RANCHO PALOS VERDES CITY COUNCIL
SEPTEMBER 19, 2006
The meeting was called to order at 7:02 P.M. by Mayor Wolowicz at Fred Hesse Community Park, 29301 Hawthorne Boulevard.
City Council roll call was answered as follows:
PRESENT: Clark, Gardiner, Long, Stern and Mayor Wolowicz
Also present were City Manager Les Evans, City Attorney Carol Lynch, Assistant
City Manager/City Clerk Carolynn Petru, Director of Finance/Information Technology Dennis McLean, Director of Public Works Jim Bell, Director of Planning, Building and Code Enforcement Joel Rojas and Deputy Planning Director Greg Pfost.
The Flag Salute was led by Ted Paulson.
APPROVAL OF AGENDA:
Councilman Stern commented that there were two items on the agenda that were interrelated and he suggested combining Item Nos. 10 and 11 to hear them simultaneously.
Councilman Clark noted that he had specifically requested that the items be handled separately because if Council accepted his proposal, presented in Item No. 10, it could obviate Item No. 11 and cause Trump National to withdraw its appeal.
Councilman Gardiner and Mayor Pro Tem Long agreed with Councilman Clark.
Mayor Wolowicz saw the merit in Councilman Stern’s proposal since there are people who have come to the meeting to express their opinion on both items.
Councilman Stern noted that many people wanted to address the issue of the flag and he felt it would be valuable to allow them to speak. He suggested that once all input has been taken and all the questions asked, if the Council would like to first deal with Councilman Clark’s proposal and it moots the appeal that is fine. He felt it to be artificial to separate the two items and he also felt that for the record on the appeal it would be helpful to have input for both items combined as one potentially affects the other.
Councilman Clark remained unconvinced because he felt that the public who came to speak on one or both of the matters should have the opportunity to speak under Item No. 10 if they want and this discussion is making it clear that they have the opportunity to speak on both items. He encouraged anyone wanting to speak on the Trump Flagpole matter to speak under Item No. 10.
Councilman Gardiner supported Councilman Clark’s comments and questioned whether Item No. 11 would simply be passed over if Item No. 10 was accepted by the Council.
City Attorney Lynch explained that if the Council went forward with Item No. 10, Item No. 11 would be continued to a future meeting to allow time to craft an agreement between the property owner and City.
Councilman Gardiner questioned whether a precedent had been set for a public hearing with an alternative on the table at the same time as the public hearing.
City Attorney Lynch indicated that frequently options were laid out that could be the result of a public hearing where it would be affected by the direction the Council chose.
Councilman Gardiner questioned whether there was an occasion where during deliberations to determine whether the Planning Commission had made the proper findings and decide whether to uphold or disagree with those findings, the Council had gone off in an entirely different direction.
City Attorney Lynch did not recall anything similar to that in the past.
For those reasons, Councilman Gardiner felt it important to keep the actions separate.
Mayor Pro Tem Long felt they could still achieve the procedural concept of dealing with the items separately, but did not think the public could parse out what they would say separately on the two items. He felt the issues were intertwined and he wanted to hear the public speak on both of them.
Councilman Stern questioned whether there was anything to preclude taking input on the two items simultaneously.
City Attorney Lynch indicated that there was nothing to prevent input for the two items being taken simultaneously.
Councilman Stern clarified that decision making could be done in whatever order Council deemed appropriate.
Councilman Clark withdrew his objection to hearing the items simultaneously.
Mayor Pro Tem Long reported that Councilmembers had just received a copy of the applicant’s appeal brief as they walked in to the meeting at 7:00 P.M. and he wanted an opportunity to review the document before considering the appeal and also to hear the City Attorney’s response to some of the issues raised. He did not see how they could be in a position to decide Item No.11 that evening and he added that he would be leaving the meeting by 11:30 P.M.
Mayor Wolowicz noted that the idea was to hear all public input together and then decide Item Nos. 10 and 11 separately.
Moved by Councilman Stern to combine public testimony on Item Nos. 10 and 11 and then consider the action on these items independently, in sequence. Mayor Wolowicz seconded the motion and, hearing no objection, Mayor Wolowicz so ordered.
Moved by Councilman Stern and seconded by Councilman Clark to approve the agenda as modified. Hearing no objection, Mayor Wolowicz so ordered.
Mayor Wolowicz thanked staff for their assistance in presenting the Mayor’s Did You Know Facts.
With the aid of slides, Assistant City Manager/City Clerk Petru explained that although the Geraldton Carnation is a pretty plant with delicate yellow flowers, it has been discovered in the area and is of concern because it spreads rapidly, completely crowding out any existing vegetation and creating a dead zone because no insects or animals feed on it. It also creates a milky white sap that is toxic and poses a threat to horses or any other animals that try to eat it. She indicated areas where it has been spotted noting that four years ago there were six plants and now there are about 600 plants. She explained how to remove the plants and emphasized that care must be taken to wash hands thoroughly after handling the plant noting that a picture of the plant would be posted on the website to help residents identify it.
Responding to Councilman Gardiner, Assistant City Manager/City Clerk Petru explained that the milky sap is a skin irritant and can cause rashes. She added that ingesting the plant could make you very sick but she did not believe it to be fatal except to small animals.
Mayor Wolowicz announced recyclers of the month: Mildred Semmerlroth and Mauro Martinez. He indicated that all winners received a check for $250 representing a year of free refuse service and he urged everyone to participate in the City’s recycling program.
Mayor Wolowicz reminded everyone that this was the time to speak on items not on the agenda.
Nick Green, Daily Breeze, offered clarification regarding procedures for removing Geraldton Carnations noting that when attempting to remove the plants, it is important to wear safety goggles. He also cautioned against using weed whackers as it is important not to spread the sap around. He explained that the sap can cause temporary blindness and there has been one reported case of permanent blindness. He stated that pesticides can be used but it is important not to kill other native plants and the effectiveness of pesticides is not clear as the Palos Verdes Conservancy has sprayed three times and the Geraldton Carnations still persist. He noted that removing the plants is a difficult process and he clarified that the rapid increase in the number of plants quoted from his article was for one particular location and that there were many more than 600 plants on the Peninsula.
CITY COUNCIL ORAL REPORTS:
Due to the length of the agenda, Mayor Pro Tem Long moved to continue the City Council Oral Reports. Councilman Stern seconded the motion and, hearing no objection, Mayor Wolowicz so ordered.
CITY MANAGER REPORT:
City Manager Evans indicated that he also would defer his items in order to expedite the agenda.
Assistant City Manager/City Clerk Petru reminded the audience that items previously discussed and continued to a future Council meeting could be viewed on the City’s website at www.palosverdes.com/rpv.
APPROVAL OF CONSENT CALENDAR:
Assistant City Manager/City Clerk Petru reported a request to speak on Item No. 6.
Mayor Pro Tem Long asked to pull Item No. 3 from the Consent Calendar.
Moved by Mayor Pro Tem Long and seconded by Councilman Stern to approve the Consent Calendar with Items Nos. 3 and 6 removed. A roll call vote carried as follows:
AYES: Clark, Gardiner, Long, Stern and Mayor Wolowicz NOES: None ABSTAIN: None ABSENT: None
Motion to Waive Full Reading
Adopted a motion to waive reading in full of all ordinances presented at the meeting with consent of the waiver of reading deemed to be given by all Council Members after the reading of the title.
Approval of Minutes (301)
Approved the minutes of August 15, 2006.
Biennial Update of the Conflict of Interest Code (1202)
This item was removed from the Consent Calendar and considered separately.
Amend Joint Powers Agreement for Disaster Management (401)
1) ADOPTED RESOLUTION NO. 2006-71, A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES ADOPTING THE AREA G JOINT POWERS AUTHORITY AGREEMENT AMENDMENT, WHICH AUTHORIZES THE OFFICE OF DISASTER MANAGEMENT AREA G TO CREATE PRE-DISASTER PURCHASE AGREEMENTS ON BEHALF OF THE AREA G CITIES, and, 2) Authorized the City Manager to sign the addendum on behalf of the City.
Terranea (Long Point) Resort Hotel Project: Conditional Use Permit No. 215, et. al. One-Year Time Extension (1804)
Approved the applicant’s one-year time extension request, thereby extending the project approvals to October 5, 2007.
Claim Against the City by Patrick Kelsey (303)
This item was removed from the Consent Calendar and considered separately.
Award of Contracts for On Call Professional Services (1204)
1) Awarded a three-year contract for on call professional services to AEI Consultants, PBS&J Consultants, CBM Consulting, Inc., Charles Abbott Associates, Inc., Group Delta Consultants, HYCOM & Associates, Harris & Associates, JMC2, John L. Hunter & Associates, Jon Cicchetti ASLA, KEC Engineers, Inc., Kleinfelder, Helix Environmental, Inc., Lenocker & Associates, Priority Engineering Inc., RBF Consulting, SA Associates, Willdan, Shirley Bennett, and Zieser Kling; 2) Authorized the expenditure of up to $60,000 with each of these firms, with a not to exceed the amount of $25,000 for a single project, and; 3) Authorized the expenditure of up to $311,000 for “on-call” services for various FY06-07 program budgets using the on-call contract authority.
Forrestal Nature Preserve Swale Improvement Project (1201 x 1204)
1) Approved the construction plans; 2) Awarded a contract for the construction of the Forrestal Swale Drainage Improvements Project to Garcia Juarez Construction, Inc. for the contract bid amount of $358,700, and authorized staff to spend up to an additional $40,534 for possible extra work or unforeseen conditions, for a total authorization of $399,234; 3) Authorized the Mayor and City Clerk to execute a contract with Garcia Juarez Construction, Inc.; 4) Awarded a contract to Charles Abbott Associates (CAA), for the Construction Management, and Inspection services in an amount not to exceed $30,000; 5) Authorized the Mayor and City Clerk to execute a contract with Charles Abbott Associates (CAA); 6) ADOPTED RESOLUTION NO. 2006-72, A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES AMENDING RESOLUTION NO. 2006-41, THE BUDGET APPROPRIATION FOR FISCAL YEAR 2006-07, FOR A BUDGET ADJUSTMENT TO THE CITY’S CAPITAL IMPROVEMENT PROJECT FUND – PARKS AND TRAILS MAINTENANCE; 7) Authorized the additional expenditure of up to $163,000 for Forrestal Swale Drainage Improvements Project. Funding to come from remaining Measure A grant money.
Register of Demands
ADOPTED RESOLUTION NO. 2006-73, 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.
ITEMS PULLED FROM THE CONSENT CALENDAR:
Biennial Update of the Conflict of Interest Code (1202)
Mayor Pro Tem Long questioned how the disclosure categories for each of the respective departments were decided.
City Attorney Lynch explained that state law set forth the criteria that are used and in consultation with the Assistant City Manger, the City Attorney’s Office identified all of the categories of positions that would be providing advice to the City Council on the types of policy issues that require disclosure under state law.
Mayor Pro Tem Long asked about the specific categories of interest that people have to disclose.
City Attorney Lynch clarified that was all defined by state law.
Mayor Pro Tem Long questioned why one position had to disclose category 1-6 and a lower position only had to disclose category 1-3.
City Attorney Lynch indicated that judgment call was determined by staff in her office.
Mayor Pro Tem Long questioned why City staff was not required for example to disclose category 7 under the Public Works Department, but consultants are.
City Attorney Lynch clarified that it was a special category related only to consultants and not for employees of the City.
Mayor Pro Tem Long asked if some cities require all employees to fill out a Form 700.
City Attorney Lynch indicated that she was not aware of that being used in that manner. She explained that category 1 is the Form 700, which is required by every category except for the consultant category.
Mayor Pro Tem Long pointed out that some committee members did not have to do it and several departments including Planning, Building and Code Enforcement did not have to do category 1, but all senior staff did category 1 because they provide advice directly to the Council.
