MAY 25, 2004



The meeting was called to order by Chairman Mueller at 7:00 p.m. at the Fred Hesse Community Room, 29301 Hawthorne Boulevard.


Commissioner Karp led the assembly in the Pledge of Allegiance.


Present: Commissioners Karp, Gerstner, Knight, Tetreault, Vice Chair Cote, Chairman Mueller

Absent: Commissioner Van Wagner was excused

Also present were Director of Planning, Building, and Code Enforcement Rojas, Associate Planner Blumenthal, Project Coordinator Nelson, and Recording Secretary Peterson.


The agenda was unanimously approved as presented.


Director/Secretary Rojas distributed one item of correspondence for Agenda Item No. 2 and a copy of Commissioner Knight’s comments to the draft minutes.




1. Appeal of Grading Permit (Case No. ZON2003-00425): 49 ¼ Rockinghorse Drive


Associate Planner Blumenthal presented the staff report explaining that this is the continuance of an appeal in which the Planning Commission had directed the applicant to work further with the appellants to address their concerns regarding the project. The Planning Commission further directed staff to obtain the City Attorney’s opinion on the City’s ability to approve the project, given the appellants claim that the proposed project would preclude the possible future use of an ingress/egress easement. Further, staff was directed to investigate whether the Fire Department would be able to approve the proposed project given the narrow width of the existing access road on the property. He explained that staff met with the City Attorney to discuss the legal issues regarding the access easement and it was her opinion that the City should not approve a project that would preclude the use of the entire recorded easement, despite the questionable feasibility of whether a future roadway could be constructed to the full easement width. After consulting with the City Attorney staff met with the applicant and appellants, at which time all parties agreed that the best method to address the easement issue was to modify the easement. He explained that the City Attorney has reviewed these changes and the proposed conditions of approval, and in her opinion these changes are a practical and a legally accepted method for dealing with the easement issue. He explained that to address the bulk and mass as directed by the Planning Commission, the applicant reduced the pitch of the roof to a 3:12 pitch, which dropped the height of the structure approximately 1 foot. Additionally, the applicant is proposing to use vegetation to help screen the house from the neighbor at 49 ½ Rockinghorse Road. Mr. Blumenthal further stated that the applicant has discussed this application with a representative from the Fire Department and that the Fire Department was satisfied with the existing access for the proposed structure as well as the existing location of the fire hydrant. Additionally, the Fire Department felt the existing fire hydrant was sufficient in size and there was sufficient water flow to the residence. He stated that the only outstanding issue for the Fire Department was the width of the driveway, noting that if the driveway does not meet their minimum width requirements they would require the residence be fire sprinklered. He stated that if the Commission felt that the applicant had addressed their concerns, then staff was recommending the Planning Commission deny the appeal and uphold the Director’s decision to approve the project, with conditions.

Vice Chair Cote asked staff to clarify the ridge height reduction.

Associate Planner Blumenthal explained that the revised proposed ridge height is 34 inches below the original ridge height.

Commissioner Knight questioned the language in the Conditions of Approval regarding the easement.

Associate Planner Blumenthal clarified that the Planning Commission would not be approving the easement language, but rather the location of the easement. He explained that the easement language would go to the City Attorney for review.

Commissioner Knight asked if the easement would include the right to park along the 8-foot strip.

Associate Planner Blumenthal answered that there was some discussion about parking along the easement, however staff was leaving that decision to be made between the applicant and the appellants.

Commissioner Knight asked if the Fire Department had looked at and reviewed the plans in terms of the width of the road and easement relative to their requirements.

Associate Planner Blumenthal answered that the Fire Department had looked at the original plans and felt the width of the road was sufficient.

Commissioner Knight asked what the minimum width of a driveway entrance is, noting this proposed driveway is 22 feet in width.

Associate Planner Blumenthal answered that the City’s minimum driveway width is 10 feet.

Commissioner Knight asked if the proposed trail has to be defined in terms of its dimensions and location before it can be dedicated.

Associate Planner Blumenthal explained that the Conceptual Trails Plan states that there should be a trail located along Dodson Canyon, but does not specify the exact location, except that it should be at the base of the canyon. He stated that staff was going to review the irrevocable offer language and figure out where the exact location of the trail should be.

Commissioner Knight felt there should be some input from those currently updating the Conceptual Trails Plan and the Land Conservancy as to the location of the trail.

Director/Secretary Rojas clarified that the dedication does not have to describe the actual location of the trail.

Commissioner Karp asked for clarification of the wording in paragraph 23, which says that if the applicant is unable to obtain written approval, these portions of the approved project shall not be constructed.

