated by the Director, the Planning Commission, the City Council, or any interested person. A fee is not required to be paid if the initiation request is made by the Director, the Commission or the Council (the fee is $437). Thus, the Council as a whole can initiate the interpretation process, or an individual Member of the Council could pay the required fee and initiate the interpretation process. In that latter circumstance, the individual Council Member would be acting as an appellant, and ought not participate in a hearing before the City Council, assuming that the decision of the Planning Commission were appealed to the Council. So, unless the Council Member already has a legal conflict of interest, which I do not believe is the case here, it is preferable for the interpretation process to be initiated by the entire Council so that no fee is required to be paid, and all Council Members can participate in an appeal hearing, if that were to occur.

If the interpretation process were utilized either by an interested person or the Council, that process would appear to be able to address many of the issues that are being raised by the neighbors about this project. However, while the interpretation process could serve to clarify the meaning or intent of the Planning Commission's 2001 decision, it cannot change the decision. Likewise, while the interpretation process would allow the Planning Commission to further define or enumerate the conditions of approval, the Commission cannot substantially change, add or delete conditions.

Turning to the Certificate of Occupancy, the Municipal Code, which incorporates and amends the State Administrative Code and the Building Code, states that the Building Official issues the Certificate of Occupancy (Section 15.18.080). The issuance of a Certificate of Occupancy, like the issuance of a building permit, is a ministerial act. The Building Official looks at the plans and the structure and determines if the structure was properly constructed. The Building Official cannot impose new conditions at the time of issuing a Certificate of Occupancy. Section 15.18.080 of the Municipal Code states that the issuance of a Certificate of Occupancy shall not be construed as an approval of a violation of the Code. Certificates presuming to give authority to violate or cancel the provisions of the Code are not valid.

The issues raised by the Seaview neighbors appear to focus on whether the developer of the project has complied (or is complying) with the conditions of approval that were imposed by the Planning Commission. As discussed above, the interpretation process could be used to raise that type of issue. Because the issuance of a Certificate of Occupancy is a ministerial act that is performed by the Building Official, a Code amendment would be required to have that duty performed by another person or entity in the City. Given that the Building Official reviews the physical integrity of a structure (as well as plumbing, electrical work and the like), amending the Municipal Code to revise the process for issuing a Certificate of Occupancy to have the City Council perform that function does not seem to be advisable, especially when the Code interpretation process is available to address the Seaview neighbors' concerns.

Seaview residents’ questions: Based upon a meeting between Seaview residences and Councilman Gardiner in December 2005, a series of questions were submitted to Staff by Councilman Gardiner. Provided below are Staff’s responses the questions included in the attached e-mail from Councilman Gardiner, dated December 5, 2005.

Grading Questions

1) The Planning Commission and the Grading Plan

a) What did the Planning Commission see and approve regarding the grading plan?

The plans presented to the Planning Commission depicted the site grading related to the excavations for the structures as well as the grading related to the realignment of Yacht Harbor Drive, the installation of the storm drain and the grading of the “rock mesa.”

b) Is there an original grading plan? Are copies available for review?

Yes, the plans reviewed by the Planning Commission are available for review.

c) Is there a series of modified plans? If so, what is the chronology and who has approved each change?

There have been two grading modifications approved by Staff after the Planning Commission’s original approval. The first was the March 2003 plan to modify the grading of the “rock mesa” area. In response to Seaview residents’ concerns, this plan was approved by Staff since the resulting grading would lower the “rock mesa” grade and result in less view impairment than the Planning Commission’s approval. A second, very minor modification was approved in June 2005 to add a small earthen berm along the roadway on the seaward side of Yacht Harbor Drive near the east end of the house. This berm is consistent with the location and height of such berms, as specified in the original conditions of approval.

d) How does the most recent grading plan differ from the original (first) approved grading plan?

Aside from the small berm described above, the difference between the original and revised grading plans involves the modifications to the elevation of portions of the “rock mesa.” In general, the revised grading plan lowers the grade of the southerly half of the “rock mesa” by one to six feet. The revised plan does not lower the grade of the entire “rock mesa” to that existing prior to the construction of the project.

e) What is the boundary and/or difference between “minor” versus “major” grading?

According to the Development Code, “minor ” grading involves 20-50 cubic yards of earth movement, with a maximum depth of 3-5 feet and not located in an area with a slope of 35 percent or greater. Grading that exceeds one or more of these thresholds is defined as “major” grading.

f) What are the original requirements for this grading permit approval?