City Attorney Lynch indicated that the item would return to the Council again in two years.
Assistant City Manager/City Clerk Petru explained that there were changes from the last version, most notably a few positions were added that had been created in the last few years such as Deputy Director of Finance and Information Technology, and the View Restoration Commission was deleted because it no longer exists. She indicated that the only difference in the assignment of categories is that she had added a disclosure category for reportable gifts and travel gifts to Public Works and the Recreation and Parks Department.
Mayor Pro Tem Long questioned how Rancho Palos Verdes compared with other cities with regards to the level of disclosures required.
City Attorney Lynch reported that the person who handles this for Rancho Palos Verdes also works with other cities and she believed that the City was consistent with others in the area. She added that the document was examined biannually and incorporated the state’s changes.
Mayor Pro Tem Long observed that anyone with any significant contracting authority appeared to be required fill out Form 700 and he questioned whether that was one of her criteria in assigning who filled out the form.
City Attorney Lynch agreed that it was.
Moved by Mayor Pro Tem and seconded by Councilman Stern to receive and file the 2006 Local Agency Biennial Notice for the City of Rancho Palos Verdes, the Rancho Palos Verdes Redevelopment Agency, and the Rancho Palos Verdes Improvement Authority indicating that the Conflict of Interest Code for these agencies needed to be amended; and, 2) ADOPTED RESOLUTION NO. 2006-74, A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES ADOPTING AN AMENDED CONFLICT OF INTEREST CODE CONTAINING REVISED DESIGNATED POSITIONS, DISCLOSURE CATEGORIES AND REPEALING RESOLUTION NO. 2004-83.
The motion passed by the following roll call vote:
AYES: Clark, Gardiner, Long, Stern and Mayor Wolowicz
Claim Against the City by Patrick Kelsey (303)
City Manager Evans explained that the claim was for $11,000-$12,000 to repair a damaged sewer line apparently caused by intrusion of roots from a City-owned tree.
Assistant to the City Manager Park pointed out that the claim was for tree roots that damaged the lateral sewer line which is the responsibility of the homeowner.
Pat Kelsey, Rancho Palos Verdes, expressed concern that the City’s lawyers had not thoroughly researched their position noting that he had consulted lawyers who indicated that because of his extenuating circumstances a claim is reasonable. He indicated that those circumstances include the fact that the roots are from a tree across the street and enter the lateral line at a Y connection. He reported that all but six of the trees had been removed due to root intrusion and about 15 years ago, when a previous owner across the street found out that the City was going to remove the tree, she chained herself to the tree and would not allow it to be removed. A deal was struck with her whereby she would be responsible for the sewer line but no contract was ever made with the neighbors. He explained that the main restriction on a City tree is that if there is the ability to stop the root intrusion it is the private property owner’s responsibility. He asserted that there was no way he could have prevented the intrusion.
Assistant to the City Manager Park indicated that the claims administrator was aware of the history of the street and took that into consideration. She added that when the Council rejected a claim, the claims administrator still continued the investigation but this action is one way to limit the time limitations on the claim and shortens the time frame for resolution of the claim.
Mayor Pro Tem Long observed that the claims adjustor simply denied the claim rather than explaining the reasons for the denial. He questioned whether it was clear that the City had no liability even if the facts are just as the claimant described.
City Attorney Lynch said that she was not prepared to answer that question, as she had no further information than what was included in the packet since this goes routinely to the Joint Powers Insurance Authority for them to handle. She said it was fair to say that there was always an argument about potential liability.
Mayor Pro Tem Long thought that there was an understanding with JPIA that the Council would get better descriptions for their recommendations than they are now receiving.
Councilman Gardiner recalled that they were to receive better information and he understood that even if the Council rejected the claim, the process was still not over.
City Attorney Lynch explained that the Council action triggered a time period within which to file a lawsuit and move forward which is a good thing in that any litigation is therefore undertaken relatively proximate to the event rather than years later when no one can remember anything accurately. She added that in the meanwhile the claims administrator moves ahead and frequently cases can be settled.
Councilman Gardiner questioned whether the individual would have to hire a lawyer.
City Attorney Lynch indicated that the person did not have to hire a lawyer and could negotiate with the prospect of a possible settlement.
Councilman Stern said that he hoped that the public understood that the action was a procedural step. His recollection was also that additional information was to be provided to the Council from JPIA regarding claims. He noted that often claims were denied in order to move forward and some eventually get settled satisfactorily.
Moved by Councilman Stern to continue the item to October 3, 2006 with direction to staff to contact JPIA and have it provide Council with an explanation of the basic analysis applied in this case. Councilman Gardiner seconded the motion and hearing no objection, Mayor Wolowicz so ordered.
Councilman Gardiner questioned whether the Council ever received a recommendation not to reject a claim.
Mayor Pro Tem Long pointed out that in that case the City would just pay the claim.
Mayor Wolowicz explained that the City was trying to speed up the process
# # # # # #
REGULAR NEW BUSINESS:
Proposed Solution to the Un-Permitted Trump Flag Pole and Flag at Trump National as Presented by Councilman Clark (1411)
Assistant City Manager/City Clerk Petru reported that the matter had been continued from September 5, 2006 and that she had distributed late correspondence on the item including a letter received after the packet was copied.
Mayor Pro Tem Long suggested that Council members disclose any communications they had received.
Councilman Clark read a memo he had submitted to staff on August 15, 2006 to set the context of his proposal, and provide a frame for discussion of it. He explained that he put forward an approach to resolve the matter and it in no way implied either acceptance or after the fact appropriate action by the Trump Organization of putting up a flag pole without a permit. He asserted that it was clearly something that should not have happened but did happen and he noted there were several elements that would have to be resolved including maintenance of the flag and flag pole, liability associated with the existing flag pole, and other matters that could be discussed.
Mayor Wolowicz commented that he had learned that two Councilmembers were to be absent from the September 5th meeting, one of whom requested that he be allowed to participate in the discussion, so the matter was carried over until the September 19, 2006 meeting.
Mayor Pro Tem Long disclosed that he and Councilman Clark had a phone conversation with Mike Vandergoes, the manager of the Trump National Golf Course, and they discussed the general outlines of Councilman Clark’s proposal. He reported a favorable reaction to it and the substance of what was said in the phone call was fairly well summarized in the supplemental item received in the late correspondence that evening. He reported that each Councilmember had received a letter from Mr. Trump which he read noting that he had subsequently called the number at the bottom of the letter and left a message.
Mayor Pro Tem Long reported receiving a return call from Mr. Trump where a statement was made that if the City did not find a way to permit the flag to remain, there would be a lawsuit, it would go on for years, and would deal with constitutional issues. He reported responding that if Mr. Trump planned to sue the City of Rancho Palos Verdes to please get in line and take a number as he had heard that before.
Mayor Pro Tem Long indicated that in general Mr. Trump had seemed favorably disposed to Councilman Clark’s proposal, and Mayor Pro Tem Long suggested to Mr. Trump that he owed Councilman Stern an apology because he misunderstood the nature of the issue. He reported that Mr. Trump did not indicate as to whether he would provide an apology or not and he eagerly awaited word from the Trump representatives as to when the apology to Councilman Stern would be forthcoming.
Councilman Clark reported receiving a call from Mr. Trump who indicated that he had read Councilman Clark’s memo and he was fully supportive of seeing that proposal enacted.
Councilman Gardiner reported that he had not spoken with Mr. Trump but he had spoken briefly with his representative about the flag proposal.
Councilman Stern indicated that he had received an email from Mike Vandergoes the previous Friday and he responded by calling Mr. Vandergoes but he had not yet received a return call. He added that he had not spoken to Mr. Trump either.
Mayor Wolowicz wanted to deal with disclosure before procedures and he reported receiving two phone calls from Mr. Vandergoes and no phone calls from Mr. Trump. He reported that the two calls from Mike Vandergoes were part of a series of phone calls to all the Councilmembers, and he then called to talk to him about the letter from Mr. Trump. Mayor Wolowicz stated that he had gotten a copy of the original letter although he was not sure whether he had received it in the packet or if that was the one that was sent to his house. He offered the letter for the files.
Mayor Wolowicz reported a second call from Mr. Vandergoes which he felt to be important and insightful and he encouraged Mr. Vandergoes to convey his candid comments to the Council.
Councilman Stern observed that staff had correctly identified a number of issues and he wanted to get a sense of some of them and some additional information. He realized that the concept of ownership vs. an easement tended to be technical in nature but from a liability standpoint, at the present time, if the City were to take ownership of the flag pole or the ground that it is on, he wanted to know what immunities, if any, the City had or did not have because of the circumstances by which this situation came about.
City Attorney Lynch reported that there were design immunities available to the City if there were engineering plans approved by either the Director of Public Works or by the City Council. She added that if the City is going to accept either an easement or fee area around the flag pole, she wanted to make sure they had the proper engineering plans and verification that the flagpole was properly installed at the site.
Councilman Stern noted that the basic idea was to have a memorial dedicated for our military veterans with a sufficiently broad area that the public could gain access to as opposed to it being a fictitious memorial because the public would not be able to actually go to it. He questioned how close to the tee area the flag was and whether it lent itself to defining an area and an access point so the public could go and show their respects or whether they would have to do it from a distance.
Deputy Director Pfost reported that the flag pole was located at the back tee of Hole No. 1, between 5-10 feet from the tee playing area. He added that the Trump Organization would have to comment on how they would modify the area to allow what Councilman Stern suggested.
Councilman Stern questioned whether the public could view it as it is currently configured without interfering with the golfers.
Deputy Director Pfost indicated that visitors would likely interfere with the golfers and he was not sure how interference with the golfers could be controlled.
Councilman Stern questioned whether there had been any conversation with the Trump Organization about what area would be included and how the public would be allowed to benefit by visiting the site.
Deputy Director Pfost reported a brief discussion with Mr. Vincent Stellio about the issue and he indicated that was something they would need to discuss and work around.
City Attorney Lynch suggested another possibility could be putting the memorial in the public park that could be in the vicinity of the flag pole.
Councilman Stern noted that the property abuts the park and Deputy Director Pfost indicated that the distance from the property line of the park and the flag pole is between 50-75 feet.
Councilman Clark expressed concern that it was not feasible to put a set of public access stairs up the back portion of the tee from the parking lot to provide access for the public to the flag and flag pole, but Deputy Director Pfost believed there were options to do that.
Councilman Clark pointed out that although the flag pole is not that close to the public park, it is close to the City parking lot which adjoins the park.
Councilman Stern questioned whether there had been discussion with the Trump Organization as to what control the City would have over the property in terms of access and timing as there seemed to be a significant potential for conflict between the play of golf and people showing their respects at the flag pole memorial.
Mayor Pro Tem Long expressed concern with the steepness of the slope between the parking lot and the flag pole, noting that a retaining wall and stairs would have to be put in. He was not aware as to whether staff had discussed that issue with the Trump Organization, but he reported that Mr. Vandergoes indicated to him that he was open to discussing the concept.
Mayor Wolowicz observed that while there had been much public interest in this topic, there had been a disproportionate amount of time spent considering the issue and many items had been pushed off the calendar as a result.
At 8:12 p.m. Mayor Wolowicz opened the public hearing.
Councilman Stern indicated that after the Trump Organization made their presentation he would like to make a brief presentation before the public spoke so that they could comment on his presentation if they wanted to.
Mike Vandergoes, Trump Organization, expressed his sincere apologies for putting everyone in the situation, especially to Councilman Stern. He emphasized that he would take all necessary measures to work with staff and Council, review the conditions that apply to the facility, and move forward in a positive manner, making sure that all appropriate permits were pulled before proceeding in any particular manner or direction.
Mr. Vandergoes felt the letter he sent to the Councilmembers explained what the Trump Organization was willing to do and how they were willing to do it, based upon the recommendation of Council and staff. He committed to checking with staff to get all the proper permits without undue delay so they can avoid having to file for a revised permit appeal.
