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TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: DIRECTOR OF PLANNING, BUILDING, AND CODE ENFORCEMENT
DATE: JUNE 6, 2006
SUBJECT: APPEAL OF VIEW PRESERVATION PERMIT NO. 78
STAFF COORDINATOR: Tracy Dudman, Associate Planner
Deny the appeal, thereby upholding the Planning Commission’s decision to affirm the Director of Planning, Building, and Code Enforcement’s approval of View Preservation Permit No. 78, which would require the trimming of certain foliage located at 29258 Posey Way that is significantly impairing the view from 6755 El Rodeo Road.
Under the View Preservation Permit process, a resident is entitled to have their view preserved by the City provided they submit a photograph that documents the view as it existed on or after the effective date of the View Restoration/Preservation Ordinance (November 17, 1989). The Applicants (the Parks) have submitted two preservation photographs that clearly indicate that the Applicants’ had a view of the Pacific Ocean and the Santa Monica Bay in the 1997/1998 timeframe. In April 2005, the Applicants submitted a View Preservation Permit application noting that foliage located at 29205 Posey Way, owned by the Appellants (the Jordans), is now impairing their protected view. Staff determined that the Applicants’ documented view is significantly impaired and issued a decision requiring that certain foliage on the Jordan’s property be trimmed down to restore the view. The Jordans appealed the Director’s decision to the Planning Commission. After conducting an appeal hearing, the Planning Commission upheld the Director’s decision for the required trimming, except it excluded one tree from the required trimming due to a question as to the tree’s ownership. The Jordans then appealed the Planning Commission’s decision to the City Council. Staff is recommending that the appeal be denied since Staff believes all the applicable findings of the Development Code and View Guidelines were made to support the decision and no new information has been presented by the Appellants to warrant a change to the Planning Commission’s decision.
On April 21, 2005, the Applicants’ submitted a Notice of Intent to file for View Preservation Permit No. 78, claiming that a hedge and several trees owned by their downslope neighbors, Mr. and Mrs. Jordan (the Appellants), created a significant view impairment (see Exhibit A). Included in the Applicants’ application were two photographs documenting the Applicants’ view. One photograph (Figure 1 as shown in Exhibit B) has a date stamp (dated ’97/12/25) and an image of the Applicants’ daughter age 7, now 16. The second preservation photograph (see Figure 2) does not have a date stamp, but it does show the Applicants’ son and friends at his 1998 birthday party (age 9, now 17) in the rear yard with the unimpaired view in the distance. During the pre-application meeting, held on May 27, 2005, trimming of the view impairing foliage was discussed with the mediator. Although no final agreement was reached at that time, it was agreed that further discussion would take place between the mediator, the Applicants, and the Appellants to reach a private agreement. However, over a period of five (5) months, no private agreement between the parties could be reached for the requested trimming. Therefore, on November 10, 2005, the Applicants filed a formal View Preservation application (see Exhibit C). Pursuant to the Development Code and View Restoration and Preservation Guidelines, Staff assessed the application and a decision was made on the application on December 7, 2005 by the Director of Planning, Building, and Code Enforcement. The decision required that the Ficus hedge, three (3) Ficus trees, two (2) King Palms, and a Brazilian Pepper tree located on the Jordan’s property be trimmed to a height of approximately 12 feet, as measured from the top of the Jordan’s property or to just below the top rail of the Park’s rear fence, whichever was lower. A copy of the December 7, 2005 Director decision is attached as Exhibit D.
The Director’s decision was appealed by the Jordans on December 22, 2005 by submitting the appropriate appeal fees. However, the grounds for the appeal were not submitted by the Jordan’s until the day before the Planning Commission hearing set for March 28, 2006. Thus, Staff was not able to address the issues raised by the Jordans in the Planning Commission Staff Report. Nonetheless, the key points of the appeal were addressed by Staff during the oral presentation of the Staff Report at the March 28, 2006 Planning Commission meeting.
After hearing testimony from both the Appellants and the Applicants, the Planning Commission denied the appeal, on a 5-2 vote, thereby upholding the Director’s foliage trimming recommendations, with the exception of the Brazilian Pepper tree, which they agreed to take no action on due to questions raised by the Appellant as to the ownership of the tree (see meeting minutes, Exhibit E). The Appellants appealed the Planning Commission’s decision to the City Council on April 12, 2006 by submitting the required appeal fee and grounds for the appeal (see Exhibit F). The appeal is now before the City Council for consideration.