The required findings for the approval of a grading permit are spelled out in Section 17.76.040(E) of the Development Code. These same findings were enumerated in the Planning Commission resolution approving the project (see attachments). A total of 45,860 cubic yards of grading was approved, including the excavations for the structures, the road realignment and the storm drain installation.

g) What are the current requirements for this grading permit approval?

The current grading permit findings are the same as those in effect at the time the project was approved. The only revised grading conditions are those related to the revised March 2003 grading plan discussed in Response 1c above.

h) Did the Planning Commissioners expect an artificial hill between Palos Verdes Drive South and the ocean, and a huge ravine completely filled in to make a level ground (this alteration of the moratorium area was beyond the “footprint” of the installation of an 18-inch underground storm drain across where the ravine cut the area in half)?

The grading plans presented to and reviewed by the Planning Commission depicted the filling of an existing open drainage channel across the “rock mesa” area, as well as the fill on the “rock mesa.”

2) Is the grade supposed to go back to pre-existing or not?

a) What was the direction given to Mr. Johnson?

After Seaview residents raised view concerns regarding the raised grade of the “rock mesa”, Staff’s initial reaction was to ensure that the grading of the “rock mesa” was in conformance with the Planning Commission’s approved plan. After Staff verified that the “rock mesa” had been graded in accordance with the original grading plan (based upon the civil engineer’s certification), in response to the neighbors’ concerns Staff asked Mr. Johnson to revise the grading plan for the “rock mesa” to lower the elevation of the “rock mesa” to the pre-existing grade.

b) What is the regulation or code that defines a major revision and why does or why doesn’t the Johnson proposal qualify as a major revision?

Condition No. 2 of the Planning Commission resolution gave the Director the authority to approved minor modifications to the project. The total grading approved for the project was 45,860 cubic yards of cut and fill. The revised grading plan increased the amount of cut by 1,900 cubic yards, or about four percent (4%). Staff approved the revised grading because it believed that it was within the scope of a minor revision under Condition No. 2 since it would ”achieve substantially the same results as would strict compliance with the approved plans and conditions.” Furthermore, Staff made it clear to the Seaview residents who were seeking to have the grade lowered that the revised grading plan would be approved by Staff as a minor modification and no objections were raised to such action at that time.

c) How much re-grading of the rock mesa was proposed?

See response to Question 2b above.

d) Did the Johnson Revision comply with the directive given by Joel? If not, why not?

No, Staff requested that the “rock mesa” be lowered to pre-existing grade. Mr. Johnson’s engineer stated that he would see what could be done to achieve this. Mr. Johnson’s engineer prepared a plan that substantially lowered the grade of the “rock mesa” but not to the pre-existing grade. The engineer explained that the grade could not be lowered further due to engineering and drainage concerns. Staff then consulted with the City Attorney to see if Staff could direct that the grade be lowered to pre-existing grade. The City Attorney made it clear that the Planning Commission hade approved fill on the “rock mesa” and that any effort by Mr. Johnson to lower the grade would be at his discretion, because the decision of the Planning Commission was final and had not been appealed to the City Council.. As such, the City Attorney made it clear that the City could not make him lower the grade further. As a result, Staff approved the revised grading plan which lowered the grade substantially below the elevation approved by the Planning Commission, but short of lowering it completely to the pre-existing grade.

e) Did the Johnson Revision follow city procedure and Conditions of Approval?

Staff believes that it did because, as discussed above in Response 2b, the modification was approved pursuant to Condition No. 2 since it would ”achieve substantially the same results as would strict compliance with the approved plans and conditions.” The reduction of the grade accommodated the concerns about views and only increased the amount of the grading by approximately 1900 cubic yards to allow for the reduction of the grade. Furthermore, the reduction of the grade resulted in less view impact than what had been approved by the Planning Commission.

f) Are the residents correct? Will the project be re-graded down to pre-existing?

See response to Question 2d above.

g) If the grade issue has been resolved, did the revision comply with the directions given by Joel as understood by the residents? If not, why not and how was the grade issue resolved?

Technically, the grade issue has not been resolved since the final certification of the “rock mesa” has not been submitted to the City. As a result, Staff has not evaluated whether the final grade meets the revised grading plan.

h) If the grade issue has not been resolved, will it go to the planning commission as indicated by Joel? If so, when? If not, why not?

If, after the certification is submitted, Staff determines that the grading of the “rock mesa” meets the approved, revised plan, the issue will be considered resolved. If the grade does not match the plan, then Staff will direct the Mr. Johnson to modify the grading further until it does meet the plan. There is no plan to remand the matter to the Planning Commission because, in any case, the grade of the “rock mesa” will be lower than what the Planning Commission originally approved.

i) When was this “hill” presented to the public? When was it presented to the Planning Commissioners?