Mr. Vandergoes reported that the Trump Organization was in full agreement as to moving forward with the proposed compromise agreement being discussed. He indicated that they wanted to host a memorial dedication that would include veterans, City Council, staff, City residents and other dignitaries and that the Trump Organization would fund the celebration. He suggested that concerns could be addressed with the City Attorney and Council as they moved forward in the best direction for the City and the residents.
With the aid of slides, Mike Vandergoes presented pictures of the flag taken from various locations, a photo of the existing pathway on the back tee of Hole No. 1 that is currently only used for tournaments, a closer view of the 4x4 foot base of the flag pole and an artist’s rendering of a plaque based on staff’s recommendation.
Mr. Vandergoes presented a cost analysis showing that the flag pole had cost the Trump Organization $23,960.70 to date and reported that the majority of letters they had received were positive with regard to the flag pole. He stated that the main concern was what kind of flag would be flown but if they deeded the land under the flag pole to the City, the City would have control over what is flown on the flag pole, ensuring that the American flag would be the only flag that flew.
Councilman Clark thanked Mr. Vandergoes for his presentation noting that the pictures were helpful, but noted that he did not see a picture depicting what the flag looked like when viewed from Palos Verdes Drive South.
Mr. Vandergoes indicated that there was a picture from the scenic turn out on Palos Verdes Drive South.
Councilman Clark noted that Pals Verdes Drive is a prime arterial road in the City where many people see the flag pole in the foreground with the ocean in the background, and that this particular view had been mentioned in many of the letters. He clarified that he had provided his proposal to staff and he assumed that Mr. Vandergoes and his staff were provided with a copy of it and had presented it to Mr. Trump.
Mr. Vandergoes indicated that Mr. Trump somehow got a copy of the proposal but that he had not personally forwarded it to him.
Mayor Pro Tem Long questioned whether the Trump Organization would be willing to commit to installing steps from the public parking lot up to the flag.
Mr. Vandergoes indicated that was something they would be willing to review with the City Attorney and staff to come to an agreement with regards to access.
Councilman Stern questioned what the Trump Organization thought would be a proper area that the public could go to during normal daylight hours, like in most parks, to see the memorial without interfering with the golf course.
Mr. Vandergoes reported that the area of the back tee of Hole No. 1 was approximately 400 square feet and the area they were talking about granting to the City was a 4 foot x 4 foot parcel. He indicated that the tee which the flag pole is presently located on is in front of the stairs so there would not be any affect with respect to golf play.
Responding to Councilman Stern, Mr. Vandergoes clarified they would dedicate the area under the base of the flag pole and the memorial plaque to the City.
Councilman Stern commented that it sounded to him like the Trump Organization did not want the public to be up there.
Mr. Vandergoes indicated that the area was easily accessible from the public trail next to the putting green and that they would prefer to have the public up there on memorial days. He indicated that they could easily access the area from the putting green and they would install a bronze plaque that stated “Welcome to Founders Park” and directed people up the hill. He added that the distance from that intersection where people are in the putting green to the first tee is about 55 feet.
Councilman Stern questioned whether the Trump Organization preferred that people did not go right up to the flag pole but rather be kept in the area that is presently public.
Mr. Vandergoes indicated that people would be able to go right up to the flag pole at all times.
Councilman Stern questioned whether there was a defined area around the flag pole that the public could access for this purpose.
Mr. Vandergoes indicated that was something they could look at together in greater detail.
Councilman Stern focused on the historical aspects of the situation, noting that as he understood it, Mr. Trump had suggested having a flag pole and Mr. Vandergoes had taken the idea from there and a flag was sent out.
Mr. Vandergoes clarified that a flag had not been sent out but he had chosen the location for the flag and had not asked enough questions. When the foundation of the base was almost done he remarked on the size and Tom Potenzone who installed the flag indicated that it had to be large to accommodate a 70 foot flag pole. At that point, Mr. Vandergoes indicated that he wanted to run the project by the City and he was assured by Mr. Pontenzone that he had been putting up flag poles all his life and had never had to pull a permit as it was allowed as a constitutional right. Mr. Vandergoes apologized for not doing enough due diligence because he had believed Mr. Potenzone’s statements.
Councilman Stern reported sending a letter to Mr. Vandergoes dated August 10, 2006 asking for the name of the person who had given him incorrect information as he felt that if there were people who were misinformed and selling flag poles in the City, it was appropriate for staff to provide them with better information. He indicated that when he received the name on September 12th by email, he called Mr. Potenzone and asked him whether he had told the Trump Organization that they did not need a permit. Mr. Potenzone stated that was not true and his paperwork specified “permits by others” meaning it is the responsibility of someone else to secure any necessary permits.
Councilman Stern noted that Mr. Vandergoes, having worked on the project for several years, was well aware of the significant amount of regulation associated with it in terms of the Conditional Use Permit and associated conditions, some of which deals with the height of various things, limits on the size of trees that can go in, if any, and in light of that, he asked why Mr. Vandergoes didn’t see fit to call the City before the flag pole was installed. He noted that the minutes from the Planning Commission Meeting shown on Page 20, indicate that one of the Commissioners asked whether there had been inquiry from the Trump Organization about a flag pole and Deputy Director Pfost reported that he had sent out the regulations. Councilman Stern questioned whether Mr. Vandergoes knew anything about that.
Mr. Vandergoes answered that he did not.
Councilman Stern noted that the Planning Commission had asked why 70 feet was chosen and Mr. Vandergoes indicated that was the size used at other Trump National golf courses.
Mr. Vandergoes reported that when he asked Mr. Pontenzone how he had come up with 70 feet he had indicated that those were the dimensions used at other facilities.
Councilman Stern questioned whether the other facility was the Briarcliff Golf Course in New York and Mr. Vandergoes indicated that it was.
Councilman Stern reported that the City Manager in Briarcliff, Mike Blau, indicated that the Trump Organization pulled a permit for the flag pole at the Briarcliff facility when it was installed.
Mr. Vandergoes indicated that he was not familiar with the Briarcliff project.
Councilman Stern expressed concern with a touchy geological situation in Landslide Area A which is in the western portion of the golf course property where Hole Nos. 10 and 11 are located. Noting that one of the significant concerns when there are landslide issues and fragile property is the existence of grading, he related that some years ago before a permit was pulled by the Trump Organization, grading was done in that area with full knowledge that it was not permitted and nonetheless the Trump Organization did the work. He added that several months ago after the Trump Organization had done the reconstructive work on the golf course it came to the City for approval and a tee had been raised 8 feet, again with the full knowledge of the Trump Organization that it was out of compliance with its permits and yet that change was made with no attempt to comply with the ordinary legal requirements of the permitting process.
Councilman Stern read an article dated May 27, 2006 entitled “Town Teed of by Golf Course Changes” about the Briarcliff Golf Course in New York where officials there took issue with construction that had never been approved by the Village Planning Board. He indicated that the history from his perspective did not portray an organization that strives to comply with the ordinances of the community it does business in, but rather depicted an organization who viewed the rules as for everyone else. He said that he found it hard to believe that one of the most experienced and significant land developers in the country did not think that even a building permit was required for a 70 foot structure which had the potential to come down if not done right. Councilman Stern questioned what the inappropriate factual conclusions were that Mr. Vandergoes alluded to in the letter he wrote which was the basis for the appeal.
Mr. Vandergoes noted that since he is not a geologist, but instead a Clubhouse Manager and a Golf Pro, he sought legal counsel to find out whether there were grounds to appeal the decision and see if a more amicable decision could be made. He admitted that he did something wrong and he has said on the record that he would not go forward until the conditions that apply to the facility and site were adhered to with regards to any type of permits necessary to go forward. He emphasized that all he was trying to do was come to a compromise suitable to the Council, staff and residents in order to move forward.
Councilman Stern expressed appreciation for Mayor Pro Tem Long’s earlier comments but he did not feel that an apology was necessary to Council members. He added that Mr. Trump was entitled to say what he chose and this was probably the closest he would ever come to being told “You’re fired!” by Donald Trump. He thanked Mr. Vandergoes and appreciated his willingness to answer his questions.
Mayor Wolowicz indicated that given the notoriety of the organization, it was important to put a human face behind the problem and he appreciated Mr. Vandergoes’ comments which he felt were credible. He expressed concern with the safety of people that might want to go to the memorial and he pointed out that the retaining wall and steps would be costly to install. He questioned whether relocating the flag pole to Founders Park or another location had been discussed as that could prove more economical.
Mr. Vandergoes indicated that he would take recommendations from Council and staff as to whether the flag stayed in its present location or should be moved to Founders Park where there would not be as much interaction with golfers.
Mayor Wolowicz questioned whether putting in a higher wall to separate the tee box and make it as safe as possible would damage the value of the tee box.
Mr. Vandergoes indicated that it would.
Councilman Clark asked for clarification as to whether the Trump Organization would be receptive to developing the concept of physically moving the flag to Founders Park.
Mr. Vandergoes indicated that their first choice is to keep the flag pole where it is but if that is not possible without the loss of the tee box, they would move it down to the public park so they could still have use of the full golf course. He added that if they did it again, all the necessary permits would be pulled.
Councilman Clark commented that moving the flag pole to the public park would also lower its elevation, which would be a positive based on some of the feedback received from residents regarding view. He questioned whether it would still be visible in the park from Palos Verdes Drive South.
Mr. Vandergoes pointed out that depended on where in the park it would be placed.
With the aid of slides, Councilman Stern presented a view of the flag from Founders Park noting the large size of the flag. He explained that when the issue was presented to the Planning Commission, the Commission had to evaluate the flag by the criteria that are established by law. He emphasized that the City was addressing the flag pole, not the flag itself, and he asserted that the issue was not whether or not someone could fly the American flag.
Councilman Stern reported that after the appeal was filed and having watched the Planning Commission hearing, he had sent a letter to Mr. Vandergoes dated August 10, 2006 that stated in part: “In addition, please provide the name and phone number of the person associated with the flag pole sale or installation who you stated had advised you that you would not need a permit to install the 70 foot flag pole.”
Councilman Stern stated that since he did not receive a response, he sent a follow up letter on August 24, 2006 which read: “As of today, a response to Councilman Stern’s letter has not been submitted. Can you please respond as soon as possible?” Two weeks later on September 6, 2006, another letter was sent: “As of today, no response to Councilman Stern’s letter has been submitted. Are you planning to respond to Councilman Stern’s letter?” He presented an excerpt of the letter to City Manager, Les Evans from Donald Trump on September 8, 2006 which Mayor Pro Tem had quoted and he reiterated that he did not feel entitled to an apology nor was any Councilmember. He expressed surprise at the response and noted that he intended to keep a copy of the letter as it is the closest he would come to being fired by Donald Trump.
Councilman Stern displayed a copy of an email from Mike Vandergoes dated September 12, 2006 which provided the name of Mr. Potenzone as the individual who installed the flag pole and who Councilman Stern did contact. Next he presented a slide of the Trump flag pole flying a Mexican flag noting that once a permit is issued, the present or future owner of the property may fly whatever flag he or she decides it wants to fly. He added that Councilman Clark’s proposal eliminated the possibility of other flags being flown and he asserted that he had nothing against the Mexican flag or any other flag. He explained that the City is limited in its powers and once a permit for a flag pole is granted, it is not within their power to tell the owner of the flag pole what they may display on it. He was sure that the residents of the City who deeply love the country and its flag, would not like to find out one day that a City Council permitted a flag pole on the false assumption that it would never ever display anything but the American flag, but some years later a new owner with a new agenda decided it had different priorities.
Councilman Stern welcomed public input noting that he had received more email on this topic than any other and reported that the almost 200 emails he received were split about evenly in terms of opinion for or against the flagpole.