A detailed description of the background of the View Preservation case, the Applicants’ request, and Staff’s assessment of the request is contained in the attached Notice of Decision dated December 7, 2005 and the Planning Commission Staff Report dated February 28, 2006. The Planning Commission deliberation and discussion on this matter are contained in the attached Planning Commission minutes from the March 28, 2006 meeting (both the Appellants and Applicants had requested one continuance, hence the lapse of one month) along with the adopted Planning Commission Resolution 2006-15 (see Exhibit G).
The Appellants’ appeal to the City Council dated April 12, 2006 requests that the City Council rescind the Planning Commission decision and refer the matter back to the Director for reassessment. Although the lengthy appeal letter makes numerous statements and allegations, Staff was able to distill the following key points. These points are summarized and addressed by Staff below.
Authenticity Of Photographic Documentation:
According to the City Council approved View Restoration/Preservation Guidelines, the submitted photographic documentation must clearly provide evidence that accurately depicts the view and/or foliage as it existed from the property owner’s viewing area on the date the photograph was taken. In addition, the Guidelines state that the submitted photograph shall be verified by Staff by means of a site visit to assess the view impairment.
Staff has reviewed the photographs and has met the Applicants’ teenage children who are shown in the photographs. Furthermore, Staff has visited the site to verify the viewing area. Staff is satisfied that the preservation photographs are authentic in that they are depicting a view in 1997 and 1998 from the Applicants’ property and that the persons in the photographs are the Applicants’ children.
The Applicants listed the Ficus hedge and other “unknown trees” on the original Notice of Intent to file (NOI), submitted on April 21, 2005. During the mediation phase of the View Preservation Permit process, it was determined that the unknown trees were Ficus, King Palms, and a Brazilian Pepper, all of which originated on the Appellants property. At no time during the mediation period, which extended from May 27, 2005 to November 10, 2005, did the Appellants contest their ownership of the Brazilian Pepper. Thus, Staff had no reason to further evaluate the origin of foliage prescribed for trimming in the Director’s signed decision. However, during the public hearing, the Appellants stated, for the first time, that the Brazilian Pepper was not located on their property. As a result, the Planning Commission approved Staff’s recommendation for the foliage trimming, but directed no action on the Brazilian Pepper tree.
After the March 28, 2006 Planning Commission meeting, Staff conducted a closer inspection of the Brazilian Pepper tree to confirm ownership. As shown in the attached photographs (see Exhibit I), the base of the tree is located along the mutually shared rear property line between the Applicants’ deck and the Appellants’ chain-link fence, at least eight feet from the side property line shared with the Appellants’ adjoining neighbor. The root system of the tree is located under the Applicants’ deck. Based on this inspection, Staff believes that the tree is located on the Applicants’ property. Unless the Appellants provide proof of ownership of the tree, it is not necessary to add the tree to the decision and the Applicants can trim the tree as they choose.
Foliage located on 29202 and 29214 Posey Way was not included in the Staff Report because neither of these properties were listed as Foliage Owners on the Applicants’ formal application. View-impairing foliage did exist on the properties located at 29202 and 29214 Posey Way, however, the Applicants believed that private agreements would be reached with these neighbors, to have the foliage trimmed. Conversely, several conversations throughout the mediation phase produced a lack of results with the Appellants, which lead the Applicants to file their formal View Preservation Permit application naming only Mr. and Mrs. Jordan as the identified Foliage Owners.
Inadequate Foliage Assessment:
During the mediation phase of the permit process, Staff is not required by the Guidelines to visit the Foliage Owner’s property. Any site visits that do occur are usually held on the Applicants’ property in order to determine how to restore the view from the Applicants’ viewing area. However, if a Foliage Owner requests that Staff visit their property, then Staff will do so with an invitation. At no time during the mediation phase did the Appellants’ contest the foliage in question nor did they request that Staff visit their property. Regarding the adjacent neighbors, as stated above, an evaluation of view-impairing foliage for 29202 and 29214 Posey Way was not necessary as the Applicants did not name them in their View Preservation application since they were in pursuit of private agreements with these neighbors to have the foliage trimmed.
Exclusion Of Neighbors:
It is up to the Applicant to identify the properties, which contain foliage that they wish to pursue through a formal view preservation application. Nonetheless, Staff did not recommend inclusion of the other properties since the Applicants made it clear to Staff that private agreements were attained, or were in the process of being attained, between the Applicants and these neighbors.