See response to Question 1h above.

j) Was it presented before the PC voted approval of the project?

See response to Question 1h above.

k) Has grading been done in the Landslide Moratorium Area? If so, how is this reconciled with the PC Resolution which says “no alteration of the Landslide Moratorium area?

Yes, grading related to the installation of the storm drain and the road realignment was conducted within the Landslide Moratorium Area. The City’s Landslide Moratorium regulations permit these types of grading related to roadway and infrastructure improvements on properties or portions of properties located within the Landslide Moratorium Area.

l) What is the original grade of the property? How is this being determined?

The pre-existing site contours for the “rock mesa” were depicted on the original grading plans, which were presented to the Planning Commission at the public hearings. The pre-existing contours are also depicted on the revised grading plan for the “rock mesa.” Furthermore, the City has topographic maps dating back to 1976 that show the pre-existing grade of the site.

m) The residents would like to see the Trans America topography maps? Can these be provided? If not, why not?
The files related to the previous 10-home Transamerica project, including a plan depicting the then-existing topography, are available for public review and inspection during regular City business hours.

n) How does installing an 18-inch storm drain under Palos Verdes Drive South justify grading the entire moratorium and vacant lot?

As a part of the original plan presented to the Planning Commission, Mr. Johnson proposed to improve the site drainage of the property by directing the surface flow in the “rock mesa” area into an underground storm drain. These improvements involved replacing an existing open ditch across the “rock mesa” area with an 18-inch storm drain pipe.

o) At no time did the residents say they were happy with the revision. Now the residents assert that the revision was approved at staff level the very next day WITHOUT any additional changes as discussed at the meeting. Is this correct?

Yes, the revised plan was approved the following day (March 26, 2003), for the reasons discussed in the response to Question 2d above.

p) If so, Why?

See response to Question 2d above.

q) How come this revision/change (C-3.1) grading plan did not go back to the Planning Commission (the body who approved it)? This appears contrary to several Municipal codes 17.76.040 D.5b, Section 17.78.040A. and B. and the Johnson Project COA #2. Please refer below:

As discussed in Response 2b above, Staff did not take the revision that lowered the grade on the “rock mesa” back to the Planning Commission because it lowered the grade below the level that the Planning Commission had approved, and was consistent with the Director’s authority under Condition No. 2. Furthermore, the Seaview residents were aware of this approach and raised no abjection to it at the time. Mr. Johnson did not have to take this action, which was suggested by Staff to improve the Seaview neighbors’ views over the “rock mesa” area.

r) What is the standard re: drainage and the stability of a pipe in the LSM area

The engineering standards for storm drain pipes are the same for the Landslide Moratorium Area as they are elsewhere in the City. The design and installation of the storm drain pipe was reviewed and approved by the City’s Public Works and Building and Safety departments.

s) What are the limits to the “cut and fill” in the storm drain plan?

While the exact limits of cut and fill for the storm drain are depicted on the site improvement plans, the grading was generally limited to the “rock mesa” area as shown on the storm drain plans that were reviewed and approved by the City’s Public Works and Building and Safety departments.

t) What are the dimensions of trench for the storm drain?

The approved storm drain plans show the depth of the storm drain pipe varying from approximately six feet (6’) to eighteen feet (18’) below pre-existing grade. The trench extended for approximately 550 linear feet.

u) Prohibited vs. Permitted: is it permitted, if it’s not specifically prohibited? i.e. The grade going up all over the vacant land and filling in the large ravine.

If something is not specifically permitted on a plan, it is strictly prohibited. The cut and fill associated with the storm drain was depicted on the plans reviewed and approved by the Planning Commission and is, therefore, permitted.

v) Is there a permit for the storm drain? And who is responsible for the drain?

Yes, the City issued a permit. The storm drain is a private facility and Mr. Johnson is responsible for it.

w) The Seaview residents say they were not notified that the revised grading plan was approved on 3/26/03? Where they notified? If so, who specifically was notified and how (i.e., by what means)? If not, why not?

Debbie Hansen, who was acting as a coordinator for the Seaview residents concerns at the time, was notified by e-mail and was provided with a copy of the letter approving the revised grading plan. Staff recalls having sent a copy of the approval letter shortly after the plan’s approval, although Mrs. Hansen indicated in an e-mail on March 30th that she had not received it. Another copy was sent to Mrs. Hansen on or about April 9th.

Landscaping Questions

Fencing Issues

1) Who is responsible for the fencing that extends beyond the Johnson property line?

