NOVEMBER 16, 2004 MINUTES REGULAR MEETING

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

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

Roll call was answered as follows:

PRESENT:      Clark, Long, Wolowicz, Stern, Gardiner
ABSENT:         None

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

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

MAYOR’S ANNOUNCEMENTS:

None.

RECYCLE DRAWING:

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

APPROVAL OF AGENDA:

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

PUBLIC COMMENTS:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CITY MANAGER REPORTS:

None.

OLD BUSINESS:

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

APPROVAL OF CONSENT CALENDAR:

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

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

Motion to waive full reading.

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

Approval of the Minutes. (301)

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

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

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

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

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

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

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

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

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

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

            AYES:             Stern, Long, Clark, Wolowicz, Gardiner
            NOES:            None

            #                      #                      #                      #                      #                      #

PUBLIC HEARINGS: 

Reconsideration of the Decision on the Appeal of Conditional Use Permit No. 230 (Planning Case No. ZON2004-00453).  [Appellant: James Kay, 26708 Indian Peak Road]. (Continued hearing from October 5th Meeting.) (1801)

Mayor Gardiner declared the Public Hearing open.

Tom Maciejewski requested another continuance on behalf of his client.

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

City Attorney Lynch answered affirmatively to each of these questions.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The motion was approved without objection.

 

 

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

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

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

Mayor Pro Tem Clark declared the Public Hearing open.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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