Viewing Area Disagreement:
Based on visits to the Applicants’ property, Staff determined that the Applicants’ viewing area, or “best and most important view,” is taken from the living room. This view is similar to the view from the rear yard, just outside of the living room, which is essentially a 120 degree view, extending from the left field of view, which includes Catalina Island, moving to the far right with views of the Pacific Ocean and Santa Monica Bay. Staff recognizes that rooflines and structures on Posey Way are also within that view, however, the majority of the view would become unimpaired with the recommended trimming of the foliage on the Appellants’ property.
Staff believes that the decision of the Director (dated December 7, 2005) and the subsequently modified decision made by the Planning Commission (dated March 28, 2006) are consistent with the Development Code and View Restoration/Preservation Guidelines. Furthermore, Staff believes that the Appellants have presented no new issues or information to warrant an overturn of the Planning Commission decision. As a result, Staff recommends that the appeal be denied and that Planning Commission decision as summarized in the attached Resolution 2005-16 be upheld.
The Appellants have submitted an appeal fee of $1,081, which covers City Staff’s time for processing the appeal case. Should the Appellants prevail in the appeal case, then the total appeal fee of $1,081 shall be returned to the Appellants and the City shall bear the cost of processing the case.
In addition to Staff’s recommendation, the following alternatives are available for the City Council’s consideration:
1. Uphold the appeal and overturn the Planning Commission decision.
2. Identify issues of concern with the Resolution, provide direction to Staff, and continue this matter to a forthcoming date.
3. Identify issues of concern with the Planning Commission’s decision and remand the matter back to the Planning commission for further assessment and deliberation.
Joel Rojas, AICP, Director of Planning,
Les Evans, City Manager
C.C. RESOLUTION NO. 2006 - __
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES DENYING THE APPEAL REQUEST; THEREBY UPHOLDING THE PLANNING COMMISSION’S DECISION TO AFFIRM THE DIRECTOR OF PLANNING, BUILDING, AND CODE ENFORCEMENT’S APPROVAL TO APPROVE VIEW PRESERVATION PERMIT NO. 78, WHICH WOULD REQUIRE THE TRIMMING OF CERTAIN FOLIAGE LOCATED AT 29258 POSEY WAY THAT IS SIGNIFICANTLY THE VIEW FROM 6755 EL RODEO ROAD
WHEREAS, on May 27, 2005, both parties attended a pre-application meeting and no private agreement was ultimately reached; and,
WHEREAS, on November 10, 2005, Mr. and Mrs. Park, filed a formal application requesting a View Preservation Permit (“Permit”) be approved in order to preserve the view from their property that is significantly impaired by foliage owned by Mr. and Mrs. Jordan at 29208 Posey Way, in the City of Rancho Palos Verdes; and,
WHEREAS, on December 7, 2005, the Director of Planning, Building and Code Enforcement, issued a Notice of Decision (NOD) for View Preservation Permit No. 78, and copies of the NOD were mailed to the applicant and the foliage owners; and,
WHEREAS, on December 22, 2005, within the fifteen day appeal period, Mrs. Jordan, the foliage owner, filed an appeal fee to appeal the Director’s decision for VPP No. 78 to the Planning Commission; and,
WHEREAS, after notice issued pursuant to the requirements of the Municipal Code, the Planning Commission held a public hearing on February 28, 2006, at which time the Planning Commission decided to continue the public hearing to March 14, 2006; and
WHEREAS, the Planning Commission held a public hearing on March 14, 2006, at which time the Planning Commission decided to continue the public hearing to March 28, 2006; and
WHEREAS, after notice issued pursuant to the requirements of the Municipal Code, the Planning Commission held a public hearing on March 28, 2006, at which time all interested parties were given an opportunity to be heard and present evidence on the notice of appeal; and
WHEREAS, the Planning Commission denied the appeal and approved Resolution 2006-15 for trimming and or removal of foliage on the Appellants’ property; and
WHEREAS, the Jordans filed fees and grounds for appeal on April 12, 2006 to have the case heard by the City Council to have the Planning Commission resolution rescinded back to City Staff for further review.
NOW, THEREFORE, THE PLANNING COMMISSION OF THE CITY OF RANCHO PALOS VERDES DOES HEREBY FIND, DETERMINE, AND RESOLVE AS FOLLOWS:
Section 1: The Applicants at 6755 El Rodeo Road has a view, as defined by Section 17.02.040 of the City’s Development Code of the Santa Monica Bay and the Pacific Ocean.
