D R A F T

MINUTES

RANCHO PALOS VERDES CITY COUNCIL

REGULAR MEETING

MAY 4, 2004

The meeting was called to order at 6:00 P.M. by Mayor Peter Gardiner at Fred Hesse Community Park, 29301 Hawthorne Boulevard, and was immediately recessed to the closed session. The meeting reconvened at 7:02 P.M. and Mayor Gardiner stated that the closed session meeting took longer than anticipated and requested that the budget workshop be continued to another meeting. Councilman Long moved, seconded by Councilman Wolowicz, to continue the budget workshop to a future date and time and that the regular meeting be called to order. There being no objection, Mayor Gardiner so ordered.

Roll call was answered as follows:

PRESENT: Clark, Long, Stern, Wolowicz and Mayor Gardiner

ABSENT: None

Also present were City Manager Les Evans; Assistant City Manager Petru; Assistant City Attorney Carol Lynch; Director of Finance Dennis McLean; Director of Planning, Building, and Code Enforcement Joel Rojas; Director of Public Works Dean Allison; Senior View Restoration Coordinator Nelson; City Clerk/Administrative Services Director Jo Purcell; and Recording Secretary Denise Bothe.

FLAG SALUTE:

Councilman Wolowicz led the flag salute.

MAYOR’S ANNOUNCEMENTS:

Mayor Gardiner requested that the Mayor’s announcements be moved in front of the City Manager’s Report. There being no objection, Mayor Gardiner so ordered.

RECYCLE DRAWING:

Mayor Gardiner announced the recycle winners for the month of April, Bob Gifford and Fred Koehler, who will receive checks for $250, which represents a year of free refuse service. He encouraged everyone to recycle.

APPROVAL OF AGENDA:

Councilman Stern moved that Item 22, Council Direction to the Traffic Committee, be moved up to coincide with the City Manager’s Reports.

There being no objection, Mayor Gardiner so ordered the approval of the Agenda as modified.

PUBLIC COMMENTS:

Kathy Snell stated that last Monday, the fissure broke loose under Palos Verdes Drive South (PVDS), noting that one side sunk and that the other side moved in the opposite direction; expressed her belief that all of PVDS needs to be resurfaced as opposed to patching; noted her concern for the safety of those traveling on this roadway; addressed her opposition to the pipes remaining along the side of the road; and stated that the ski jump should be corrected and leveled with the rest of the roadway.

Ms. Snell commented on the forthcoming fire season; stated that for the last 4 years, City staff has told the L.A. County Fire Marshal not to disk across the street from where she lives; and highlighted her concerns for the safety of the residents in this area of the hill -- reminding the City that the 1973 fire consumed several homes.

MAYOR’S ANNOUNCEMENTS:

Mayor Gardiner commented on the series of mix-ups that lead to a problem with one of the Traffic Committee meetings; explained for the public that individual members of the City Council cannot make decisions on behalf of the entire body; advised that policy direction in the City comes from the City Council when it sits in its duly noticed session; that the day-to-day operations of the City is managed by the City Manager; and that City Council provides policy decisions that provide guidance under which the City Manager conducts City business.

CITY MANAGER REPORTS:

City Manager Evans explained that last weekend, he became aware that there was a perceived problem with the noticing of the Traffic Committee meeting, which was scheduled for Monday, April 26, 2004; advised that he checked with the Public Works Director and verified that there were some problems with noticing activities; stated that the original signs that were erected noticing the meeting for the Eastview Traffic Calming Program had the incorrect date; that when the correct date was put on the sign, the next thing that happened was that staff had neglected to put the meeting venue on the sign. He advised that this situation was corrected, but that over the weekend, because of the weather, some of the signs were destroyed. City Manager Evans stated that he made the decision to advise the Traffic Committee chair that it would be best to take public testimony at the meeting on April 26th; and then to delay any decision on the matter until staff was sure that the noticing was correct and that everyone had an opportunity to speak. He noted that he had contacted City Council members who had contacted him because of this problem; that he had advised the Council members of what he had done to correct the situation and to delay any decision on the part of the Traffic Committee, but explained that somehow the message was misinterpreted that the Mayor and City Manager had decided to remove the item from the agenda and that public testimony would not be taken at the meeting. Taking full responsibility for the misunderstanding between himself and the Traffic Committee chair, he pointed out that this was not the message he intended to convey.

As a result of these series of errors, City Manager Evans explained that this addendum item has been placed on the Council’s agenda for this meeting, generated by the Mayor and Councilman Stern who felt there needed to be some specific direction given to the Traffic Committee on what the City Council would like them to do in its role as advisors on traffic matters. He advised that he invited Traffic Committee Chair Ava Shepherd to be present at this meeting to hear firsthand Council’s direction and to participate in this discussion. He added that there are other members of the Traffic Committee present also.