Associate Planner Blumenthal clarified that the two portions being discussed are the portion of the applicant’s driveway which is on the property at 49 Rockinghorse and the garden wall that is meant to help retain some of the sloughing from 51 Rockinghorse. He stated that because these areas are not on the applicant’s property, the Planning Commission cannot require him to do work. He explained the condition was saying that the applicant must obtain approval from the specific property owners to do work on their property.

Commissioner Karp asked if the project would be impacted if these approvals were not obtained.

Associate Planner Blumenthal answered that staff did not believe the applicant’s project would be impacted, if the approvals are not obtained. In such case, those elements of the project would simply not be constructed.

Chairman Mueller opened the public hearing.

Davis Falstrup 49 ¾ Rockinghorse Road (appellant) explained that his initial concern with the project was that the plans were in conflict with the easement, specifically the driveway as shown would prevent the ability to widen the road in the future. He felt that it has been shown that to allow the driveway to be constructed as proposed would require the owners of the easement to come to an agreement which modifies the easement rights. He stated that the modified plans do have potential for a win-win scenario that would depend on an acceptable formal modification to the easement. He stated that the plans reduce the easement area dramatically and the resulting area is quite small. He did not feel this would be agreeable unless there are some other advantages. He felt the proposed plans widen the road just enough for two cars and allow space that addresses the ability to drive safely out. He therefore felt that, though marginal, the new plans do address many of his concerns regarding the roadway. He explained that his main concern at this point is that the building project could go forward but the changes promised do not happen and he would be forced to pursue the applicant in court to make good on the agreement. He therefore requested the Planning Commission require that the changes to the roadway be completed first. He was concerned with item No. 23 of the Conditions of Approval, noting that the approval from the owner of 49 Rockinghorse Road was critical, otherwise one could not safely exist the area, and to allow the project to go forward without that happening would put the project back to square one and he would not want to sign any new easement that would not require this safe exiting. He also noted that Condition No. 22 asks for the approval from the owners of 51 Rockinghorse, but noted that the easement does not go through their property and therefore it was just one more signature needed that was not required. In summary, he felt that the new plans provide the potential for an agreement to modify the easement to allow the building to take place, noting however that in concept the plans seem acceptable nothing has been formally agreed upon at this time.

Commissioner Tetreault noted that Mr. Falstrup, as one of the easement owners, would have to give approval of the modification of the easement so that it can be recorded and modified to allow the project to go forward. If, under Condition No. 23, permission wasn’t granted by other property owners to go forward with the construction, then Mr. Falstrup would have the ability to withhold his approval of a modification to the easement, in which case if the easement is not modified, the project could not move forward.

Mr. Falstrup asked if Commissioner Tetreault was suggesting this constraint could be written into the easement modification.

Commissioner Tetreault answered that he was not proposing anything at this time, merely asking Mr. Falstrup if he has considered that.

Mr. Falstrup stated he would be happier if there wasn’t something in writing in an agreement that appears to be in conflict with what the Planning Commission has said.

Chairman Mueller asked Mr. Falstrup if his agreement to the easement was contingent upon permission given by the property owners where the wall is proposed to be built and the owner of the driveway where the road will be slightly modified.

Mr. Falstrup answered that his agreement was contingent upon those property owners giving their permission to provide those improvements.

Chairman Mueller asked Mr. Falstrup if he was asking the Planning Commission to modify the condition to make the project contingent upon his signing the easement.

Mr. Falstrup answered that he would like the Planning Commission to not allow the entire project to be constructed unless the necessary permission from all of the property owners is involved.

Chairman Mueller asked staff, in Condition No. 22, if the requirement is that the easement be recorded before the plans are allowed to be submitted to Building and Safety for plan check.

Associate Planner Blumenthal answered that prior to plans being submitted to Building and Safety plan check, the easement shall be reviewed and approved by the City Attorney, signed by all parties, and recorded to the properties.

Chairman Mueller asked if any of the property owners did not sign the easement would that then prevent the entire project from going forward.

Associate Planner Blumenthal answered that was correct.

Chairman Mueller asked Mr. Falstrup if that would satisfy his concerns, as Condition No. 22 covers his concerns regarding the approval of the easement for the project to go forward and asked if asked Mr. Falstrup if he wanted to extend this to the other two improvements, which is over and above Condition No. 22.

Mr. Falstrup answered that he would want to read the condition and think about it.

Commissioner Knight asked Mr. Falstrup to explain why the driveway at 49 Rockinghorse and the garden wall at 51 Rockinghorse are so important to him.

Mr. Falstrup answered that the most important improvement is the driveway at 49 Rockinghorse as it is what allows one to drive safely out of the area and have a good view as you go up the driveway. He answered that the garden wall is less critical but still an important part of the project.