Ted Paulson, Rancho Palos Verdes, felt that Councilman Clark’s current proposal was inappropriate as it was being proposed at the wrong location and for the wrong reasons. He pointed out that the Council was making a decision on a very emotionally charged issue and the idea of incorporating a veterans memorial did not need to enter into the debate to influence a political compromise by the Council. He observed that the Council currently had the necessary options to deal with the issue: approve the appeal, deny it, approve with conditions, or the City can obtain an easement for the property in fee to control the type of flags flown on the pole. He observed that none of these options requires the political and emotional involvement of a veteran’s memorial at the Trump National Golf Course.
Mr. Paulson asserted that the appropriate location for the City’s official veteran’s memorial should be at the site of the Civic Center because it is the site of a former military base and the area is the focal point of the City’s major community celebrations. He stated that with the proposed development planned for that area, it would be a gathering place for members of the community and for the public to recognize and honor the veterans and men and women of the armed forces. He did not think that would be achieved if the memorial was located at the Trump National Golf Course where the viewers would primarily be golfers, and he expressed willingness to provide financial support for the memorial at the Civic Center.
Councilman Clark reported that he and Mr. Paulson had served on the Planning Commission together and he had a great deal of respect for him. He noted that Mr. Paulson is a Retired Major General of the United States Army and he served with great distinction to protect the freedoms that we all enjoy. Councilman Clark indicated that he came up with the idea of a veterans memorial because the City did not have one.
Mr. Paulson clarified that he supported an appropriate memorial to the veterans, but not necessarily an American flag.
Councilman Clark sought Mr. Paulson's opinion with respect to relocating the flag to Founders Park but not excluding an appropriate memorial at the Civic Center in the future. He observed that Mr. Paulson had indicated that the only real value would be to the golfers, but he disagreed because the flag is visible from many vantage points.
Mr. Paulson indicated that his emotional and practical reaction was that moving it to Founders Park did not accomplish what needed to be accomplished. He felt that a memorial for veterans needed to be done where it would have the maximum amount of public exposure and honor, on as much of a continuing basis as possible. He pointed out that the City was in the process of developing a master plan for the Civic Center site to include athletic areas and public facilities and he felt a monument would be more appropriate at that site.
Councilman Clark clarified that Mr. Paulson saw it as exclusive rather than a mutually compatible concept.
Mr. Paulson said that he wanted to see an official City veteran’s memorial and he felt that if people want to fly a flag to recognize the memorial that would be fine, but an official City memorial should be located at the Civic Center.
Ward Harman, Rancho Palos Verdes, felt a variance should be granted and he agreed with the first speaker that he did not feel it was an appropriate location for a memorial. He did not know anyone that objected to the flag as it is or with its current location and size and he didn’t see how it could impact anyone in an adverse way. He observed that for anyone not on the Trump property, the flag becomes so miniscule that it could not possibly obscure one’s view of the ocean and he felt the size and location primarily only impacted those who raise and lower it each day. He observed that there were people who did not particularly care for Mr. Trump and the way that he failed to get the proper permits but that did not diminish the wonderful asset he had provided for the community. Mr. Harmon felt that the flag added to the overall beauty and majesty of the project and that it was appropriately proportionate to the size of the golf course, as it pinpoints the first tee which is where the course actually begins.
Betty Reidman, Rancho Palos Verdes, agreed with Councilman Stern that the issue is with the pole, not the flag. She asserted that no one could complain about the flag because it is beautiful and as the child of a former Air Force member she was taught to respect the flag and what it stands for. She observed that it also stands for the rules and regulations in this City and Mr. Trump’s organization has blatantly ignored our rules and regulations, wrapped himself in the American flag and made an issue of something that should not be an issue. She did not want to see the variance granted but she did not object moving the flag to Founders Park as she felt that would mitigate how big it is. She felt the flag was too big where it was but suggested that if it were moved behind the clubhouse in the park it would be just as visible and beautiful.
Councilman Clark appreciated her input and he questioned whether she supported it as a memorial to the veterans.
Ms. Reidman thought that Mr. Paulson had a good point for putting the memorial at the Civic Center but she did not think it possible to honor the veterans enough and she had no objection to having the flag as a memorial.
Bob Marohn, Rancho Palos Verdes, reported being heavily involved in the early days of the formation of the City and he related a personal history with the subject property because of the apartments that were going to be developed there in the 1970s. He expressed strong feelings about the property and its beauty and noted that he is able to see the flag from inside his house, when he drives onto the peninsula, and he sees it when he approaches the golf course.
Mr. Marohn, a World War II veteran, described his feelings toward the flag and acknowledged that not everyone had the same strong feelings for it that he did. Despite those feelings, he felt it essential that proper rules and regulations be followed. He reported serving on the precursor to the Planning Commission for a year and he had great respect for that body as well. He commented that most of the arguments he had heard tended to focus on punishing Mr. Trump. He agreed that Mr. Trump should be made to follow the rules and the problem should be fixed either with Councilman Clark’s approach or by giving Mr. Trump a Conditional Use Permit or by some other means. He loved the flag where it was and did not think it should be lowered too much or he would not be able to see it from his house anymore. He reported that when he looks out over the ocean and sees the flag, it lifts his spirits and he expressed hope that some accommodation could be found so that the flag would be kept somewhere they could see it.
Councilman Clark thanked Mr. Marohn noting that he was modest in terms of mentioning that he was a veteran.
Mr. Marohn clarified that he was in the Army Reserves for 8 years, two years on active duty and he had achieved the rank of First Lieutenant.
Frank Buzard, Rancho Palos Verdes, stated that he was impressed every time he saw the flag and he felt it added appreciably to the overall view. He liked the flag where it was and he liked Councilman Clark’s suggestion as an appropriate compromise. He felt that anything to keep the flag where it was was appropriate.
Councilman Clark reported that the Council just heard from retired United States Air Force Colonel Frank Buzard, noting that when he first started in the government with the U.S. Air Force as a civilian, Colonel Buzard was the Deputy Director of the Office of the Secretary of the Air Force Special Projects.
George Campa, Torrance, reported that he was not a Colonel, or a General, but he was a PFC and he related a brief history of his military service. He stated that he also gets chills when he looks at the flag and he has had a 30 foot flag pole in his yard for 30 years. He reported that no one had ever asked him to take it down and he did not get a permit for it. He asserted that the flag was beautiful and his neighborhood loved it and so did he. He stated that he didn’t care whether anyone liked Mr. Trump or not, because the point was that there is a flag on his property and he is proud of the flag and has a right to be proud of it.
Mr. Campa shared his recent activities with the Council including completion of a documentary called “Let Freedom Ring.” He acknowledged being a flag waver and a patriotic freak, with articles appearing in the Daily Breeze and the Los Angeles Times about his just-completed project. He indicated that his focus was on teaching young people about World War II and he observed that we all take freedom for granted. He supported leaving the flag where it is and he agreed that the veterans memorial should be at City Hall just as it is in Torrance. He noted that Torrance has more than one memorial but he did not think the memorial should be at the golf course.
Councilman Clark thanked Mr. Campa for coming out to the meeting because he personalized what it is like to serve and fight for the country in the largest war that the country has ever seen. Although he could not relate to the battle, he indicated that while he was living in Europe, he had visited several times the location where Mr. Campa risked his life and where his comrades fell and he was honored that Mr. Campa had come out to express his sentiments.
Paul Tetreault, Rancho Palos Verdes, indicated that he was not speaking on behalf of the Planning Commission, but rather as a citizen interested in the decision. He felt that Councilman Clark’s proposal was interesting and it helped alleviate some of the problems that he felt they were presented with, namely the First Amendment issues of what can be flown on the flag pole once the pole is legalized. He noted that the proposal was imaginative and had merit, but he wanted the Council to think a little bit about what it all meant. He noted that it was a proposed settlement, a compromise, and that is generally a good thing when two parties come to the table with differences of opinion and they can come away with some sort of an agreement, but noted that it was not wise to come to a compromise in all situations. He stated that in this situation the City is compromising its administrative responsibilities, its ordinances, the building code and development code and its enforcement. He acknowledged that was done from time to time but he wondered whether it was an appropriate thing to do under these circumstances. He reported making findings of fact in the Planning Commission and he appreciated Mr. Vandergoes coming this evening and explaining in more detail his shortcomings and taking responsibility for not coming forward when he should have done so.
Mr. Tetreault reported making findings of fact which made him conclude, based upon ample evidence, that it was a knowing and deliberate effort to put the pole up without getting permits. He felt the Council needed to make findings of fact as well. He observed that Council might come to a different finding of fact in that regard, but if it concluded like he did and others have, then he felt Council should consider whether a compromise of the City’s position, administrative authority and ordinances are appropriate under the circumstances. He stated that the idea of a memorial is an interesting one but he found it ironic to honor those who have served our country in the armed forces protecting our freedoms with a pole that was put up in flagrant disregard of the laws. He reported mentioning previously that he felt a substantial flag pole would be appropriately sited someplace on the property and perhaps the Council should consider the issues as if the flag pole was not already there and draw its own conclusions on where it should be placed and in what configuration. He said that he supported the idea of putting the flag in Founders Park.
Jim Knight, Chair of the Planning Commission, explained that he was not sitting at the staff table because the way the agenda was organized with Item Nos. 10 and 11 combined; agenda Item No. 10 had a directive to process a variance and coastal permit, so he felt it appropriate that he provide a response before they went forward with that process. He reported that the Planning Commission members take an oath, which they take very seriously, to apply the City’s codes fairly and evenly to all applicants that come before them irrespective of who they are. In this case, he noted that the staff recommendation came forward with various issues related to the Development Code, the Urban Appearance Overlay Control District, the Coastal Specific Plan for Subregion 7 and the General Plan goals, all of which conflicted with this particular structure. He emphasized that it was clear in the minutes of the meeting that the Planning Commission was addressing the structure, not the American flag itself, and observed that a 70 foot pole could obviously accommodate quite a few flags, an American flag in addition to any other flag the Trump Organization wanted to put up there.
Mr. Knight indicated that the City Attorney was very clear with the Planning Commission that the City cannot regulate what type of flag is flown on a particular flagpole. He said that he did not understand the statement that the sole purpose of the particular agenda item was only to fly the American flag but he was sure the City Attorney could address that issue. He indicated that the flagpole was also not compliant with the Conditional Use Permit (CUP) governing the golf course and based upon those issues, he reported that the Planning Commission could not make the findings and even if it could, there was also a requirement for a variance. He stated that the variance permit is included in the Code because sometimes there are unusual and extraordinary circumstances that warrant that an exception be made, but noted that there are findings that have to be made in order to determine that there are unusual and extraordinary circumstances that warrant the variance. He reported that the Planning Commission agreed with staff that this was not the case with this particular proposal.
Mr. Knight reported that the Planning Commission had followed the staff recommendation and he felt it drew the appropriate conclusion. He reiterated that the main goal of the Planning Commission is to apply the rules and regulations of the City fairly and evenly to every applicant. He indicated that there was a discussion in the Planning Commission’s minutes of alternative sites and heights of the flag pole; that the Planning Commission denied the application without prejudice; and that there is nothing inherent with the application that would prevent the applicant from reapplying and redesigning the project so it complied with the Code. He explained that sometimes the Planning Commission does deny projects with prejudice, which means the whole proposal just can not work, even if redesigned. He pointed out that within the Commission’s minutes there is discussion of alternative locations within the same site that would comply with the Code and none of the Commissioners had objection to that alternative. As Chairman of the Planning Commission, he requested that if it does decide to overturn the decision, that Council carefully articulate its findings so that the Planning Commission can understand the Council differs on the issues.