Staff believes that the fence was probably originally installed by the developer of the Portuguese Bend Club community. It may be maintained by the homeowners’ association since they rely upon the fence to provide security for their community. However, much (if not all) of the fence is probably in the City’s right-of-way.

2) Who will be responsible for replacing the remainder of the old fence where the old fence is along Palos Verdes Drive South? Please note the requirement for fence (COA #20): 80% light and air. And hedges…will not be permitted.

There is no assigned responsibility for the remaining fence under Mr. Johnson’s permit. However, any replacement fence would likely need to meet similar standards regarding openness for the passage of light and air.

3) Why allow one-foot foliage along the fence? The figure below shows that the fence alone barely meets the 80% light and air requirement. Allowing one-foot foliage reduces light and air to 67%. (See diagram).
a) Does the proposed fence and plantings meet the 80% light and air requirement?
b) If so, are there calculations to support this conclusion if the answer is yes? If so, please provide them.
c) If not, what is being done to correct deviation from the plan.

The original fence detail met the 80-percent openness requirement. However, after further discussion of this matter with Mr. Johnson as a result of concerns express by Seaview residents, he agreed to increase the spacing of the pickets from four inches to six inches, thereby increasing the openness of the fence to eighty-four percent (84%). In addition, the alignment of the fence was moved slightly downslope and onto Mr. Johnson’s property from the property line so that foliage up to one foot (1’) in height would be no higher than the adjacent grade in the City’s right-of-way on the outside of the fence.

Foliage Issues

The Pre-Existing Trees

4) It appears that the Municipal Code apparently has not been enforced ( B.4) Condition of Permit Issuance. ORDINANCE states “The city shall issue no ... building permit ... unless the OWNER REMOVES ... foliage ... that significantly impairs a view.”

a) Is this wording correct and does it report the intent of the ordinance correctly?

The language appears to be correctly excerpted from the cited Municipal Code section.

b) Does the foliage in question significantly impair a view?

The foliage near the Portuguese Bend Club parking lot and former gatehouse was not assessed for its potential to create significant view impairment. That issue should have been identified but was not.

c) If so, why wasn’t the code enforced and the foliage required to be removed before the building permit was issued? Please cite authority if there is a deviation from the referenced code?

See response to Question 4b above.

d) What question was asked of the city attorney that generated a response apparently dealing with “maintaining” instead of “removal”?

The revised landscaping plan was reviewed with the Seaview neighbors at a meeting at City Hall in August. At that time the Seaview residents raised concerns about the various trees and shrubs located on Mr. Johnson’s property near the Portuguese Bend Club gatehouse and whether they could be trimmed down to restore some impaired views. In an attempt to respond to these concerns, Staff visited some affected Seaview properties to assess views, and consulted with the City Attorney as to the easement restrictions that exist between the Portuguese Bend Club community and Mr. Johnson related to the trees adjacent to the gatehouse. The City Attorney opined that due to the recorded “Deed of Easement” which affects the Portuguese Bend Club’s upper parking area on Mr. Johnson’s property (where the view-impairing trees are located), the City lacks the legal authority to compel Mr. Johnson to trim those trees since the maintenance of the area falls to the Portuguese Bend Club community. As a result, Mr. Johnson's revised landscaping plan did not contain conditions requiring the trimming or removal of these trees. However, this would not preclude any resident from filing a view restoration permit against the Portuguese Bend Club community to address these trees and shrubs now or sometime later in the future.

With respect to the distinction between the terms “maintaining” and “removal”, the maintenance of foliage so as protect views can include many potential actions. In addition to the complete removal of trees, such actions also may include (but not be limited to) trimming, thinning, lacing, lowering crowns and raising canopies of trees.

The Proposed Landscaping

5) What is the current height of the newly planted trees (from the grade)? What is allowed?

Staff does not know the current height of the three oak trees. However, they will not be allowed to exceed an elevation of 228.0’ above sea level or 16 feet above grade, whichever elevation is lower. Pursuant to Condition No. 21, Staff will verify that the site landscaping has been installed in accordance with the approved plans and height limits within ninety (90) days of the issuance of a Certificate of Occupancy.

6) Are there view-corridors established for this property? If so, where are they on a map? If not, why not?

There are no City-designated view corridors established for the property. View corridors are established by the General Plan and Coastal Specific Plan.

7) Was there an “original landscaping plan” approved? If so, by whom? When?

The conceptual landscaping plan was approved by Staff in March 2003.

8) Has a revised Landscaping plan been approved? If so by whom? When?