Council Direction to the Traffic Committee. (1204 x 1502)

City Manager Evans presented staff report and the recommendation to direct the Traffic Committee to receive a complete presentation of the proposed South Eastview (Mira Vista) Traffic Calming Plan at their meeting of May 24, 2004, hear testimony from the public on the Plan and determine whether or not the Plan should be modified based on:

The information, public testimony and other input obtained either prior to or at any of the public meetings where the Plan has been addressed;

  1. Discussion at the Joint meeting with the City Council on March 30, 2004;

2. The proposal of the Sheriff's Department to implement an enhanced traffic education and enforcement program;

3. The request from the President of the Terraces HOA that Summerland Avenue be included in the Plan;

4. The recent request of the Mira Vista HOA that more speed humps be included in the Plan;

5. Or, for any other proper reason.

The Traffic Committee should not limit its review, testimony, input or discussion to any specific or narrow issue of the Plan, but should address any and all issues that were appropriate and consistent with evaluating all the public input, and reaching a recommendation based upon such input and discussion.

Further, direct the Traffic Committee to forward their recommendation for the Eastview Traffic Calming Plan to the City Council at such time as they feel all stakeholders have had adequate input into the Plan and that the Plan offers the best solution for the City.

City Manager Evans expressed his belief that the joint meeting conducted last month had resulted in good discussion but that it was now understood Council’s direction needed to be more refined.

Councilman Long noted that the addendum summarized the staff report; and pointed out that this discussion should not be to address the substance of the traffic problems but to address the recommendation.

Mayor pro tem Clark voiced his concern with the improper notification and stated that the staff report had not offered a remedy, questioning whether the Traffic Committee had been given guidance as to what it should do.

Director Allison expressed staff’s belief that the information on the posted signs was flawed; noted that staff relied on using recycled signs; and advised that new signs have been ordered and that the practice of using the recycled signs will no longer be attempted. While staff has made every attempt to overcome the noticing problem, Director Allison explained that staff cannot guarantee that the wind will not negatively impact future signs, but pointed out that the City does not strictly rely on signs as a single means for notification. He added that staff is planning to mail out numerous postcards to the residents living in a certain distance from Eastview.

Mayor pro tem Clark expressed his belief that there were many residents interested in this matter who do not live in that stated distance who would like to be informed of the meetings; and questioned whether the postcard activity would be adequate.

Director Allison stated that the postcards will be mailed to those residents living from the north end of Palos Verdes Drive East (PVDE) to the switchbacks and all the neighborhoods along Palos Verdes Drive East, the Eastview area, estimating that 4,000 postcards will be sent out in regard to this matter.

City Manager Evans noted that staff would be doing some other things with these postcards, such as advising the residents on how to access the City’s website to obtain copies of the Traffic Committee agendas, staff reports, get on the listserve and the offering of more pertinent information on the City’s website. He commented on the plans to have a representative from the City Attorney’s Office present at the meeting to discuss and answer questions regarding the Brown Act; and noted that this would give the City an opportunity for the City Attorney’s Office to train staff and commission/committee members on unusual meeting occurrences.

Mayor pro tem Clark suggested that the City institute a practice at the beginning of each commission/committee term for new chairs/vice-chairs a leadership session focused on issues concerning Brown Act requirements, meeting protocol, issues to avoid, etc.

Traffic Committee Chair Ava Shepherd noted her support for a leadership workshop for the committee chairs/vice-chairs and for the implementation of a Traffic Committee web page on the City’s website; and stated that these unfortunate series of events have brought about some improvements that will be helpful to the residents.

Carol McKinniss, 3274 Crownview Drive, noted her gratitude for those who volunteer their time on various City committees; and expressed her belief that the Traffic Committee had not conducted a fair and independent process and that some of its members have a personal interest in traffic matters. She noted her confusion and distrust with whether a no left-turn at First Street will be included in the 4-Step Plan; and expressed her belief that because of some of the communications between the City and the City of Los Angeles on this matter, staff has already decided how this issue would be resolved. She expressed her belief that it is only the school traffic that makes this a heavily traveled road.

In response to Councilman Stern’s inquiry regarding closed sessions, City Attorney Lynch stated that the Traffic Committee only meets in open public session, that it has no closed session meetings.

Director Allison explained that First Street is still located in the City of Los Angeles and that City staff is making every attempt to keep the City apprised of the issue within this City; and he stated that City staff has acted appropriately in its communications with the City.

Mayor pro tem Clark highlighted the speaker’s reference to a perception that the Traffic Committee has been compromised by its membership and questioned if the City has any restrictions in place whereby residents may not serve on a particular body. In response, City Attorney Lynch explained that Council has not established any restrictions as far as zones within the City where a resident may not serve on any committee.

Mayor pro tem Clark commented on the rule for recusal should a committee member live within a certain distance of a project or have a potential financial conflict of interest.

City Attorney Lynch noted that the recusal rule applies to the Traffic Committee; explained that the rule established by State law is that a person is presumed to have a conflict of interest if their property is within 500 feet of a proposed project; and noted that because of the parameters of this traffic flow, this case presents a more difficult gauge with which to find a conflict of interest; but noted that it is clear that if a Traffic Committee member lives in this neighborhood, they should recuse themselves from consideration. She highlighted the Equestrian Committee’s recusal rule for conflict of interest matters.

Traffic Committee Chair Ava Shepherd stated that the question of recusal was put forth to the City at the last meeting, but that the City Attorney’s Office at that time was not able to find any particular law that would require a Traffic Committee member to recuse themselves, but noted her concern with the perception of conflict of interest.