Councilman Stern reported watching the Planning Commission meeting when this item was considered and commended the Commissioners for putting in the conscious effort to apply the ordinance, fairly, evenly and equally no matter whose name was on the permit application. He wanted to emphasize as Mr. Knight just did, that some people, including Mr. Trump, seemed to think that the goal in these proceedings is to take down the American flag. He observed that if anyone watched the Planning Commission meeting they would see that each Commissioner made it very clear that in an appropriate location any number of American flags would be welcome on the property. He felt it was unfortunate that anyone would spin it in a way that was not consistent with what the Planning Commission did, and noted that the Commission had invited Mr. Trump and his organization to do so if they wished to comply with the City’s ordinances. He commended the Commission as he thought they did exactly as good conscientious volunteer citizens should do in applying the law.
Mayor Wolowicz said that he appreciated reading the Planning Commission’s minutes and he felt that the Commissioners made accurate comments and an appropriate reading of the ordinances they had to follow. He stated that, as they have cited in similar cases, there might be certain avenues available to the Council that are not available to the Planning Commission and he felt that Mr. Knight’s request for being precise on the differences of whatever decision the Council might take should be provided so that the Planning Commission can understand whatever comes back from the Council.
Sharon Nolan, Rancho Palos Verdes, encouraged the Council to consider an after-the-fact permit with restrictions and she endorsed Councilman Clark’s alternative. She agreed that it was the duty of the Planning Commission to read the letter of the law and rule accordingly, but she noted that when it came to the City Council, the last point of an appeal, they had the ability to compromise and weigh the pros and cons. She stated that no one disputed that Mr. Trump’s Organization put the flag pole up without permits but she felt that it had become a highly charged issue because of his persona and past transgressions and some other activities. She asked the Council members to disassociate themselves from those issues and look at this just as an after-the-fact permit. She felt the flag was not too large for the size of the property, but rather it was actually in proportion, and she pointed out that many people used Founders Park for weddings and the flag might not be a welcome addition to that public facility.
Chuck Michel, Trutanich, Michel, LLP, Long Beach, spoke on behalf of the Trump Organization addressing Item No. 11, although he stated that he was hoping that he did not need to. He noted that the Council was hearing comments on both Item Nos. 10 and 11 simultaneously so rather than not saying anything he wanted to point out that they had submitted a written brief on Item No. 11 that was provided to the City late that same afternoon. He hoped that before a decision on Item No. 11 was made that the Council would take an opportunity to read it. He wanted to respond to questions raised by Councilman Stern about some of the things that have happened on the Trump golf courses either here or in other states because to the extent that any of those things play into the Council making a finding of fact on any point he thought it was only fair that they had an opportunity to respond to those items. He said that he did not think it appropriate to make a finding of fact at all but he wanted to respond to allusions that had been made that a representative of the Trump organization was disingenuous when he was before the Planning Commission or at this hearing.
Mr. Michel stated that while all the details of Councilmember Clark’s approach could not be worked out at this meeting, he indicated that the Trump Organization would be happy to sit down with the City at a later time and try to formulate plans that would be acceptable. With respect to Item No. 11, he felt it could be less expensive to bifurcate the resolution of the plans of the appeal and he suggested trailing the appeal two weeks behind the attempt to work things out.
Councilman Stern stated that he did not have a problem if the Trump Organization wanted to submit something later if they felt the need to rebut but he pointed out that this was an appeal hearing brought by the applicant which was originally scheduled two weeks ago. He asked for a preview of what Mr. Michel thought their impressions were that are erroneous or erroneous factual conclusions.
Mr. Michel indicated that he had not studied it but noted that the two parties appeared to be making some progress on mutually agreeable items. He reported that they had laid out what the problem was with the City trying to regulate the flag and had a legislative history from the state law that addresses this issue. He noted that these citations were laid out in the brief and he was not sure that the City had the legal authority to regulate a flag pole.
Councilman Stern acknowledged that they had not read the brief but he had observed many references to Government Code 434.5 and he wanted to get some sense from Mr. Michel as to what it contained. He emphasized the painstaking measures that the Planning Commission took to make it very clear to the Trump Organization that it was denying the permit for the flag pole, noting that proponents can refer to the flag as much as they want, but it is the flag pole that requires a permit. He asserted that the City did not attempt to regulate the flag and the Planning Commission went way overboard emphasizing that they would welcome a permit application for a different flag pole to display any number of American flags. He asked Mr. Michel whether he felt, with that history documented in the official records, that by denying a 70 foot flag pole the City is trying to prevent the Trump Organization from displaying the United States flag.
Mr. Michel responded that the City was regulating the display of the flag because flags don’t fly themselves. He pointed out that the pole is needed in order to display the flag and it can be regulated by the City but only for safety purposes, not for aesthetic purposes. He indicated that everything the Planning Commission talked about was aesthetic concerns and noted that the staff report concluded, after the review of photos of how the flag pole is installed, that while the flagpole is not up to code, it is certainly not unsafe. He asserted that the regulation the City is trying to impose is of the aesthetic view and if there is ambiguity in the Government Code, the legislative history makes it clear that is the kind of thing the City can not do.
Councilman Stern noted that Subpart B of the Government Code section goes on to state that nothing in the subdivision should be construed to prevent a city or county from imposing reasonable restrictions as to the time, place and manner of placement or display of the flag of the United States when necessary for the preservation of the public’s heath, safety or order and he gathered that Mr. Michel was reading that with a very narrow concept of health, safety and order.
Mr. Michel indicated that he did, based on the legislative history that they had attached to the brief.
Councilman Clark questioned whether Mr. Michel did not regard that as a typical statement of the ordinary police powers dealing with health, safety, and public order.
Mr. Michel disagreed because he felt there is a difference between police powers and aesthetics, and asserted that this is an aesthetic issue which is not an ordinary recitation of police powers.
Councilman Clark indicated that he was interested in reading the brief because he had trouble believing that when the Planning Commission denied the application without prejudice, thereby inviting the applicant to submit a more suitable proposal that a court would find that the City had prevented them from doing it.
Mayor Pro Tem Long noted that Mr. Michel was indicating that once the property owner has decided to display the flag, they may display the flag in whatever manner they choose unless there is a health and safety issue involved.
Mr. Michel indicated that was not sure whether he was saying that or not because there were no cases for comparison. He indicated that if one wanted to carry the answer to the extreme you could come up with some absurd examples.
Mayor Pro Tem Long noted that he could build his house as a matter of right to 16 feet and if he goes above that height he has to get a Height Variation Permit. He opined that the surest way of getting the permit granted since view is purely an aesthetic issue, is to propose that the second story addition of his house be painted red, white and blue like the American flag, thereby nullifying View Ordinance at least as it pertains to structures and perhaps as to trees as well because he could spray paint his trees red, white and blue.
Mr. Michel noted that problem was raised during the debate at the state level, which is why the Government Code section applies to actual cloth flags.
Mayor Pro Tem Long suggested that as long as a flag was draped from the roof of his second story addition as opposed to painting the stucco red, white and blue, it would be allowed.
Mr. Michel supposed that the court could determine that, and he noted that the case that precipitated the Government Code section was a newspaper that owned property in Simi Valley and wanted to put up a flag pole that exceeded a height restriction in that city and as a result that took away that city’s and other cities’ authority to regulate the display of flags.
Mayor Pro Tem Long indicated that he would review that case and get the City Attorney’s opinion on it as well.
Mayor Wolowicz asserted that it does the Council an injustice and is a disservice to the applicant whenever documents are given to Council at the start of the meeting. He pointed out that Council could make a decision or it could vote to extend the matter in order to have time to digest the late submission.
Mr. Michel apologized for submitting the material late, noting that they had worked on it diligently from the moment they realized it would be required. He said that they still hoped that it would be superfluous and that they would be able to throw it in the garbage but they needed to get it into the record.
Mayor Wolowicz noted that he put a great deal of effort into being prepared for the meeting and reading everything that is given to him, and stated that he took exception to be handed a lengthy document at the last minute and being told in essence “here are the facts, assimilate them.”
Mr. Michel asserted that they had to order the legislative history of the Government Code section from Sacramento. He added that all he could do was apologize. He noted that he was only speaking on Item No. 11 and only because he needed to make sure the Council understands that it is there but he hoped that Item No. 10 would make Item No. 11 moot anyway.
Councilman Gardiner pointed out that one cannot put up a flag without a flag pole so he did not see how the two could be separated. He felt that the ordinances should be examined and a small flag pole at the Trump Golf Course or even Terranea or at the Civic Center made no sense. He felt there should be flexibility depending on the size of the property and if the property is large, the flag pole should be scaled accordingly. He observed that modifying the City’s ordinances was a longer term fix and tonight Council had heard from the Trump Organization who has apologized profusely and he was willing to accept that. He pointed out that the applicant had indicated a willingness to cooperate with a proposal that has been advanced by Councilman Clark and he related that his hometown in Rhode Island has about 5-6 memorials around the town so he did not see that the City should be restricted to one. He liked the idea of a major memorial but did not see a problem with having an ancillary one and he saw nothing wrong with leaving the flag pole where it was or moving it to Founders Park but he wanted to pursue the concept that Councilman Clark had proposed.
Councilman Gardiner moved that Councilman Clark’s proposal be adopted, further explored and brought back to Council after the details were worked out and at the same time continue the appeal until such time that the negotiated resolution is brought back for a decision. Councilman Clark seconded the motion.
Mayor Pro Tem Long proposed an amendment to the motion to add the following parameters of what would be negotiated with the Trump Organization as follows: 1) providing access steps from the public parking lot to the flag pole the satisfaction of City’s staff and at the Trump Organization’s expense; 2) dedication of the land underlying the flagpole to the City, with a permanent access easement retained by the Trump Organization; 3) provide the City with construction plans documenting the installation of the flag to verify that the flag was installed in compliance with relevant building codes so that an as-built permit could be issued to the satisfaction of City staff; 4) acceptance by the current golf course owner and its successors of the maintenance responsibility of the site in perpetuity, including maintaining the flag and the flag pole, hoisting and lowering the flag, and grounds keeping around the flag site as part of the access easement; 5) the applicant installing, if the City requests it, appropriate lighting on the site so that the flag could be flown, with all operation, maintenance and costs associated with the lighting to be borne by the Trump National Golf Club; and, 6) continue Item No. 11 until the details of this proposal can be worked out.
Councilman Gardiner accepted the amendment as part of his motion.
Councilman Clark accepted the amendment as the seconder of the motion.
Mayor Wolowicz stated that he found the amendments to the motion reasonable, but commented that he did not feel that the flagpole was in a safe spot and he indicated that he would accept the flagpole if it were moved to Founders Park. He also proposed an amendment to the amended motion on the floor that the flag pole height be limited to 35 feet in height, which is the size of the flag pole at City Hall. He stated that he was not sure about the issues relating to the types of flags that could be flown there and whether or not they could stipulate that it could only be the American flag, and expressed surprise that the Trump Organization did not bring up the POW/MIA flag which has been adopted by the United States for flying over post offices. He said that he expected that there would be some desire to fly the California flag on the pole and he felt that it needed to be understood that no other banners or displays would be appropriate on the flag pole other than those flags he just named.
Mayor Pro Tem Long pointed out that if the land were deeded to the City, the City would be making the decisions about what flag(s) could be flown on the flagpole. He assumed that the key part of Mayor Wolowicz’s proposed amendment would be to move the flag to Founders Park and to reduce the height to 35 feet and stated that while he was not adverse to staff investigating those possibilities if they are required as an issue for safety, he was not prepared to support requiring that change now.
Councilman Clark agreed with Mayor Pro Tem Long.
Councilman Gardiner agreed to incorporate the exploration of moving the flag to Founders Park as part of his motion if it is an issue of safety, but he did not agree to incorporate the reduction in the height of the flagpole.
Mayor Wolowicz called a brief recess from 10:00 P.M. to 10:12 P.M.
Councilman Stern seconded Mayor Wolowicz’s proposed amendment to the motion on the floor.