As described in Response 4d above, in July 2005, Mr. Johnson submitted a revised landscaping plan for approval. The revisions primarily involved changing the location of some fences and replacing 2 approved oak trees with 2 melaleuca trees. The revised landscaping plan was reviewed with the Seaview neighbors, at which time raised concerns about the Oak trees; whether additional trees would be planted; the height of the approved landscaping on the “rock mesa”; and the various trees and shrubs located near the Portuguese Bend Club gatehouse. Based upon these concerns, Staff directed Mr. Johnson to modify certain aspects of the plan, which was approved by Staff in October 2005. Based upon additional concerns raised by both Mr. Johnson and the Seaview residents, Staff further refined its approval of the landscape in December 2005. This approval clarified the number of oak and melaleuca trees; prohibited the planting of additional trees; and limited the height of foliage on the “rock mesa” through a requirement for quarterly mowing.

9) What are the differences between the original and revised landscaping plan? (i.e. how many more new trees are allowed, etc.)?

The conceptual landscape plan depicted a number of lower-growing shrub beds around the house and several trees and shrubs: 4 oaks, 4 olives, 2 avocados, 4 strawberry trees and 18 toyon bushes. The “rock mesa” is depicted with “coastal groundcover seed mix.” The revised landscaping plan depicts a substantially-similar arrangement of lower-growing shrub beds and several trees and shrubs: 3 oaks, 2 melaleucas, 3 avocados, 9 olives, 10 strawberry trees, 3 citrus trees (lemon, lime and orange) and 24 toyon bushes. All of this foliage will be subject to a maximum height of 228.0’ above sea level or sixteen feet (16’) above grade, whichever is the lower elevation. The “rock mesa” will be seeded with a native grass mixed, temporarily irrigated and mowed quarterly to a height of six inches (6”).

10) Does the applicant have permission to plant view-obstructing foliage in view corridors? If so, please provide documentation showing approval and why approval was granted (authority to block a view corridor)?

There are no City-designated view corridors over the property. At the time that the Planning Commission approved the applicant’s project, there was discussion regarding what foliage could be planted on the property. The Planning Commission allowed Mr. Johnson to plant trees and foliage on the property as long as they were maintained in conformance with the City’s View Restoration and Preservation Ordinance (i.e., no taller than the highest wall of the main house or 16’ above grade, whichever is lower).

11) In general-Entitlements and Permits:

a) Is Mr. Johnson in compliance with all entitlements and permits?

At this time, other than the remaining issue about the removal of the concrete drainage swale and the pending certification of the grade of the rock mesa, Staff believes that the project is in full compliance with the existing conditions. Once the “rock mesa” has been re-graded and certified, that issue will be addressed. In addition, Staff will conduct a walk-through inspection and review of all of the project’s conditions of approval before receiving a final sign-off by the Planning Division.

b) Are there permit changes? Who is approving the changes? Who is watching to see that the cumulative impact of the changes do not violate what the PC decided originally?

Aside from the grading revisions discussed in Response 1c above, Staff has approved two (2) minor modifications to the main residence. Both of these modifications were determined to be within with the scope of the Director’s authority under Condition No. 2. The first in November 2004 was for a 75-square-foot expansion of the first-floor great room and the second-floor deck above it, which amounted to an increase in the habitable area of the entire project by lest than one-half percent (0.5%). The second in March 2005 was to convert a 182-square-foot roof area adjacent to the master bathroom into a deck, which added to habitable area to the project. Neither of these revisions increased the lot coverage or height of the main structure, nor will they be readily visible from anywhere off-site. The applicant is required to certify the square footage of each structure prior to building permit final.

c) Do the changes singly or cumulatively constitute a “substantive change” to the project? Who determines this? Can these decisions be appealed? If so by whom? How are those who might wish to appeal notified? Have they been notified?

As discussed above, Staff believes that these were minor modifications that do not individually or cumulatively constitute a substantial change to the project. Staff’s decisions are generally appealable. However, there is no requirement in the Code to provide notification of such minor modifications.

d) Can the residents appeal and have this project sent to the planning commission for review?

Please see the discussion of Councilman Gardiner’s request above on pages 3-5.


Seaview resident Debbie Hansen and Mr. Johnson were provided with copies of the Staff report for this item, and advised of the City Council’s review of this matter at tonight’s meeting.


Based upon the foregoing discussion, Staff recommends that the City Council receive and file this report.


There is no fiscal impact to the City as a result of reviewing this status report. However, depending upon City Council direction for future action (if any), there may be additional fiscal impacts that cannot be reliably estimated at this time.

Respectfully submitted:
Joel Rojas, AICP, Director of Planning, Building and Code Enforcement

Reviewed by:
Les Evans, City Manager


E-mail from Councilman Gardiner
PC Resolution No. 2001-46