Councilman Long pointed out that there are many people outside of the neighborhood that routinely travel this roadway.

City Attorney Lynch stated that she would research the recusal structure further and get that information back to Council, staff and the Committee.

Joan Russell, 28978 Palos Verdes Drive East, noted her support for conducting the meeting at Miraleste Middle School; expressed her belief that a lot of the traffic is generated from the school activities; and stated that the website would be very helpful in curbing the residents’ frustration.

Sherri Poma, 28978 Palos Verdes Drive East, commented on the unfortunate events that occurred to make the residents angry and mistrustful of the Traffic Committee and the City; and suggested that the entire process start all over from the beginning. She stated that it still is not clear whether First Street will be included in the Plan.

Ms. Poma clarified for Mayor pro tem Clark that she was told by Mr. Jones at the door Monday evening that the matter had been taken off the agenda; stated that the residents should be given a copy of the plans; and expressed her belief that the studies were not fair or honest. She stated that with the implementation of the Plan, Western Avenue would be negatively impacted.

James Jones, 2747 Vista Mesa Drive, Traffic Committee member, stated that the Traffic Committee needed Council direction to be clarified; commented on the poor communications that resulted in these unfortunate events; and explained that 10 minutes before the Monday evening meeting was to begin, he stood outside the meeting room as a courtesy to those attendees coming to the meeting to let them know that that matter, according to his understanding, was not going to be discussed. He advised that he went back into the meeting room once the meeting started and that it was evident people outside were getting the message that the matter was not going to be discussed and that the residents were not happy with the cancellation. He expressed his understanding that there was no intent to close off First Street, only that it was discussed and ruled out. He expressed his belief that broad notification is necessary, and pointed out that anyone wishing to know what is on the Traffic Committee agenda can freely obtain a copy of the agenda from the City – pointing out that there had been no attempt to hide the Committee’s agenda. He stated that there have been no closed session meetings by the Traffic Committee. He advised that "traffic calming" is a term that is used worldwide; and noted that the 4-step Plan which was published took into consideration all those who may be impacted by the changes. He stated that the Traffic Committee has worked very hard on this issue and that it has attempted to include all the best evidence in making its decision. He noted that if the Council wants the Traffic Committee to hold more public hearings on this issue, the Committee would be willing, but pointed out that the Committee may just come up with the same decision.

Councilman Stern asked City Attorney Lynch to provide input on the act of pulling an item off an agenda. In response, City Attorney Lynch explained that a body can take an item off the agenda as an official act of a body in public session, but added that the public does have an opportunity to address that item. She noted that such as in this case, there are times when it has been determined that a notification error has been made and that a certain matter must be pulled from an agenda until the proper posting/notification procedure has been met.

Councilman Wolowicz noted his support for the improvements to the City’s website and suggested that a permanent statement be included on the website agendas about the general rules/procedures for pulling items off an agenda.

Barry Hildebrand, 3560 Vigillance Drive, thanked Councilman Wolowicz for attending the Ladera Linda Homeowners Association Annual meeting and for providing a nice presentation. He expressed his belief that the only people that should be officially notified of the next Traffic Committee meeting should be those who live in Mira Vista, the condominiums on Western Avenue at Summerland Avenue, the property owners across the Summerland Avenue alley from the condos, and all those residents who live on the streets that empty out onto Miraleste Drive, below Via Colinita –that anything more than that would be overkill and a waste of taxpayer funds. Mr. Hildebrand stated for Mayor pro tem Clark that these residents are the only stakeholders in this matter. Mayor pro tem Clark noted his opposition to that opinion.

Libby Aubrey, 29433 Indian Valley Drive, noted her support of the Traffic Committee’s efforts thus far; stated that there is need for Brown Act education for the various commissions/committees; and suggested that the Traffic Committee meetings be posted on the community bulletin board on Channel 3, believing that this will reach a greater mass than that of the postcards. She noted her preference to conduct the Traffic Committee meeting at the Hesse Park where there is a better sound system and stated that the Hesse Park location creates a better controlled environment.

Kristine Denton thanked the Public Works staff and the Traffic Committee for their efforts thus far; with the use of a map, she highlighted the areas that were notified for various traffic calming discussions; pointed out that notification activities have exceeded more than what is legally required; and expressed her support of City staff keeping L.A. City staff informed on what is going on with this issue. She stated that when the Traffic Committee passed the Plan, there was no one on the Committee who lived in the subject neighborhood. Ms. Denton explained that the request from Mira Vista Homeowners Association is not only for more speed humps, but also for center island entrance treatments coming into the community. She asked that both these issues be addressed; and noted her support for conducting the meeting at Hesse Park.

Ms. Denton noted for Councilman Long that she was speaking on behalf of the Mira Vista HOA and also as a resident and clarified that the handout she distributed to Council was a memo that had been circulated in the community – noting that it contained false statements. She stated that she does not know who wrote the inaccurate memo. Ms. Denton noted that the Mira Vista HOA contacted numerous HOA’s in the City to answer any questions and to provide them with a copy of the Plan.

Mayor Gardiner noted that those interested in this matter could look at the Plan on the City’s website; and that they could attend the meetings and provide input.

Councilman Stern moved, seconded by Mayor pro tem Clark, to adopt staff recommendation and that the meeting be conducted at Hesse Park so that it can be taped.