Councilman Clark commented that he did not support the amendment from Mayor Wolowicz, but supported the Mayor Pro Tem Long’s conception that moving the flagpole to Founders Park should only be a consideration if, on further investigation by staff, safety factors become relevant.
Councilman Stern explained that he chose to second the Mayor’s amendment because he had significant concerns about the current location of the flagpole relative to the tee box of Hole No.1. He pointed out that the proposed memorial area consists of the four foot square base of the flag pole and if the area were made larger it would start to impinge on the play. He recognized, appreciated, and respected that this is first and foremost a golf course and did not want to see any significant modification to this use. He expressed concern about shoehorning a memorial into this particular location and his desire that the public should feel comfortable being able to go there and give it respect and honor, not just from a distance of 50-75 feet away. He pointed out that the applicant had indicated a willingness to work with the City to place the flag in a proper location in the public park, thereby allowing what is desirable about the flagpole to be maintained and that which is undesirable to be mitigated. He stated that he did not know why there might be a hesitancy to make that rather minor modification to the project and he felt it was a wise proposal from the Mayor.
Mayor Pro Tem Long indicated that when he proposed the amendment to the original motion, and perhaps he misunderstood the motion, he specifically excluded any reference to a memorial. He said that it was not his intent to include a memorial, as he thought such a memorial should be at the Civic Center. With the exception of that one point, he indicated that he was in support of Councilman Clark’s proposal. He clarified that he was not supportive of Mayor Wolowicz’s amendment but he did not have a problem with staff studying the safety issues associated with the existing flagpole.
Councilman Gardiner said that he had no problem looking at an alternative location if safety is an issue but he was not in favor of the reduction in height and explained that because both issues were combined in the same amendment, he would not vote for it.
Mayor Pro Tem Long suggested splitting the questions.
Mayor Wolowicz stated that he was willing to support splitting the question.
Councilman Stern agreed with the proposal to split the question.
Mayor Wolowicz proposed both amendments separately. First, he proposed moving the pole to Founders Park.
Mayor Pro Tem Long asked for clarification as to whether Mayor Wolowicz would require the move to Founders Park or direct staff to study whether to move the flag to Founders Park.
Mayor Wolowicz clarified that he wanted to require that the pole be moved to Founders Park. He indicated that he would deal with the height issue separately.
Councilman Stern seconded the motion and noted that he would like to make generalized comments before the vote.
Councilman Gardiner questioned whether the comments were on the motion or the amendment.
Councilman Stern indicated he wanted to speak in generalities as he did not think it was fair to compartmentalize.
Councilman Gardiner felt that if there was a motion on the floor, the Council members needed to speak to that specific motion.
Mayor Wolowicz questioned whether he would allow it to be incorporated into the motion itself.
Councilman Stern clarified that he was not making a motion but rather had comments to make before the Council voted.
Councilman Gardiner felt the comments should be addressed to the amendment on the floor.
Councilman Clark agreed with Councilman Gardiner.
Mayor Pro Tem Long said that while he felt it was a technicality, but in light of the fact that the motions and amendments relate to each other and while technically Councilman Gardiner might be right under Robert’s Rules of Order, he suggested that the Mayor let Councilman Stern speak.
Mayor Wolowicz allowed Councilman Stern to make his comments.
Councilman Stern thanked the Mayor for recognizing him and he spoke in general about the proposition before the Council, emphasizing that it was not about the American flag or patriotism although some wanted to wrap themselves in the flag and make it an issue of whether or not they were regulating the American flag. He admitted that he did not have a distinguished career in the military and while his father served admirably in World War II in the Armed Forces, his father did not have as distinguished career as many who spoke this evening. He noted that his father had been listed as an enemy alien because he had emigrated from Germany to pursue the freedom that America offered.
Councilman Stern stated that Mr. Trump’s letter addressed to City Manager Evans asserted that: “The American flag and all that it stands for will not be taken down.” He noted that was where he had a problem with what had transpired. In his view, one of the most important principles is that we are a nation of laws and every person, no matter what their station in life, rich or poor, no matter how notorious or famous, complies equally. He noted that there are 42,000 residents in the City, many homeowners who own private property, and each of them is asked to comply with the law.
Councilman Stern asserted that was the principle, particularly given the history of the way the Trump Organization has chosen to do things, which is why he outlined the history of grading without a permit and putting in a tee to a knowingly wrong height without a permit. He pointed out that similar things obviously took place at the other golf course and he felt it unfortunate but true that some people felt that they could choose to do what they wish, as they wish, and they need not comply with the regulations that govern everyone else. He found that troubling because that is one of the principles that he associated with the American flag.
Councilman Stern noted that Mr. Trump could have whatever view of him that he wanted but he knows he is patriotic and he knows what the flag means to him. He said that what it means to him is that he has to give deference to the principle it stands for and that is why if they ever get to the matter of the appeal he will vote to deny it. He said that is also why he believes it is not appropriate to, in essence, work the compromise of simply carving out a four foot area or another small area immediately adjacent to the golf tee where they put the flag pole in the presence of people who whether they are there for a memorial or not, are in conflict with the play of golf. He thanked the Mayor for allowing him to make his comments.
Councilman Clark commented that he appreciated and respected Councilman Stern’s perspective, noting that he was not averse to seeing the flag located in the park but he did not want to preordain it. He said that he preferred that it be looked at as to what the constraints were associated with its current location. He noted that Councilman Stern had asked Mr. Vandergoes about public access and Councilman Clark reported that he wrote down his response which was that it would be accessible to everyone at all times. He noted that how that could actually happen has to be examined as it might not be feasible and he pointed out that the area of property transfer may be greater than four feet square. He said that he did not want to preordain it as an absolute necessity that the property owner had to move the flag in order to retain it and he pointed out that many speakers indicated that they like the flag where it is. He said that he wanted to examine what the ramifications were of keeping the flag where it was and at the same time look at whether the park is a better location for it.
Councilman Gardiner noted that Councilman Stern was very articulate and he respected his point of view but he questioned the assertion that we are a nation of laws and therefore must enforce them to the letter, noting that it wasn’t until recently that his home state of Rhode Island repealed a left over law on the books that indicated that anyone from Massachusetts caught in the state could be shot on sight. He asserted that part of what was wonderful about this country was that we adjust as we go and there are mechanisms like the City Council to sort things out. Councilman Gardiner stated that it was important to move forward and that he felt that Councilman Clark had come up with a wonderful proposal. He indicated disagreement with the Mayor’s view regarding the height of the flagpole but he respected his opinion and he had no problem with the flagpole being relocated to Founders Park but did not see the need to mandate it.
Mayor Pro Tem Long, addressing some of the public correspondence that had been sent to the Council on this issue, suggested that when writing a letter in anger, one should place it in a drawer and leave it there for three days before looking at it again and then see if it really captures the sentiment you wanted to convey and if it really is constructive and helpful in bringing us a solution. He indicated that he mostly shared the sentiment that Councilman Stern expressed and he shared the view that the flag is a symbol of the nation’s respect for its laws and constitution. He asserted that the flag is a symbol and that fact seemed to have been lost on at least some of the people who sent him emails. He reported that there were so many emails that this was the first time he did not respond to each one on the issue. He reported that in every other case he sent everyone a reply thanking them for the input but noted that perhaps the reason he did not do that in this case was because some of the input was not particularly valuable. He pointed out that at one end of the spectrum people were telling him how dare he even consider voting to take down the flag and if he did, he should be taken out the next morning and shot.
Mayor Wolowicz interjected that was a quote that was applied to each member of the City Council.
Mayor Pro Tem Long acknowledged that each member of the Council received all of the emails. He reported that at the other end of the spectrum, he was told that if he voted to keep the flag there he was voting for lawlessness. He asserted that neither is true, and that both are nonsense. He reported that the tenor of many of the emails was similar nonsense that lost track of why they should really respect the flag. He asserted that a 70 foot tall flag was not necessary and he pointed to the flag in the room noting that it perfectly served the purpose and was not more than 7 feet tall. He commented on countries that fly the largest flags in the most boastful way like the Democratic Republic of Korea, or the Third Reich.
Mayor Pro Tem Long indicated that this was a land use issue and he felt the flag would be proportionate where it was and would not significantly interfere with views. He pointed out an inconsistency in a Planning Commission finding which indicated: “The proposed project will have significant adverse affect on adjacent properties, because the proposed project will impair views, although not significantly.” While he agreed with a number of the findings of the Planning Commission and he noted that the Council had the ability to make a broader land use decision and the way that was being accomplished in this particular case was to ultimately have the flag pole and the flag become part of a City park.
Mayor Pro Tem Long stated that the flag pole seemed to be quite proximate given the scale of everything both to the City’s parking lot and Founders Park. He was hopeful that as part of the process the public would be allowed access to the flag pole, as well as better marking of the City’s public park and access to the coastline. He added that the flag pole can become a symbol not only of the government, the republic, and freedom but also a symbol of access to the coastline, which he felt was valuable. In light of all of that, he indicated his support for the underlying motion noting that he did not like 70 feet as a height but he was prepared to go along with it at this point.
Mayor Wolowicz clarified that the amendment was on the table with regard to the flag being required to be located in Founders Park.
Mayor Pro Tem Long pointed out that his amendment had been split into two parts.
Mayor Wolowicz called first for the requirement that the flagpole be relocated to Founders Park.
A roll call vote reflected the following:
AYES: Stern and Mayor Wolowicz
NOES: Clark, Gardiner and Long
The motion failed.
Mayor Wolowicz called for a vote on the second part of the amendment which was the requirement that the height of the flag pole be 35 feet, the same size of the flag pole at City Hall. Councilman Stern reiterated his second of that amendment. A roll call vote reflected the following:
AYES: Stern and Mayor Wolowicz
NOES: Clark and Gardiner
The motion failed.
Mayor Wolowicz indicated that Council would now discuss the motion on the floor. He indicated having comments but he wanted to hear from other Councilmembers first.
Councilman Clark felt his approach was a win-win solution.
Councilman Stern questioned whether staff interpreted the motion as including the necessary or appropriate documentation or materials such that the City would benefit from whatever immunity from liabilities that was available.
City Attorney Lynch said yes and that staff would certainly insert into an agreement a requirement that the applicant provide engineered plans and evidence that the flagpole had been properly constructed in accordance with requirements of the Uniform Building Code. She added that if those things could not be demonstrated that the project would have to come back to the Council.
Mayor Pro Tem Long indicated that was his intent with his amendment to the original motion.
Councilman Stern wanted to make sure staff understood that would include whatever legal requirements applied to the situation.
Councilman Gardiner pointed out that Mayor Pro Tem Long had included that issue in his amendment.
Mayor Wolowicz apologized to his colleagues knowing that the hour was late but wanted to express his comments in an overall fashion as everyone else had done at one time or another during the hearing. He reported initially viewing the issue as relating to one neighbor’s rights over the other. He wanted to clarify that he viewed the issue as a flag pole issue, not as a flag issue. He asserted that he was doing pretty well at keeping calm about everything up until he saw the letter from Mr. Trump to Councilman Stern. He felt that Mike Vandergoes did his employer a service by admitting his mistake, one person to another putting a human face on it. He felt that Mr. Trump’s letter did not do the Trump Organization any good but it reminded him that the flag is a symbol of rights which we all enjoy and sometimes those rights are as miniscule as local ordinances protecting one neighbor from another. He observed that if this was your neighbor who wanted to put up a flag pole over 16 feet in height and it was in your view, you would want the City to stand up and protect your rights. He said that he believed that is what the Council was effectively doing in Item No. 11. He indicated that he was not sure what the City was getting in exchange for the compromise except for access to the flag pole but when the day is done the flag pole is still at the same height and the same location, which he did not think is right. He observed that the issue had garnered much publicity for the developer but the Council had spent the majority of the evening discussing a flag pole while there were many other items on the agenda.