Mr. Dvorin 49 ½ Rockinghorse Road stated that the range in the height reduction proposed by the applicant sounds like the range he had asked for, as his goal is to maintain his horizon view from a portion of his backyard. He did not know if the new proposal would do this, however he would like to look at the revised plan or have the applicant put up some type of silhouette so he can see if the new proposal is within the height reduction he was seeking. Regarding the easement, he felt that the plan generally reflects what was discussed at a previous meeting and would provide a basis for the applicant to prepare more formal plans. He agreed with Mr. Falstrup that the widening of the road at 49 Rockinghorse is very important. He stated that he still has some landscape material and placement issues along the side of the house, but did not think they should be controversial. He stated that he also has some other issues with respect to view and landscape height looking back toward the south, and noted that there has not been any dialogue with the applicant regarding these issues.

Commissioner Knight asked Mr. Dvorin if he was satisfied with the current negotiations on the easements.

Mr. Dvorin answered that, from what he has seen on the plans, the easement is close enough to what has been discussed and addresses enough of the neighbors’ concerns that it is an appropriate starting point for the applicant’s actual plans.

Commissioner Knight asked if the driveway at 49 Rockinghorse and the retaining wall for 51 Rockinghorse should be part of the process.

Mr. Dvorin felt that the driveway at 49 Rockinghorse is a critical part of the easement, however he did not think the issue would be controversial. Further, the garden wall at 51 Rockinghorse will confer such a benefit on the property owner that he could not imagine that their consent would be withheld.

Chairman Mueller asked Mr. Dvorin if he wanted to see revised plans and a silhouette to understand the new height of the project.

Mr. Dvorin answered that he would not expect the applicant to go to the extent of revised plans, as he simply needs to physically stand on his property and see where the reduced ridgeline is, and felt it could be done with some type of visual representation.

Chairman Mueller asked Mr. Dvorin if he was in support of staff’s recommendations for the landscaping.

Mr. Dvorin answered that he was very much in favor of screening landscaping between the two properties especially because there is a significant area of his property that is hardscaped and he does not have the ability to landscape. He stated that his landscape architect has some different recommendations and he is looking for some type of landscaping that will achieve a hedge-like function in the location where the bulk and mass of the proposed house is going to be, and suggested Ficus benjaminus.

Chairman Mueller asked Mr. Dvorin if he was in favor of holding up the entire project if the owners at 49 and 51 Rockinghorse do not accept the proposed modifications.

Mr. Dvorin did not think he was prepared to answer that question and would have to think further on that answer, however he felt there was a high expectation that the two neighbors would grant their permission. He also noted that the garden wall was nowhere as important to him as the driveway easement.

Commissioner Knight noted that Condition No. 24 spells out the landscaping plan, noting that the condition calls for Indian Fig and Magnolia, and asked Mr. Dvorin if he has a different species of tree in mind.

Mr. Dvorin answered that he does have a different type of vegetation, noting that directly along the side of the house he does have a specific request based on the advise of his landscaper, which is the ficus benjaminus. He noted that his concern applies only to the one side of the house and what the applicant does with vegetation on the rest of the property does not affect him.

Vice Chair Cote asked staff if they had any concerns with planting ficus benjaminus as suggested by Mr. Dvorin.

Associate Planner Blumenthal answered that he has checked with the view restoration staff, and there would be no concerns from staff perspective in using the Ficus benjaminus.

Stan Rinehart 49 ¼ Rockinghorse Road (applicant) stated that since the last Planning Commission meeting he felt that a lot of progress has been made to meet the concerns of the City and the neighbors. He explained that he has added fences to screen headlight glare from vehicles coming in and out of the driveway, debris walls on the neighbors property on the south side, increased the width of the road by 8 feet, added a retaining wall to support the width, deleted a window on the east side of the house for more privacy for Mr. Dvorin, and reduced the proposed ridge line by almost 2 feet-10 inches. He did not think there was much more he could get out of the widening of the road and getting the approval of 49 Rockinghorse to add to the transition area was the key. He stated that he could give 8 feet more for the road in front of his property but his hands are tied on other people’s property. Mr. Rinehart stated that he had no problems with the conditions of approval, but asked that the wording in Condition No. 22 be changed to "prior to the issuance of a building permit" which would allow time to do work on the legal description of the easement and allow him the time to start in the process in building and safety, noting that he would not be able to get his building permit until the easement issues were settled.

Commissioner Knight asked Mr. Rinehart if he had any objection to using the Ficus benjaminus for landscaping as suggested by Mr. Dvorin.

Mr. Rinehart answered that he did not have any objections to using Ficus benjaminus, but asked that the location be clarified.

Vice Chair Cote addressed Condition No. 12 and asked Mr. Rinehart what the actual changes are to the numbers to address the modifications discussed.

Mr. Rinehart responded that the ridgeline would be at an elevation of 139 feet 2 inches and the building height would be 27 feet.