Councilman Long noted his support for the motion. He stated that, in essence, Council is implicitly saying that they disagree with a portion of the Traffic Calming Manual that would define notice only to those people in the precise neighborhood being affected and the areas where the traffic is increased -- pointing out that the Traffic Committee appropriately followed the existing City Council policy. He stated that he had been persuaded that there had been a problem in not giving notice to those residents who are affected by their travels in the City, but agreed that the result could be the same or very similar even after considering the additional evidence. He expressed his belief that those living in the affected neighborhoods should be given heavier consideration than those who only travel through the area.

Councilman Stern stated that it is up to the Traffic Committee to re-evaluate parts of this issue and noted that Council is not dictating an outcome.

Mayor Gardiner agreed that this is more of a procedural matter.

Mayor pro tem Clark stated that the City Council will make the final decision.

There being no objection to the motion, Mayor Gardiner so ordered.

Councilman Wolowicz stated that a lot of hard work had gone into this process; that this should not cast any negative shadow on that hard work performed by the consultant and by the Traffic Committee and noted that he is appreciative of the efforts that have gone into this project thus far.

RECESS AND RECONVENE

The meeting was recessed at 8:40 P.M. and reconvened at 8:50 P.M.

Item No. 15 was considered out of Agenda order.

Resol. No. 2003-32: Appeal of View Restoration Permit No. 138. (1806 x 1203)

City Clerk Purcell highlighted the late correspondence from Karen and Ray Perrault and a late email correspondence that had been provided to the Council.

Mayor Gardiner opened the public hearing on the appeal of the Planning Commission’s decision regarding View Restoration Permit No. 138.

Senior View Restoration Coordinator Nelson presented staff report and the recommendation to ADOPT THE PROPOSED RESOLUTION DENYING THE APPEAL, THEREBY AFFIRMING THE DECISION OF THE PLANNING COMMISSION AND APPROVING VIEW RESTORATION PERMIT NO. 138 UPON FINDING THAT ALL APPLICABLE FINDINGS HAVE BEEN CORRECTLY MADE AND ALL PROVISIONS OF SECTION 17.02.040 HAVE BEEN COMPLIED WITH.

Senior View Restoration Coordinator Nelson explained that in making the determination, she stood at the viewing area level, at the elevated outdoor patio above the pool; that another City staff member was in the boom; that they utilized a two-way radio to communicate; that the boom was lifted to the approximate level of the viewing area; and that that staff member took pictures to show what was actually visible on the other side of the trees. She stated that staff essentially tried to put the boom at the same elevation as the viewing area.

Councilman Wolowicz questioned the location of the boom bucket over the backyard.

Ms. Nelson noted for Councilman Wolowicz that the truck was parked on the street at the corner, just outside where the trees are located; stated pictures had been taken from that area; and advised that staff had determined that yes, one could see the ocean and the coastline from the other side of those trees.

Ms. Nelson noted for Mayor Gardiner that the large tree in the background of the photograph was laced at the time the pictures were taken; that the tree is laced annually; and that the tree is subject to the City’s view ordinance.

She noted for Councilman Stern that she had not seen the letter written by the Perraults.

Councilman Stern noted that the Perrault letter indicates "…we would like to go on record to say that we do not now have, or ever did have, any agreement, written, verbal or implied, between the Perrault family and the Quall family concerning the trimming of our trees. Accordingly, we hereby state that we, or any person in control of said trees in the future, do not agree to trim, feather, lace or remove said trees unless we do so for our own personal reasons."

In response, Ms. Nelson stated that that was not what the Perraults had verbally indicated to staff in the first pre-application meeting and not what was verbally indicated to staff at the first public hearing before the Planning Commission.

Ms. Nelson noted that when the pictures were taken, one could see the ocean through the trees on that day, but that since then, the row of trees, along with the trees on the Perrault property, have grown in heavily and that one could barely see the ocean at this time. She noted that the Planning Commission agreed with staff and that the Commission had issued a decision that the trees be laced, trimmed or removed.

Ms. Nelson stated that in the photographs taken on this date, one could see the difference in growth from 15 months ago when the first photographs were taken. She noted that the ocean could be seen when standing at a certain location. She explained that an old photograph was just found looking through the Tentative Tract Map (TTM) file for this property; advised that the public hearings for the TTM occurred around 1976 to 1978 and that the photographs were used by staff then to show the site had little foliage.

City Attorney Lynch opined that it is not appropriate for the Council to try to enforce its ordinances, which the City is charged with enforcing, in deference to a contract clause provision; and that this issue is now between the applicant and the HOA.

Councilman Stern stated that it is not appropriate for this City to be in the business of interpreting private contracts or CC&R’s; suggested that it might be appropriate to put some wording in the City’s view guidelines to alert residents to the fact if they claim contractual rights that address view, those will not be adjudicated by the City; and stated that the City only adjudicates its ordinance. He further suggested that the resolution should clearly indicate that the City does not make any determination on the claim that the CC&R’s or any other private contract precludes a City ordinance.