Mayor Wolowicz found it curious that such an experienced developer had so many items subject to inadvertent oversights and he reported being amazed to receive comments criticizing the City Council even before the members had said anything about the issue. He noted that the comments that particularly bothered him were inferences that the Council members were less American than the writer because the Council was conducting a hearing about the flag. He indicated that he had never mentioned anything of a partisan nature and he was truly disappointed to receive emails from members of his own political party, even though he reminded them that it was a non partisan issue, stating that he was unpatriotic. He also cited a very long letter from a writer, who saw fit to send four different letters, indicating that the issue was a litmus test of the Council members’ own patriotism.
Mayor Wolowicz indicated that he was not old enough to remember the era but commented that the situation reminded him of McCarthyism because the Council was being judged by this or that writer’s test. He reported that one writer asserted that the City Council was jealous of Mr. Trump and wanted to take him down a peg and Mayor Wolowicz hoped that the current members of the Council and future members would never subject any resident, developer or other person having business with the Council to their personal whims and egos. He comments that the fact that some would value their stewardship in such an irresponsible manner was the antithesis of the current Council members and he reported that those were the kinds of comments that some people chose to say in support of this issue.
Mayor Wolowicz noted that while Councilman Clark cited a number of people in favor of the existing location of the flag pole, there were a number of people present who did not see it that way and he observed that there were people with similar backgrounds on opposite ends of the issue. He asserted that their task was to come to a proper decision, that they feel in their own respective minds is the best way for the City to react. He indicated that his own assessment is that it is about the pole and about what our flag represents as it is a symbol of the very rights we have in protecting our homes and the very basis of municipal laws.
Mayor Wolowicz stated that in conclusion, that he felt the flag pole should be put in Founders Park and should be no more than 35 feet in height. He agreed with Councilman Gardiner’s assessment that they need to address the issue of flag poles or other structures and he suggested doing that with a variance process. He said that he found 70 feet in height excessive, but felt that 35 feet, like the flag pole at City Hall, was reasonable. With that in mind and because the compromise did not include those two items, he indicated that he was not likely to vote for it, although it had great merit, and he asked that people please not read into the vote any of those negative items that he cited. He said that he was pleased to see a member of the Council willing to stand up and propose something that he felt was in the right direction although he felt it needed some adjustment.
Mayor Pro Tem Long noted that Mayor Wolowicz had indicated opposition to the underlying motion. He questioned whether he would support the underlying motion if it left everything the same but reduced the height of the flag pole.
Mayor Wolowicz asked if the flag pole would still be subject to being moved down to Founders Park.
Mayor Pro Tem Long clarified that it would be only be required for safety reasons.
Mayor Wolowicz indicated that he would reflect on that but that it had a positive impact on his view of the matter.
Councilman Clark encouraged them to vote in support of the motion because it did not foreclose the potentiality for the flag pole being relocated to Founders Park but it was not a priori dictating that the flag pole is in Founders Park. He encouraged Mayor Wolowicz to reconsider his vote in that respect.
Councilman Stern complimented his colleagues as well as the public who participated for handling the matter professionally and he agreed that it was a shame they spent essentially the whole meeting on this one item. He noted that he had also read the emails, many of which were cited and some of which were disappointing because he felt the Council had the ability to work through the issues and find a solution.
Councilman Gardiner suggesting putting things in perspective and pointed out that in the last election there were 7,000-8,000 votes and while 200 emails seems like a lot, quite often people have no position, aren’t interested or haven’t even heard about the issue.
Mayor Wolowicz asked for a roll call vote.
Mayor Pro Tem Long questioned whether the Mayor would be in favor of the motion if the height were lower and he questioned how much lower.
Mayor Wolowicz indicated that he had come to the 35 foot height based on the height of the flag pole at City Hall.
Councilman Clark asked Assistant City Manager/City Clerk Petru to read the motion.
Assistant City Manager/City Clerk Petru indicated that the motion she had was made by Councilman Gardiner and seconded by Councilman Clark for there to be further negotiations concerning Councilman Clark’s suggestion to retain the flag in its current configuration.
Councilman Clark pointed out that the word “suggestion” should be “proposal.”
Mayor Wolowicz pointed out that they were talking about the existing flag pole, not just the flag.
Assistant City Manager/City Clerk Petru indicated that there was an amendment by Mayor Pro Tem Long, accepted by the maker and seconder of the motion to instruct that the negotiations also consider 1) Access steps from the parking lot to the flag; 2) a permanent easement to Trump and a land fee to the City; 3) that there be construction plans submitted that would lead to an as-built, after-the-fact building permit; 4) that there be an obligation in perpetuity to the Trump Organization and its successors for the overall maintenance, raising and lowering of the flag and maintenance of the flag itself and the pole; and 5) to install appropriate lighting to be able to fly the flag at night at the developer’s sole expense.
Councilman Gardiner pointed out that also part of the motion was to continue Item No. 11 regarding the appeal of the Planning Commission’s decision.
Councilman Stern asked City Attorney Lynch whether there were other aspects of public access that would be prudent or required to be considered.
City Attorney Lynch pointed out that any time a new facility is installed it is required by law to be compliant with the Americans with Disabilities Act (ADA) and she was not clear about why public access was being provided up to the existing location of the flag pole if it might in fact be moved to Founders Park.
Councilman Clark pointed out that the motion was to have a flag pole in order to fly the flag in a City park.
Councilman Stern proposed an amendment to the motion to add a catchall that would allow staff to include any additional stipulations that would be consistent with the basic premise that it deemed advisable or appropriate. He continued that it would be up to the Council to give direction to staff but they had not yet heard from staff as they had not yet had an opportunity to analyze the situation.
Councilman Gardiner supported the amendment.
Mayor Pro Tem Long supported the amendment.
Councilman Clark supported the amendment.
Councilman Stern called for a vote on his amendment.
Mayor Pro Tem Long pointed out that the amendment had been accepted.
Councilman Stern indicated that he would vote against the main motion but for his amendment.
Mayor Pro Tem Long requested a roll call vote.
Assistant City Manager/City Clerk Petru called for a roll call on Councilman Stern’s amendment to instruct the negotiators to include other aspects to the proposal as deemed necessary or appropriate by staff. The amendment passed by the following roll call vote.
AYES: Clark, Gardiner, Long, Stern and Mayor Wolowicz
Assistant City Manager/City Clerk Petru called for a roll call vote on the main motion as amended.
Moved by Councilman Gardiner and seconded by Councilman Clark that: 1) Councilman Clark’s proposal be adopted, explored and be brought back after the details were worked out and at the same time continue the appeal until such time that the negotiated resolution is brought back for a decision; 2) Access steps be installed from the City’s parking lot to the flag pole to the satisfaction of City staff and at the Trump Organization’s expense; 3) That as a consideration for accepting the land and for allowing the flag to remain, the Trump Organization would receive a permanent easement to the plot of ground under the pole; 4) The Trump Organization would provide the City with the construction plans documenting the installation of the flag pole to verify that it was installed in compliance with relevant building codes so that an as-built permit could be issued and that this would be done to the satisfaction of City staff; 5) The Trump Organization accepts responsibility for maintenance of the site in perpetuity and if there is a transfer of ownership, the obligation falls to the property owner of the golf club after Mr. Trump sells it, or after Mr. Trump ceases to exist. This responsibility includes maintaining the flag and the flag pole, hoisting and lowering the flag, and grounds keeping around the flag site, and this is part of the conditions of the easement; 6) Install at the City’s option, appropriate lighting on the site so that the flag could be flown at night and the Trump National Golf Club is responsible for all costs associated with properly installing, maintaining and operating the lighting including providing electricity; and, 7) City staff is allowed to include any additional requirements that are consistent with the basic premise that it deems advisable or appropriate.
The motion passed on the following roll call vote:
AYES: Clark, Gardiner and Long
NOES: Stern and Mayor Wolowicz
Mayor Wolowicz called a brief recess from 10:00 P.M. to 10:12 P.M.
An Appeal of the Planning Commission's Decision Denying Case No. ZON2006-00328 (Revision BB to Conditional Use Permit No. 163/Variance), Which is a Request to Permit an "After-the-Fact" 70' Tall Flag Pole Located at the Back Tee of Hole #1 of the Trump National Golf Course [Continued from September 5, 2006] (1411)
The item was continued until such time that the negotiated resolution on Item No. 10 is brought back to City Council for a decision.
Use of State Funding for Supplemental Police Services – CORE Police Team (1206)
Moved by Mayor Pro Tem Long and seconded by Councilman Stern to waive the staff report and approve the continued use of COPS (Citizen Option for Police Services) grant in FY 06-07 to partially fund the CORE Police Team. Hearing no objection, Mayor Wolowicz so ordered.
Appeal of Denial of Planning Case No. ZON2006-00218 (Variance and Coastal Permit): Request to Overturn the Planning Commission’s Denial of a Request for After-The-Fact Approval of a 6-Foot-Tall Wall in the Street-Side Setback Area of a Corner Lot (701 x 1804)
Moved by Mayor Pro Tem Long and seconded by Councilman Clark to continue the public hearing to November 7, 2006. Hearing no objection Mayor Wolowicz so ordered.
PAUSE TO CONSIDER REMAINDER OF THE AGENDA
Councilmembers conferred and determined to finish the remainder of the agenda.
REGULAR NEW BUSINESS:
Proposed View Restoration and Preservation Guideline Revisions (1806)
Director Rojas reported that the item was before Council at the previous meeting and Council had directed staff to make some amendments to the draft guidelines. He reminded Council that these were amendments that staff considered clean up amendments to the guidelines reflecting previous City Council decisions and to clarify the process. He reported that at the last meeting there was a request to add language allowing the Planning Commission to require replacement foliage when foliage is removed that had served as screening for the underside of a deck and indicated that there is now a provision for that type of replacement. He indicated that language was also added regarding stump grinding vs. cutting a tree down flush to the grade, as well as language to address when a tree grows up into a view that was not addressed by previous decision.
Councilman Gardiner requested additional information on language added to address the last situation Director Rojas described.
Director Rojas explained that the previous guidelines had not been clear so staff added language that states explicitly that if there is a view restoration decision and there is a documented view and new foliage grows up into that view, the benchmark is set by the previous decision so that any new foliage that is considered to be significantly impairing the view must be cut down to preserve the view that was originally intended.
City Attorney Lynch clarified that it had to be the same view that was part of the original decision.
Director Rojas added that if it is a documented view, if anything grows up into that view, staff can compare it to the previous benchmark photographs and if there is any change, the foliage owner would be required to address it.
Michael O’Sullivan, Rancho Palos Verdes, offered additional suggestions for modification of the guidelines noting that Section 6, Paragraph F stated that replacement foliage shall be reasonably comparable to foliage that was removed in terms of function or aesthetics. He noted that the section then suggests that any replacement tree size be limited to not more than a 24 inch box and that the root structure not be removed except under exceptional circumstances. He believed that this language prejudiced the decision with respect to tree size. He indicated that if a foliage owner wants to restore his landscaping to a condition that is reasonably comparable to what it was before, but short of impairing someone’s view, the City and the applicant are not going to support that cost and it will fall to the foliage owner. He felt both those clauses should be removed and the decision as to what is reasonably comparable be left to the Planning Commission and City Council.
Mr. O’Sullivan asserted that a replacement tree would not have much chance of surviving if much of the previous root structure is not removed. He commended Councilman Stern for his comments about the law applying equally to everyone noting that in his particular case, the applicant and the City did not comply with clauses in the resolution that gave him some protection and noted that this is well documented in the correspondence. He noted that staff never claimed that it had complied with the resolution although he requested them repeatedly to comply. He requested that some clause be put in the guidelines dealing with the consequence of the applicant not complying in the 30 day period available noting that if the foliage owner failed to appeal to the City within 15 days, they have no more right but there is nothing in the guidelines that gives any protection against the applicant not complying with clauses in the resolution that benefit the foliage owner.