Section 2: The Applicants’ primary viewing area, as defined by Section 17.02.040 of the City’s Development Code, is from the living room and outdoor patio area.
Section 3: The Applicants’ view is significantly impaired by a Ficus hedge, three (3) Ficus tree(s), and two (2) King Palms on the property located at 29208 Posey Way (Jordan property).
Section 5: Based on the evidence provided, the subject trees at 29208 Posey Way exceed the ridgeline of the primary structure and significantly impair the view from the Applicants’ viewing area. Based on the accepted documentation photograph provided by the Applicant, the City has determined that the subject foliage at 29208 Posey Way significantly impairs the Applicants’ view.
Section 6: The subject property is located less than one thousand (1,000) feet from the Applicants’ property. The Foliage Owners’ property at 29208 Posey Way is immediately adjacent to the Applicants’ property at 6755 El Rodeo Road.
Section 7: As evident in the Applicants’ photograph dated in December 25, 1997, the subject foliage did not exist as view impairing foliage in November 1989, or sometime thereafter.
Section 8: Trimming of the subject foliage will not cause an unreasonable infringement on the privacy of the Foliage Owners because the viewing impairing foliage subject to trimming is above the Foliage Owners’ roofline. Furthermore, the Ficus hedge, maintained at its prescribed level, will provide screening of the rear property at 29208 Posey Way. As such, trimming or removal of the foliage will not cause unreasonable infringement of the privacy of the Foliage Owners.
Section 9: Trimming or removing the subject trees as identified in the attached Exhibit “A”, is necessary in order to preserve the Applicants’ view.
Section 10: Pursuant to Section 15300 of the California Environmental Quality Act, the proposed project is categorically exempt under Class 4 of that section because the work required to restore the Applicants’ view does not include the removal of scenic and mature trees as identified by the City of Rancho Palos Verdes General Plan (Visual Aspects; Figure 41).
Section 11: Section 1094.6 of the California Code of Civil Procedure governs the time within which the judicial review of the decision reflected in this Resolution, if available, must be sought.
Section 12: For the foregoing reasons and based on the information and findings included in the Director’s Notice of Decision, meeting minutes and other records of proceedings, which are attached hereto by reference, the City Council of the City of Rancho Palos Verdes hereby denies the appeal, thereby upholding the Planning Commission’s decision and approves View Preservation Permit No 78 to trim or remove foliage at 29208 Posey Way in order to preserve the view from 6755 El Rodeo Road, as requested and provided for in the conditions outlined in the attached Exhibit "A".
PASSED, APPROVED, AND ADOPTED on the 6th day of June 2006.
STATE OF CALIFORNIA )
I, Carolynn Petru, City Clerk of the City of Rancho Palos Verdes, hereby certify that the above Resolution No. 2006-__ was duly and regularly passed and adopted by the said City Council at a regular meeting held on May 2, 2006.
Resolution No. 2006-__ - Exhibit "A"
1. The Ficus hedge and Ficus trees:
Trim the foliage to reflect the condition shown in the documentation photograph dated December 25, 1997 (Exhibit E of the Staff Report), which is the same level as the solid yellow line illustrated in Exhibit F of the Staff Report or at a height level of approximately 12 feet, as measured from the top of the slope of the Foliage Owner’s property, or to the top of the Applicants’ rear-yard fence, whichever is lower.
2. The King Palms:
Trim the foliage to reflect the condition shown in the documentation photograph dated December 25, 1997 (Exhibit E of the Staff Report), which is the same level as the solid yellow line illustrated in Exhibit F of the Staff Report
3. The Foliage Owner shall be responsible to maintain the foliage in such a manner as to not significantly impair the Applicants’ view by trimming the foliage specified in this permit on a semi-annual basis, beginning 6 months after the initial trimming of the foliage is completed and verified by Staff.
4. If any of the subject tree(s) die as result of the trimming, then the tree(s) shall be removed subject to Section 8.24.060 (property maintenance) of the RPV Municipal Code.
5. If the required tree trimming or removal work as specified herein is not completed within 90 days, then the City of Rancho Palos Verdes shall forward the matter to the City Attorney for resolution. Should it be necessary that the City Attorney requires a court order to enforce the City’s decision and in the event that the City is required to perform the work using a bonded tree service, the foliage owner will be billed for all City expenses incurred in enforcing the City’s order and a lien or assessment may be recorded against the Foliage Owner's property if the invoice is not paid.