Councilman Stern stated that on Saturday, he met with representatives of the HOA, Ms. Campbell and Dr. Melendez. Councilman Stern questioned if the Perrault vegetation beyond the HOA trees is subject to the City’s view ordinance. Director Rojas stated that if the applicant applied for a permit, the Perrault vegetation would be subject to being cut.

City Attorney Lynch mentioned that if the foliage was pre-existing as of the time the subdivision/lot was created, assuming all this happened before the ordinance was adopted, then that foliage, if it was already existing and already impaired a view, that view impairing foliage would be allowed to remain.

Councilman Stern questioned if there is any photo that reflects any vegetation that impaired the view when the lot was created in 1979.

City Attorney Lynch stated that another provision of the ordinance states that even assuming if one has foliage that impaired a view as of that time, that foliage was still not allowed to grow taller and increase the impairment and diminish the view.

Kathy Campbell, Rancho Palos Verdes Estates resident for over 18 years, Chair of the Architectural Review Committee, stated that her comments would be made on behalf of herself as a resident and as a member of the HOA. Ms. Campbell stated that the applicant cannot argue that he has a view that needs to be restored because he expressly consented to the view impairment when he purchased his property – noting that there is documentation to support that agreement and waiver. She advised that the applicant admitted at the Planning Commission meeting that he would have a better view after the trees were trimmed than what he had when he first purchased the property. She pointed out that the City’s ordinance was designed to protect reasonable expectations; advised that the HOA has acted in the past to restore views within its community; that the cases in which the HOA has failed to find view obstructions has uniformly involved instances where a homeowner has tried to acquire, improve or enhance their view at the expense of the entire community by destroying community assets for personal gain. Ms. Campbell stated that it is not reasonable to purchase a residence without a view and then seek to acquire a view, especially after one has signed a waiver, CC&R’s, and an agreement to maintain the integrity of the entryway trees. She pointed out that the HOA is not asking to deprive the applicant of his rights; stated that once these trees are drastically cut, there is no legal remedy that can or will restore the entryway landscape that is widely viewed on an everyday basis by the community at large; and noted that once these trees are cut, there is nothing to stop the applicant from selling the home.

Ms. Campbell stated that if the City were to require the HOA to trim or remove the trees, the City would be impairing the HOA contract that exists between the HOA and the applicant and that that would be a misuse of the City’s ordinance. She expressed her belief that staff report fails to make the mandatory findings under Section 17.02.040C2c of the ordinance because of relying on inaccurate information that dealt with a defunct plan for a 280-unit town home development on this site. She stated that the HOA development is 76 units, a planned unit development for which construction began in late 1983, early 1984; that to the best of her knowledge, it had to be rezoned to single-family residential; and that as a condition of approval, a new grading and landscaping plan had to be submitted than what was required for the defunct 280-unit project. She stated that both the landscaping and grading plans required the approval of the City; and that the approval of the landscaping was a prerequisite to the approval of the entire development. She stated that the landscaping plan was approved on October 18, 1983; and that since they were approved, the landscaping lots were created concurrently. She noted that the declaration was recorded on April 25, 1985.

Ms. Campbell advised that there is also reason to believe that the foliage may have been present at the time the lots were created for this development; pointed out that the ordinance requires that the applicant establish that foliage did not exist before the lots were created – expressing her belief that neither the applicant nor the City can bootstrap into this finding by using different reports from a different developer for a different project; and stated that the City should use accurate records related to this development. Even if the foliage was present when the lots were created -- stating that the HOA is not conceding this point -- the ordinance provides the view restoration only when there is significant view impairment from the viewing area. She stated that staff report concludes without analysis that the view impairment is significant; that the HOA rejects that conclusion because the trees in question are located at the very edge of the view frame; and noted that foliage located in the center of the view frame is more likely to be found to create a significant view impairment than the foliage located on the outer edge of the view frame.

Ms. Campbell pointed out that even if the trees are trimmed, the trees across the street would continue to impair the ocean view -- pointing out that staff report ignores this issue even though the background prepared by staff addresses this problem; stated that the applicant in his request for a permit admits that the trees are over 60 years old. She expressed her belief that the ocean view is not taken from the viewing area, that the photos relied upon by staff were not taken from the viewing area. She noted that there is proof that a potential home purchaser who viewed the home in 1997 had declined to purchase the house because of the lack of an ocean view; and noted that there is a letter that indicates that an ocean view was not visible in 2000. She advised that the burden is on the applicant; and that it is her opinion the applicant has not met this burden.

Ms. Campbell expressed her belief that the conditions of approval imposed by the Planning Commission exceed the permissible remedies under the July 2003 guidelines for the City’s View Restoration Ordinance and that it results in unnecessary, burdensome, additional expense to the HOA, and ultimate death of these trees. She noted confusion with the applicant seeking to ultimately destroy the entryway landscaping that is enjoyed by the entire HOA. At a minimum, she stated that the Council must require that the mandatory findings be made; that the applicant and the City must produce correct and accurate records relative to the foliage dates; and that the City should require that the photos which were used to document this view be accurate by allowing the HOA to provide input into the placement of the camera to document this view. She stated that the City Council should direct staff to deny all view restoration applications when there has been an expressed waiver and consent to view impairment.