Chairman Mueller asked Mr. Rinehart if he was proposing to reduce the pitch of the entire roof of the residence.

Mr. Rinehart answered that he was proposing to lower the entire roof pitch.

Mr. Falstrup (in rebuttal) felt that having the approval from the owners of 49 Rockinghorse Drive was critical and did not want to approve a revision to the easement without that approval.

Vice Chair Cote felt that Condition No. 22 appears to give the Falstrups complete latitude to not approve the project, as they have to sign the easement. She was therefore having a hard time understanding why Mr. Falstrup wanted Condition No. 23 modified since he already has huge leverage already in place in Condition No. 22 and asked Mr. Falstrup what additional leverage he felt he needed in Condition No. 23 to get what he wants.

Mr. Falstrup stated that if that is the case then he would be satisfied.

Chairman Mueller closed the public hearing.

Commissioner Knight asked staff if there has been any type of confirmation from the owners at 49 Rockinghorse Drive regarding signing the easement.

Associate Planner Blumenthal explained that there has been no definite confirmation from the owners at 49 Rockinghorse, but noted that Mr. Dvorin has had a discussion with them and it is a definite possibility.

Vice Chair Cote noted that in Condition No. 22, 49 Rockinghorse Drive is not included in the list of those who have to sign on the easement.

Associate Planner Blumenthal stated that was an omission by staff and 49 Rockinghorse Drive should be included in Condition No. 22.

Vice Chair Cote noted Mr. Rinehart’s request to be allowed to submit the plans to Building and Safety plan check while working on the easement agreements, and asked staff’s opinion on that request.

Director/Secretary Rojas felt that the way the condition is currently worded is much cleaner as it does not allow the applicant to enter into the Building and Safety process until all necessary approvals have been received.

Vice Chair Cote referred to Condition No. 24 and asked staff if they had a clear understanding of where the foliage should be located and the concerns of the neighbor.

Director/Secretary Rojas answered that staff will be able to implement the condition and make sure it addresses the issues.

Commissioner Tetreault noted that one of Mr. Dvorin’s concerns is how this proposed residence will affect his view, and asked staff if they have performed a view analysis from Mr. Dvorin’s property.

Associate Planner Blumenthal explained that staff did a view analysis from Mr. Dvorin’s property and determined that the best and most important view, which is considered the primary view, is in a direction away from the applicant’s property and therefore staff did not feel there was a significant view impairment caused by the proposed structure.

Chairman Mueller noted that the proposed roof pitch was now at 2½:12 and asked if there were other similar roofs that had been approved in the City.

Associate Planner Blumenthal answered that there were other similar roofs and that the Planning Commission had recently approved a roof with a 2:12 pitch roof.

Chairman Mueller asked staff if they had reviewed the project with the lowered roof with respect to neighborhood compatibility.

Associate Planner Blumenthal answered that staff has not reviewed the plans with the 2½:12 roof pitch, however because of the location of the proposed residence he did not feel there would be a significant concern with neighborhood compatibility.

Chairman Mueller asked if the lowered ridgeline would change the appearance of the mass and bulk of the house from the street.

Associate Planner Blumenthal did not think the lowered ridgeline would change the mass and bulk of the structure as viewed from the street, but perhaps from the neighboring properties.

Chairman Mueller asked if, in other applications where neighborhood compatibility is an issue, was staff looking at the structures primarily from the street or from adjacent properties.

Associate Planner Blumenthal answered that staff primarily looks at the appearance of the proposed structure from the street.

Vice Chair Cote stated that there have been recent applications before the Planning Commission where articulation and the appearance of mass and bulk have been addressed not just from the street but from an adjoining property or the back of the property.

Chairman Mueller noted that in this case the primary view from the street is looking down upon the structure and that was his primary concern regarding neighborhood compatibility. He felt that if the Planning Commission were to require every neighbor to reduce the height of the house as viewed from next door, the Planning Commission would be basically changing the way neighborhood compatibility is being assessed.

Commissioner Karp felt that this was a unique property, as it is not on a public street and only two houses exist past the property, noting that these two homeowners have not raised an issue with mass and bulk, and therefore was not an issue he felt the Planning Commission should be concerned with.

Commissioner Tetreault felt that the solutions presented in the staff report will address his concerns with the easement issues, noting that the project cannot go forward unless the holders of the easement agree to modify their easement rights. He was not concerned with neighborhood compatibility, and commended the applicant for his efforts to lower the ridgeline of his house so his neighbor could have as much of his view behind the house as possible and noted that he agreed that this view was not the neighbor’s primary view. He stated that he was satisfied with the project as proposed.