Councilman Gardiner questioned what happened if the applicant did not comply with what the City decided.
City Attorney Lynch explained that the applicant is required to submit a responsive bid and if they do not do that, the City would not proceed with enforcement because the applicant did not satisfy their requirement of providing a bid prepared by a licensed arborist. She added that there was a longstanding issue about what happened in Mr. O’Sullivan’s case.
Councilman Gardiner wanted to discuss the issue generally. He questioned if someone took a tree down but left the root ball in when they were required to take it out, the damage is done, and there is no leverage because the tree is gone, the view has been restored, but they still have not done what they were supposed to.
City Attorney Lynch explained that unfortunately the bidder had agreed to do the work but after additional questions were posed by the foliage owner the contractor changed his mind and withdrew the bid. She indicated that it depended on one’s point of view as to whether because of actions taken by the foliage owner no one would bid on the project any longer.
Councilman Stern questioned whether the tree was removed so the applicant got the view.
City Attorney Lynch indicated that the tree was trimmed and the view was restored.
Councilman Stern questioned whether there was a piecemeal bid.
City Attorney Lynch clarified that the applicant had a contractor that agreed to do the entire job but after they went to the site and additional conditions were imposed upon them by the foliage owner, the bid was withdrawn.
Councilman Stern wanted to know why any work was done.
City Attorney Lynch reported that the City stepped in at that point and did the work. She reported that the applicant got their money back and the City got a warrant and went out and did the work in accordance with the requirement that the tree could either be cut it down to 16 feet in height or the entire tree taken out at the foliage owner’s option and replaced with a new tree.
Mayor Pro Tem Long indicated that his understanding was that there was a compliant bid submitted but the trimming was not done pursuant to that bid, therefore, the City got a court order and the only way the City would get a court order was with a finding that Mr. O’Sullivan was not cooperating with the process and that it was necessary to get a court order in order to compel compliance with the ordinance. He stated that the City could not go back and overturn the court order.
Mayor Pro Tem Long did not agree that the issue of root removal warranted changing the guidelines, but he felt there was merit that on the issue of replacement trees the City should not necessarily limit the use of trees larger than 24 inches to exceptional circumstances which he felt was unduly limiting. He suggested rephrasing the language to read: “Replacement trees or shrubs should generally be of the 15 gallon size and should not be larger than the 24 inch box size unless warranted by the need to reasonably preserve privacy in situations where the tree to be replaced is significantly greater than a 24 inch box size.” He said that he did not want to want to give the Planning Commission a free hand to impose any size replacement tree it wanted, but he agreed that the impact of the existing language is to set the 24 inch box as an absolute maximum and his suggestion would allow a little bit more latitude. He added that he had found examples of nurseries that would provide larger trees.
Councilman Gardiner expressed support for Mayor Pro Tem Long’s comments and questioned the incomplete process in Mr. O’Sullivan’s case.
Director Rojas explained that one tree was trimmed and not the second one, so the City had to get a court order to have the second tree trimmed.
Councilman Gardiner questioned whether there were additional mechanisms in place to deal with the issue.
City Attorney Lynch explained that the foliage owner had a choice to have the tree trimmed or the tree replaced.
Mayor Pro Tem Long indicated that there was a compliant bid to remove the tree but it was not accepted by the foliage owner, so the tree could not be removed without the foliage owner’s approval. He observed that all that can then happen is the alternative of trimming, but Mr. O’Sullivan rejected to bid so that he could add other conditions of his own. He asserted that the order was final and was not appealed and the ordinance could not be re-written for this property owner’s benefit.
Mr. O’Sullivan clarified that the bid provided did not include root removal, but rather would grind the stump two feet below the ground which would not allow for a replacement tree to be planted in the same location. He reported that for months he repeatedly requested that a compliant bid be provided and finally the matter went to the City Attorney’s office.
Mayor Pro Tem Long indicated that Council had heard this story repeatedly and needed to move on.
Mr. O’Sullivan requested that the guidelines be amended to address the issue of when the applicant does not comply with the bid requirements.
Mayor Pro Tem Long received clarification from staff that his amendment could be read in and would not have to come back to Council for further hearings and he moved adoption of the staff recommendation.
City Attorney Lynch read the revised end of paragraph G as follows: “Replacement trees or shrubs should generally be of the 15 gallon size and should not be larger than the 24 inch box size unless warranted by the need to protect privacy or to screen a structure on an adjacent property and the tree or shrub to be replaced is substantially larger than a 24 inch box size.”
Mayor Pro Tem Long agreed but preferred that the word “reasonably” be added before the term “protect privacy.” He apologized to Mr. O’Sullivan for being short with him, but noted that he was exhausted and had to be at an early meeting the next morning. He thanked Mr. O’Sullivan for bringing something to the Council’s attention that will improve the ordinance.
City Attorney Lynch pointed out that there were seven alternatives for replacement trees listed in the guidelines and she suggested that language be added to indicate: “For all of the conditions in paragraph E1.”
Mayor Pro Tem Long wanted to keep the language to indicate where it would reasonably preserve privacy and he did not see that replacement was a function of public health, safety and welfare and he did not see that the other issues rose to the level of privacy.
City Attorney Lynch received clarification from Mayor Pro Tem Long that he was referring only to privacy, not screening.
Mayor Wolowicz questioned whether this would create enforcement or interpretation issues for staff.
Director Rojas indicated that it would not as Council was being explicit that it meant privacy.
City Attorney Lynch indicated that a word had been dropped and she wanted to add the word similar to the paragraph G on page 26 to read: “The function of the landscaping is screening an unfinished wall or structural elements of an unfinished deck or other similar structure.”
Mayor Pro Tem Long adopted the City Attorney’s proposed language as part of his motion and Councilman Gardiner seconded the motion.
Councilman Gardiner questioned the difference between privacy and screening.
Mayor Pro Tem Long explained that screening might mean wanting to have foliage to provide for shade or energy efficiency whereas privacy relates more to what portions of the house or back yard the tree is shielding from view by other people.
Councilman Gardiner questioned if there was an upslope large tree behind his house that is taken out whether he could require it be replaced even if it is not for privacy.
Mayor Pro Tem Long indicated that the requirement for the larger tree was focused on restoring lost privacy.
Councilman Gardiner questioned whether that was the only time you would be entitled to a larger tree.
Mayor Pro Tem Long amended his wording to include: “or exceptional circumstances.”
City Attorney Lynch clarified that he meant to say: “…by privacy or exceptional circumstances.”
Mayor Wolowicz questioned whether the word “exceptional” had particular meaning to staff that might create ambiguity in the interpretation.
Director Rojas indicated that was typical of language found in the Zoning Code and that it is applied on a case by case basis.
Mayor Pro Tem Long clarified that the intent was that you would primarily get larger than 24 inch box trees in the case of loss of privacy but it would still leave open the possibility of other cases.
Councilman Stern supported Mayor Pro Tem Long’s suggestion but he inquired as to why the Planning Commission would exclude the various attributes listed on the bottom of page 25 and 26, including privacy, shade, and energy efficiency.
Mayor Pro Tem Long explained that a decision had been made previously indicating that those alone were not enough to require replacement foliage and that the rule is that a 24 inch box tree replacement is acceptable and you would not get a larger tree except in exceptional circumstances and since every tree provides energy efficiency and shade, those are not exceptional circumstances.
Moved by Mayor Pro Tem Long and seconded by Councilman Gardiner to approve the revisions, as amended, to the City’s View Restoration and Preservation Guidelines. A roll call vote reflected the following:
AYES: Clark, Gardiner, Stern, Long and Mayor Wolowicz
Utilities/Maintenance Cost for PVAN and PVNET Modular Buildings (602 x 1201)
Moved by Councilman Gardiner and seconded by Mayor Pro Tem Long to continue the item to October 3, 2006. Hearing no objection, Mayor Wolowicz so ordered.
Minutes of Closed Sessions (301 x 103)
Moved by Councilman Gardiner and seconded by Mayor Pro Tem Long to continue the item to October 3, 2006. Hearing no objection, Mayor Wolowicz so ordered.
Cable Television Committee (305 x 1101)
Moved by Councilman Gardiner and seconded by Mayor Pro Tem Long to continue the item to October 3, 2006. Hearing no objection, Mayor Wolowicz so ordered.
Information Technology Ad Hoc Committee (602 x 306)
Moved by Councilman Gardiner and seconded by Mayor Pro Tem Long to continue the item to October 3, 2006. Hearing no objection, Mayor Wolowicz so ordered.
CLOSED SESSION REPORT:
City Attorney Lynch reported that Council received a report on the pending Monks litigation but that no action was taken. With respect to whether to initiate litigation regarding the illegal grading at 5521 Graylog Street, she reported that the City Attorney’s Office was given direction by the City Council to refrain from initiating a civil action against the property owner. She indicated that those in favor of this action were Councilman Stern, Mayor Pro Tem Long and Councilman Clark, with Councilman Gardiner dissenting and Mayor Wolowicz abstaining.
COUNCIL DISCUSSION OF FUTURE AGENDA ITEMS & SUGGESTION OF FUTURE AGENDA ITEMS:
Mayor Pro Tem Long commented that he and Councilman Gardiner had discussed the possibility of formulating an alternative to the existing Storm Drain User Fee for consideration by Council and the voters. He noted that in all likelihood it would probably be something that would yield a larger sum of money on an annual basis for a shorter period of time. He noted that as part of attempting to work out the parameters and bring something back to the Council, he and Councilman Gardiner would need to get information from City Attorney Lynch. He noted that before they could presume to ask her questions that would require her to spend some time, the matter should be agendized so that she can be given authorization from the Council to respond to their questions.
Mayor Wolowicz felt that Mayor Pro Tem Long’s request was appropriate.
Mayor Pro Tem Long noted that they were looking for permission from Council to direct the City Attorney to research issues relating to election law and the legality of fees and parcel taxes and to respond to them as they try to formulate a joint proposal to bring back to the Council.
Mayor Wolowicz suggested that the inquiries and responses should be written so that the Council could understand the process.
Councilman Gardiner pointed out that their thought behind agendizing it was that it would require a reasonable amount of time and there are costs associated with it and
he and Mayor Pro Tem Long wanted to make sure the other Council members were aware and supportive of that approach and concept.
Councilman Stern felt it should be agendized and they should consult with staff so they can prepare an adequate report so that the Council understands what it is being asked to approve.
Councilman Clark agreed as long as the discussion was expanded to include the basic question of the ballot alternative and what the Council thought of that.
Mayor Wolowicz felt that would be quite significant and he felt it important to initiate the conversation.
Mayor Pro Tem Long observed that he and Councilman Gardiner were on opposite ends of the spectrum on the issue and if they could come to an agreement, then they could present it to the rest of the Council and in all likelihood it could be adopted. He noted that if, on the other hand, they can not agree there is probably not a lot of value in the rest of them examining the issue because without unanimity behind it, the proposal is likely to suffer the same fate as the original Storm Drain Use Fee, which is currently subject to repeal.
Councilman Clark agreed but felt that the Council needed to discuss the broader issue which is whether there is sentiment to look at a ballot alternative, as that is the precursor to considering the content of what that would be.
Councilman Stern indicated that they could speak with staff separately and staff would then craft an appropriately broad agenda item so that Council could discuss all the related issues.
Councilman Gardiner explained that this had grown out of a conversation from the last meeting where there was support indicated for bringing something back.
Mayor Pro Tem Long suggested that they could conceptually outline the major points so that the Council was aware that in approving the City Attorney to assist, they are approving something potentially worthwhile or not.
At 11:38 P.M. Councilman Stern moved, Mayor Wolowicz seconded, and hearing no objection, ordered the meeting adjourned.
/s/ Thomas D. Long
/s/ Carolynn Petru