Ms. Campbell advised that the HOA has made many attempts to resolve this issue on numerous occasions by offering to remove Tree No. 1 from the view frame -- an offer that goes beyond what is required by the ordinance; and noted that this removal would dramatically improve the applicant’s view. She questioned whether photos, which pre-date an application, should be used to establish a view.

Senior View Restoration Coordinator Nelson explained that the photos were taken in the pre-application process so staff could see exactly what was being requested; and that these pictures were not used to establish the viewing area, that they were only used as an attempt to see what was beyond the trees.

Councilman Stern questioned if the HOA has any particular preference for the trees in question.

In response to Councilman Stern’s inquiry, Ms. Campbell stated that the HOA is willing to remove Tree No. 1 and willing to trim or feather the remaining trees; and stated that heavily lacing Tree Nos. 4 and 5 would result in destroying the trees. Ms. Campbell stated that there is something to be said for holding people to their word and discouraging disputes which result in litigation; explained that the waiver originated because it was in response to Proposition M and in response to a previous problem that the HOA had with someone buying a less expensive interior lot and then trying to remove all the common area trees to upgrade their view – pointing out the lack of fairness to the rest of the 75 property owners in the community. She reiterated that with respect to this particular lot, the buyer was fully informed and was aware that he waived his rights to an ocean view.

Dale Spiegel, 2 Paseo de Pino, stated that the City’s ordinance has a valid purpose, but that its purpose is ill-served and misapplied in this instance; and noted that Mr. Qualls walked into this situation on his own merit and knew he gave up any rights to an ocean view, a voluntary impairment. He stated that there are no pictures of this lot having an ocean view, that it never had one; noted that the trees were there before the house was built, before the grading of the lot occurred; and noted that all the HOA is asking is for the City to recognize this fact.

Councilman Long stated that this is a private contractual rights issue that the City should not be spending public funds on to enforce, that this issue involves the applicant and the HOA; and that there is no issue between the City and the HOA.

Councilman Stern stated that the Council is not making any determination as to the contractual rights within the CC&R’s, what they mean, or what rights the HOA has against the homeowner; and that the City’s resolution should make it clear that the City has not ruled one way or the other on the contract. He questioned if there are any materials in Council’s possession this evening that says when the lot was created.

Senior View Restoration Coordinator Nelson noted for Councilman Stern that Finding 7 notes when the lot was created, Section 7, page 147 and also page 127, noting that it was created in 1979.

Director Rojas noted that staff has double-checked the accuracy of that date.

Mayor pro tem Clark stated that a fundamental point is that the lot came into existence when the Tentative Tract Map was recorded and questioned if there is any proof of any foliage on this property at that time.

Mr. Spiegel noted for Mayor pro tem Clark that there is no proof of any foliage on that property at that time.

Dr. Ron Melendez, representing the HOA, stated that heavily lacing Tree Nos. 2 through 5 would endanger their health and impair their beauty; expressed the HOA’s belief that the photographs presented by staff do not accurately represent the view from the viewing area; and he distributed some pictures which he believed were straight out from the viewing area. He stated that he took the pictures from the cherry picker boom, angling downward, and placed the boom so that the bottom of the boom was about at the height of the grade level of the lot, not the viewing area. He stated that staff’s pictures and his are in stark contrast to each other and that his pictures illustrate that there is no quality view. He explained that the reason Tree Nos. 2 and 3 are involved are for purposes of restoring the city lights view, not the ocean view -- pointing out that the city lights view is the view to be had at this location. He stated that the HOA is willing to remove Tree No. 1 to restore that important city light view; expressed his belief that the removal of Tree Nos. 2 and 3 are in the very periphery of that view and that they do not add anything significant to the view; and stated that if the bottom parts of those trees were to be cut, it would give the tree a mushroom like appearance and look unappealing. He reiterated that the HOA has suggested feathering all the trees, noting that from the very beginning, the HOA has offered to compromise; and pointed out that this is unfair to the other residents in the community. Given that the hedge and eucalyptus trees beyond this community have substantially grown since staff took their pictures, he believes that the City should support the original compromise of removing Tree No. 1 and lacing Tree Nos. 2 through 5, or at the very least, to give the HOA the benefit of the doubt and have the view re-evaluated in a more scientific/professional fashion before making a decision that will permanently damage or destroy their landmark entryway.

Director Rojas noted for Councilman Stern that the hedge and eucalyptus would be subject to view restoration if an application were made.

Mayor Gardiner thanked Ms. Campbell for showing him around the subject site; noted that his impression was that there is an enormous view of the city and perhaps down toward Long Beach; and questioned if the Council, under the provisions of the ordinance, is allowed to find that there is not a significant view.

Director Rojas stated that the Council is permitted to make that finding if it so deems appropriate.

Councilman Long noted his concern that in that case, Council would be implicitly concluding that obliteration of an ocean view is not significant and asked if the City has ever made that conclusion on a view application. Staff was not able to cite a specific case.

Councilman Stern stated that the main issue is whether there is significant view impairment, whether it be ocean or city lights.

Reginal Qualls, applicant, stated that the property sales manager told him that there was a significant view on this site; that the view could be pursued through Proposition M to be restored; and expressed his belief that both the ocean view and the city lights view are significant. He stated that before the pictures were taken, there was a tremendous view and that because of this lengthy process, the foliage now blocks most of the views. He stated that he has the right to the ocean view as a taxpaying resident; and urged the Council to support the Planning Commission’s finding.