Commissioner Knight was also pleased with the efforts made by the applicant and the neighbors to work out the issues regarding the easement. He stated however that he still had an issue with the scale of the proposed house, as the size would be quite a bit larger than the average home in the area. He felt that there had been so many modifications to the residence, including some made just prior to this meeting, that it might be beneficial to continue the public hearing to allow all of the modifications to be incorporated into a plan.

Commissioner Gerstner stated his concern was the transition of the driveway through the easement and the wall, as driving up a 20% driveway to make a hairpin turn at the top onto a 20% road was difficult. He felt, however, that there was a reasonable solution and that the applicant should take some time with his civil engineer to investigate a solution to eliminate the wall from the easement portion to allow for a more reasonable transition. Regarding the issue of bulk and mass, he noted that there are quite a few constraints on the home and he did not have an issue with the bulk and mass.

Vice Chair Cote appreciated the guidance given by the City Attorney regarding the easement issues and was satisfied that Condition No. 22, if modified to include 49 Rockinghorse, addresses the specific guidance from the City Attorney to deal with the easement issue. She therefore felt very comfortable moving forward with that aspect of the project. Her other concerns with the ridgeline, mass and bulk, and foliage have also been addressed by the applicant and felt comfortable that the issues she had have been appropriately dealt with. She therefore felt she could approve the project.

Chairman Mueller was concerned about the two-part condition, specifically conditions 22 and 23. He was concerned that staff was asking that all parties sign the easement, where condition 23 talks about giving permission to modify specific improvements on their respective properties. He asked if that was a separate document in terms of a written agreement.

Associate Planner Blumenthal answered that they would be separate documents, as Condition 22 strictly deals with the easement and restrictions on the easement while Condition 23 deals with obtaining written approval from the property owners to conduct improvements on their properties.

Chairman Mueller asked if the Planning Commission could require the property owners to sign personal agreements between them that they are going to make the improvements prior to asking them to sign the easement and have it recorded.

Associate Planner Blumenthal explained that if Chairman Mueller was referring to Condition No. 22, if the Planning Commission felt there was a nexus between the project and those improvements being done, they could require that. However, in that case, if the property owners at 49 and 51 Rockinghorse do not agree to the improvements on their property that would stop the project.

Chairman Mueller discussed lowering the ridge height and noted that the view the neighbor was discussing over the structure is not the primary view and is not a protected view. He did not feel that it was necessary to re-silhouette the project to show the new proposed ridgeline, but did express concern about last minute offers to change the project as it is hard to visualize whether or not it will address the concerns or whether it will make a difference.

Commissioner Karp felt that with proper draftsmanship, which the Planning Commission should not do, Conditions 22 and 23 could be tied together so that the building of the walls is an absolute condition that must be addressed prior to the issuance of the building permit.

Commissioner Knight understood why staff drafted the conditions as they did, as he felt the Planning Commission could be getting into dangerous territory to require a neighboring property to make improvements as a condition of approval for the applicant’s property. He did not feel the Planning Commission could go to neighboring properties and make conditions on them as part of a project on another property.

Commissioner Tetreault agreed that the way the conditions are currently worded is correct, as the two conditions are separate issues. He noted that ultimately the holders of the easement have the right to withhold their consent to recording any modifications to the easement. Therefore if the owners of 49 or 51 Rockinghorse do not give their consent for the modifications, the owners of the easement can decide not to sign the easement agreement.

Commissioner Gerstner felt that the easement provides for public safety and increasing the number of homes at the end of the street changes the condition of the use of the roadway and as such, the easement should be required to be paved as part of this process. He felt that the applicant should have to get the approvals from the neighbors at 49 and 51 Rockinghorse to do the needed improvements and then return to the Planning Commission with the approvals before the Planning Commission gives approval for the project. In addition, he would like to see the retaining wall out of the easement, as he felt the wall in that location is detrimental to the safety of the use of the road.

Vice Chair Cote agreed that the two conditions were properly drafted by staff, as the two issues are separate. She agreed that there is no view related issue and that her concerns about the project have been addressed and was reluctant to continue the item.

Vice Chair Cote moved to deny the appeal and uphold the Director’s decision with the following amendments to the conditions of approval: 1) modify Condition No. 12 to read 139 feet 2 inches rather than 142 feet and change 30 feet to 27 feet 2 inches; 2) modify Condition No. 22 to include the property owner at 49 Rockinghorse; 3) modify Condition No. 24 to include the ficus benjamina in the landscape plan

The motion died to a lack of a second.

Commissioner Tetreault moved to deny the appeal and uphold the Director’s decision with the following amendments to the conditions of approval: 1) modify Condition No. 22 to include the property owner at 49 Rockinghorse; and 2) modify Condition No. 24 to include the ficus benjaminus in the landscape plan, seconded by Chairman Mueller.

Commissioner Tetreault explained that the distinction between his motion and the Vice Chair’s was that he felt that by not having a silhouette and not having plans submitted showing the revisions, it was difficult to deal with. He noted that a significant effort had been made by the applicant to work with his neighbors, however he did not feel it was good practice to mandate the changes without more information. He felt there was a concrete proposal before the Planning Commission that has been reviewed by staff and he could make the necessary findings to approve the project, and for that reason he felt it was appropriate to go forward and approve the project.

Commissioner Knight disagreed and felt that if the two parties have reached some type of compromise there should be no problem in including that agreement in the conditions of approval.

Chairman Mueller asked staff, if the Planning Commission were to approve the project as suggested by Commissioner Tetreault, what latitude does that give the applicant to make an agreement with the neighbor to lower the ridgeline.

Director/Secretary Rojas explained that the condition can be written to set a maximum ridge height so that the applicant can opt to have a lower ridge height if he desires.

Commissioner Gerstner was concerned that this approach would then say approval of the easement is a condition of this project and there are two parties that hold control of the easement and they can negotiate with the applicant as to the height of the structure before they sign the easement agreement. He felt that if there is a maximum height set and were told they could lower the height if they wished, the only reason the applicant would lower the height would be if someone were pushing them in that direction, namely the people holding control of the easement.

Commissioner Karp agreed and felt that the motion made by the Vice Chair was the more appropriate motion to consider.

Vice Chair Cote felt that the Planning Commission has the obligation to address issues of concern in the Conditions of Approval and did not think it was appropriate to defer the concerns to an easement related issue.

Chairman Mueller stated that he would be reluctant to require the applicant to reduce the structure without a silhouette to look at.

Commissioner Tetreault stated there has been some discussion regarding giving veto power to some people for whatever reasons they want, and they could be motivated by issues other than how the road is situated. He felt that the people who own the easement have their own individual property rights, hold those rights, and are independent of anybody who wants to build around it. He felt they have the absolute right to deny any encroachment onto their easement for any reason, and he had no trouble with the neighbors having the right to veto the project by not signing the easement agreement.

The motion to adopt P.C. Resolution No. 2004-23 thereby denying the appeal and upholding the Director’s approval of the Grading Permit (Case No. ZON2003-00088) as amended to include in Condition No. 22 to include the address of 49 Rockinghorse Drive and Condition No. 24 to include ficus benjaminus in the landscape plan failed (3-3) with Commissioners Karp, Knight, and Vice Chair Cote dissenting.


At 9:30 p.m. the Planning Commission took a short recess until 9:40 p.m. at which time they reconvened.


Vice Chair Cote asked Commissioner Gerstner what his specific concerns with the project were.

Commissioner Gerstner explained that he was in favor of lowering the ridgeline of the house per the agreement of the applicant and appellant, he would like to see some condition under which the easement is controlled with regard to the wall and the adjacent property, and he would like to see the wall pulled out of the easement if possible for public safety.

Chairman Mueller asked staff if it was feasible to eliminate the wall that divides the driveway from the 8-foot wide expansion of the easement.

Associate Planner Blumenthal answered that there may be some method to eliminate the wall and grade the two areas together, but staff would want to discuss that with the applicant.

Chairman Mueller opened the public hearing.

Chairman Mueller asked Mr. Rinehart if there was a way to eliminate or reduce the wall by the driveway for public safety issues.

Mr. Rinehart explained that in the civil engineering plan, the wall along the driveway does not go all the way to the road. He explained that if his neighbor at 49 Rockinghorse will allow him a little triangular shaped transition area to get back onto the road from the widened area, it was quite possible to eliminate the wall. He also explained that if he leaves the house at 30 feet and raises the garage up 2 feet 10 inches, then the portion of the driveway would be flat at the head of the driveway and the wall may not be necessary.

Commissioner Gerstner felt that there could be a reasonable solution and emphasized that he was concerned about the steepness of the driveway and how it transitioned onto a steep section of the street. He explained that he would only want to condition the project to the extent that there was some reasonable solution to eliminate the wall.

Chairman Mueller closed the public hearing.

Vice Chair Cote moved to adopt P.C. Resolution No. 2004-23 thereby denying the appeal and upholding the Director’s approval of Grading Permit (Case No. ZON2003-00088) with the following amendments: 1) Condition No. 12 to read 27 feet 2 inches and adjust 142 feet to 139 feet 2 inches; 2) add 49 Rockinghorse Drive in Condition No. 22; 3) include ficas benjamina in Condition No. 24; and 4) prior to submittal of the plan to building and safety plan check the applicant shall submit a plan to the Director of Planning, Building, and Code Enforcement for review and approval that will revise the driveway to eliminate the wall on the easement in order to improve public safety. Seconded by Commissioner Karp.