Councilman Stern asked Mr. Qualls if he has any photographs taken from his home that shows the ocean view from the viewing area.

Mr. Qualls responded that he handed over to the HOA and the Planning Commission the only pictures he had and that those pictures should be in his file with City staff.

Senior View Restoration Coordinator Nelson stated that most of Mr. Qualls’ photographs were taken from the upstairs master bedroom and one was taken from the kitchen.

Clara Duran-Reed, 30652 Palos Verdes Drive East, highlighted the importance of the views to the peninsula residents; and noted her concern with the precedent the Council will set if it should say that there is no significant view because the trees are on the edge. She stated that the Planning Commission took the position that there was a significant ocean view and that the only question should be how best to restore that view. She urged the Council not to set a precedent to further diminish these valuable views; and questioned at what point does one say that the ocean, Catalina, or the city lights is not that important and that the views should not be maintained.

There being no further audience input, Mayor Gardiner closed the public hearing.

Councilman Long moved to adopt staff recommendation and to deny the appeal.

Councilman Stern noted his preference to have the view guidelines before he moved forward on this issue.

For purposes of discussion, Mayor Gardiner seconded the motion.

Councilman Stern reiterated that the resolution should be modified to clearly state that the Council has not made any determination with regard to the contractual claims between the HOA and the applicant.

Councilman Long moved that the amendment to the resolution be included in his motion.

Councilman Wolowicz noted that he had visited this site; stated that the issue of view is very important to a homeowner; noted his discomfort that the applicant signed an agreement to abide by the CC&R’s – pointing out that it is his understanding Mr. Qualls not only signed that agreement once when he bought the home, but that he signed that agreement again when the wall issue came up. He stated that left to him on that one issue, he would side with the HOA; but stated that because this is not a City issue at this point, he would side with the Planning Commission to restore the ocean view. He stated that the issue regarding the CC&R’s could and should be tested in a court of law and noted that he is troubled that it may end up in litigation.

Mayor Gardiner noted his opposition to the motion; expressed his belief that the issue is not one of loss of view; stated that he does not believe the applicant has a significant view given the vast panorama that’s currently up there.

Mayor pro tem Clark stated that this case does center on whether the view is significant; that based upon the testimony and information provided, he stated that he is not compelled to believe that the peripheral view impacted by Tree Nos. 2 through 5 represent a significant view impairment; but that he does believe Tree No. 1, which the HOA has offered to remove to improve the homeowner’s view, is in his opinion part of a significant view.

Councilman Long noted his conclusion that there is a significant view impairment on this property.

RECESS AND RECONVENE

Mayor Gardiner recessed the meeting at 10:33 P.M. and reconvened the meeting at 10:38 P.M.

Councilman Long noted that he had not participated in this matter while he was a member of the Planning Commission.

Mayor pro tem Clark explained that the City Council in 1996 added to the ordinance a qualifier of significance and found that there were cases where applicants were attempting to exploit the ordinance to fundamentally create a clear-cut view from their property throughout this City; and that it became clear to the elected leadership of the City at that time and clear to those executing the provisions of Proposition M that a qualifier with reasonable judgment was necessary; and stated that for that same reason in this particular case, he firmly believed that the action as proposed by staff and the Planning Commission was not the appropriate action. He stated that the significant view impairment is not on the periphery; and that removing Tree No. 1 clears up any question of significant view impairment for the applicant, which is the right and fair decision to make.

Councilman Stern asked staff if they viewed from the viewing area the coastline.

Senior View Restoration Coordinator Nelson stated that she could see the coastline and the ocean.

Councilman Stern questioned if the City analyzed the view as if one could see all the way through no matter what vegetation exists, or does the City analyze other view blockages.

Senior View Restoration Coordinator Nelson stated that when this application was filed, staff encouraged the applicant to add the Perrault’s vegetation; and noted that at that time, the Perraults were willing to trim their trees.

Councilman Wolowicz asked if the Perrault’s trees would need to be trimmed before the applicant could see the ocean from the view area.

Director Rojas noted that the foliage on the adjoining property is much thicker than it was when staff did its original assessment; and that staff believed there will be a need for additional foliage trimming on the neighboring property to get the view staff saw in the February 2003 photo.

Senior View Restoration Coordinator Nelson stated that all the trees across the street are over the 16-foot requirement, estimating they are 20 to 25 feet high.

Councilman Stern briefly highlighted the slope of that lot and the ridgeline.

Councilman Long questioned if staff judged significant impairment of view at the time of the application or did staff continue to look at the growth during the process.

Senior View Restoration Coordinator Nelson noted that it is based on the time of application.