Chairman Mueller moved to amend the motion to eliminate the change to condition no. 12, seconded by Commissioner Tetreault. The amendment failed, (2-4) with Commissioners Karp, Knight, Gerstner, and Vice Chair Cote dissenting.

Chairman Mueller felt it was important to see the driveway plans finalized and the silhouette marked correctly before making a decision on this project, as these are two substantial changes that should be reviewed by the Planning Commission, staff, and the appellants.

The motion was approved, (4-2) with Commissioner Tetreault and Chairman Mueller dissenting.

Chairman Mueller noted that Agenda Item No. 4 appeared to be a fairly simple application and suggested changing the agenda to hear item no. 4 before item no. 2. The Planning Commission agreed.


4. Grading Permit (Case No. ZON2003-00642): 30130 Cartier Drive

Associate Planner Blumenthal presented the staff report explaining the scope of the project and the need for the grading permit. He stated that staff has made the necessary findings for the Grading Permit and is recommending approval of the project.

Vice Chair Cote asked staff to clarify how they made their finding regarding the amount of grading on the extreme slope area.

Associate Planner Blumenthal explained that typically the City does not allow construction on extreme slopes, however since this lot was created under the County the City does have to allow some type of construction on the property subject to the City’s discretionary review process. He explained that staff felt the grading for this project was limited to the access around the house, the actual structure, and to minimize the height of the retaining walls.

Chairman Mueller opened the public hearing.

Sid Khajavi 4040 Palos Verdes Drive North (architect) noted that this is a very unique site and construction on such slopes will inevitably result in large amounts of grading and high retaining walls. He stated he was available for any questions.

Chairman Mueller closed the public hearing.

Commissioner Karp moved to adopt P.C. Resolution No. 2004-24 thereby approving the Grading Permit (Case No. ZON2003-00642) as presented by staff, seconded by Commissioner Gerstner. Approved, (6-0).


2. View Restoration Permit No. 123: 28541 Palos Verdes Drive East

Director/Secretary Rojas polled the Planning Commissioners as to who had visited the applicant’s property. All commissioners had visited the property.

Project Coordinator Nelson presented the staff report giving a brief history of the project. She explained that staff was adding a condition to the project that staff and the city arborist will monitor the trimming to assure the work is done in accordance with the conditions of approval. She noted a change on page 5 of the Resolution that should read the foliage should be trimmed 6 to 10 feet rather than 6 to 8 feet.

Commissioner Knight asked if any of the foliage was considered hedges or if they were all considered trees.

Project Coordinator Nelson answered that the foliage consists of trees, noting that much of the foliage seen in the photo is offshoots of the major trees and part of the tree.

Commissioner Knight asked if any of the foliage was considered to be a fire hazard by the fire department.

Project Coordinator Nelson responded that staff did not contact the fire department.

Commissioner Knight asked staff what was meant by "heavily laced".

Project Coordinator Nelson explained that heavily laced means that the tree is laced in a manner that it opens up a view through the tree.

Commissioner Knight noted that there were recommendations in the staff report to trim some of the foliage below 16 feet and asked if the View Restoration Guidelines allows for that type of recommendation.

Project Coordinator Nelson explained that as long as the foliage is at least 16 feet tall or over the ridgeline of the foliage owner’s residence the trees can be trimmed below the 16-foot level provided the tree will still be over the ridgeline.

Commissioner Knight noted that in Condition No. 8 the language says the trimming shall occur no sooner than one year, yet the guidelines state review at a minimum of one year, and asked how that would be resolved.

Project Coordinator Nelson stated that the condition will be revised to correspond to the Guidelines.

Commissioner Karp referred to a letter dated September 6, 2001 signed by the Whites and noted that Mr. White waived his right to make the application and asked why the Planning Commission was hearing the case.

Project Coordinator Nelson explained that the issue of an agreement that the two parties have entered into is a civil matter and is something the City cannot address and the City needs to proceed with the view restoration process.

Vice Chair Cote referred to a previous Site Plan Review and Minor Exception Permit on the White’s property and asked if there was anything in the conditions of approval of those applications that addressed foliage.

Director/Secretary Rojas explained that there are cases where foliage is addressed in conditions of approval, however without the file for the project he was not able to answer the question. He noted, however, that if there were conditions they would address the foliage on the White’s property and not foliage on the Zaccaro property.

Commissioner Tetreault could see a potential where the White’s foliage may impact a view restoration application if the foliage in question, which was not to be removed, itself screened a view, and when they removed this foliage it opened up a view. Now the Whites are saying that there are plants beyond their own screened foliage which are blocking their view.

Project Coordinator Nelson did not believe that was the situation, however even if it was the situation this would still be a private agreement which the City cannot enforce.