The motion to uphold the Planning Commission’s decision, to deny the appeal, and to ADOPT AS AMENDED RESOLUTION NO. 2004-32 DENYING THE APPEAL, THEREBY AFFIRMING THE DECISION OF THE PLANNING COMMISSION AND APPROVING VIEW RESTORATION PERMIT NO. 138 UPON FINDING THAT ALL APPLICABLE FINDINGS HAVE BEEN CORRECTLY MADE AND ALL PROVISIONS OF SECTION 17.02.040 HAVE BEEN COMPLIED WITH resolution carried as follows:

AYES: Long, Stern and Wolowicz

NOES: Clark and Mayor Gardiner

ABSTAIN: None

ABSENT: None

City Attorney Lynch recommended amending Section 7 by adding a reference that staff on this date located in the City files a photograph of the area that was taken in the late 1970’s which demonstrated that the view impairing foliage was not present on the site at the time the lot was created; that a new Section 10 be added, to be renumbered accordingly, that City Council determination does not affect or supersede the CC&R’s or any other agreement between the applicant and the HOA or the ability of the parties to enforce any such contractual provisions or appropriate legal remedies and procedures.

Noting the late hour, Mayor pro tem Clark moved to continue the remaining agenda items to tomorrow evening.

For purposes of discussion, Mayor Gardiner seconded the motion.

At this point, City Attorney Lynch stated that she needed to add one additional section that related to the time period for challenging Council’s action.

Councilman Long moved, seconded by Councilman Stern, that the additional language be added to the resolution. There being no objection, Mayor Gardiner so ordered.

Councilman Long moved that the speakers present to address Item No. 18 be heard, Girls Softball Fields, making everyone mindful that there is a recommendation on the agenda, that it is the Council’s current inclination to adopt that recommendation and ask that the speakers address that recommendation as opposed to the merits of the fields.

Mayor pro tem Clark asked that Councilman Long’s motion be included in his motion as a friendly amendment.

Councilman Stern noted his opposition to limiting the speakers’ input to the recommendation.

Councilman Long withdrew his motion to limit the scope of the speaker’s input.

Agenda Item No. 18 was considered out of Agenda order.

Girls’ Softball Fields Feasibility Study. (1201)

With the aid of a power point presentation, Assistant City Manager Petru presented the staff report and the recommendation to direct staff on how to proceed in developing up to four girls’ softball fields on City property.

The Mayor and Mayor Pro Tem recommend that the City Council set a date and time for an adjourned meeting to tour each of the proposed sites and receive testimony from the Girls' Softball leadership and the adjacent neighborhoods regarding the suitability, or lack thereof, of each site to accommodate softball fields.

Councilman Stern questioned the need for snack shacks at the softball fields.

Assistant City Manager Petru stated that the Peninsula Youth Sports Council specifically requested that the plans include shack shacks because the proceeds are used as a fund raising mechanism to maintain the fields.

Todd Anderson, representing the Peninsula Youth Sports Council, stated that he has waited a long time for this presentation; commended staff for its excellent job in evaluating these sites; and asked that as site visits are conducted by the Council, that Council keep in mind what the actual needs are, what the actual utilization is and how it all functions. He noted that participants would bring their food to the parks at times, but explained that the snack shacks generate enough revenue for field maintenance, which is a significant amount of revenue. He stated that the Girls Softball League deals with children from the ages of 6 years old to 14 years old. and recommended Saturday, May 22nd, closing day for the softball league, as the day for the Council to tour.

Councilman Wolowicz noted his preference that the fields have multiple uses; and that they be able to accommodate adult leagues if possible.

Mr. Anderson stated that adult league fields are significantly larger in size than that for the youth.

Councilman Long asked that the selection of fields proportionately and reasonably fit this City’s share of the overall Peninsula needs.

Mayor pro tem Clark asked that some youth sports leadership be present on the tour and noted that the Council is already booked for a conference on May 22nd.

Councilman Stern complimented staff on this presentation.

Councilman Wolowicz addressed his desire for future discussion of fund raising efforts, noting that he would like to participate.

Lisa Carol suggested that the Council tour the fields next Saturday or the following Saturday; she advised that there were currently 42 teams playing this year at 4 fields that are dedicated just for girls softball. She stated that 3 of these fields are extremely small and addressed the need for regulation size fields. Ms. Carol stated that practice fields are also in short supply.

Wendy Klashman commented on the health and psychological benefits derived by the girls who play sports; and noted that the snack shacks are very beneficial to the fund-raising efforts of the league.

Juan Torres stated that there is not only a strong need for girls’ softball fields on the peninsula, but also for all recreational fields on the Peninsula and throughout the nation; he addressed the increasing rate of obesity in the youth population nationwide and stated that these facilities are vital for the health of the nation’s children; and noted his desire to see 4 additional girls softball fields on the Peninsula.

Joe McGuiness, president of the Palos Verdes Girls’ Softball League, which represents 450 girls, expressed his appreciation for this City’s commitment to this cause; emphasized the growing demand for additional sports facilities for the area youth; and urged the Council to seek a location that will provide adequate space. He complimented staff on their efforts.

Councilman Stern moved, seconded by Mayor pro tem Clark, to set a date and time for the Council to make site visits and that the Council members give City Manager Evans available dates to schedule the tour. No objection was noted.

Michael Tom noted support for additional recreational facilities.

ADJOURNMENT:

At 12:09 A.M. the City Council meeting was adjourned to Wednesday, 7:30 P.M. to conclude the remainder of the agenda. Motion made by Mayor Pro Tem Clark.

/s/ Peter C. Gardiner

Mayor

Attest:

/s/ Jo Purcell

City Clerk