Chairman Mueller referred to photo no. 1 in the staff report and the discussion that the foliage along the wall shall be trimmed to the level of the wall. He asked staff if the height of the wall is equal to the ridgeline, above the ridgeline, or below the ridgeline of the Zaccaro residence.

Project Coordinator Nelson explained that the height of the wall is slightly below the ridgeline of the Zaccaro residence, and staff could make this recommendation because the foliage seen is mainly continuation of the major tree, as there are multiple trunks to the main tree, and the main tree will remain greater than 16 feet in height and be over the Zaccaro ridgeline. She also noted that this is very fast growing foliage and trimming the foliage below the ridgeline would keep the foliage owner from having the expense of trimming the foliage too often.

Chairman Mueller asked staff to explain any privacy issues in this application.

Project Coordinator Nelson explained that privacy is considered in cases from the applicant’s viewing area, which is where staff is making the finding of privacy. She stated that, as viewed from the viewing area, staff did not think privacy was an issue.

Commissioner Gerstner asked if there was any individual tree that was being proposed to be cut to a level below the ridgeline of the Zaccaro residence.

Project Coordinator Nelson answered that there was not.

Commissioner Gerstner referred to the 2002 photograph and using this photograph as a reference point and asked to describe what staff’s goal is in the trimming and if the foliage is trimmed exactly as staff is recommending how would that relate to the 2002 photograph.

Project Coordinator Nelson explained that the foliage in the foreground would come down to the level of the wall and trimming would occur every 6 months or to a point she indicated on the photograph. She explained that what staff was trying to achieve was opening up and creating a view window through the foliage but trimming foliage or raising the crown of the foliage.

Chairman Mueller opened the public hearing.

James White 28541 Palos Verdes Drive East (applicant) stated that he agrees with the recommendations of the staff report. He began by explaining that the foliage referred to in the agreement that has been discussed is down the driveway near the Menjou property and has not been cut except for any foliage that was damaged during the construction of his remodel. He stated that he has lived in his home since 1979 and has been asking Mr. Zaccaro to cut the trees and bushes to give him a view since they moved in. He felt that Mr. Zaccaro has a beautiful view from his property and that he felt he should be able to have a view from his property and to have the view that was there before the trees grew up and blocked that view.

Diana Menjou 1 Bronco Drive (foliage owner) gave some background information regarding the last three years as it refers to the Whites and the verbal and written agreements that were made concerning the trees and foliage. She explained that the Whites added a bedroom to their home that is three feet closer to her property and closer to the Zaccaro property than current Rancho Palos Verdes property lines dictate. She stated that the Variance was granted and the Zaccaros and Menjous appealed this decision. However, an agreement was made between the parties in which the Zaccaros and Menjous would drop their appeal to the Variance in exchange for the Whites confirmation that they would not ask the Zaccaros or the Menjous to trim, cut, or remove any of their existing trees or foliage, with the exception of the trimming Mr. Zaccaro has been doing over the past 12 years for the Whites providing them with a city view. She stated that the Whites then applied for a view restoration permit, which she felt was in clear breech of their agreement. She explained that the Whites have never asked her to trim any foliage on her property and that the view area was entirely over the Zaccaro property and felt this was done because of their objection to the Variance application. She stated that she, in good faith and as a good neighbor, expected and believed the Whites would hold up their end of the agreement, and for this reason alone she felt the Planning Commission should deny their request. Further, she did not think the best and most important view should be taken from the newly added master bedroom. She also felt that the Pepper tree, Canary Island Pine, and a majority of the Zaccaro foliage is older than 50 years and should be grandfathered under the Guidelines and excluded from trimming, and would be willing to get a certified arborist to verify this if needed. She stated that the negative financial implications of putting a lifetime lien on her property, as the proposal will do, are huge and will affect any and all owners. She stated that based on the facts presented, she believed the Whites request should be denied and as this is all a matter of public record, hoped that the Planning Commission would not condone and thereby sanction this type of behavior by the Whites as it could set a dangerous precedent for any further negotiations concerning Variances and view restoration.

John Zaccaro 28531 Palos Verdes Drive East stated that he purchased his home in 1968 from Ray and Barbara Wallace and he spoke with Mrs. Wallace this week regarding the View Restoration issue. He read a brief letter from Mrs. Wallace in which she stated that during the years she lived at the property she was certain she was unable to see the property above her because of trees and other plantings which afforded her total privacy, and to her recollection those trees were there when she bought the house in 1955. He also read a brief letter from Charlene O’Neal, a real estate agent in the area, which stated that the Zaccaro property is like a park and the privacy it affords. She stated the site is meticulously maintained and to alter this park like setting would greatly affect the property value of the home. Mr. Zaccaro read a short letter from his arborist, Dave’s Tree Service, which stated that the company has pruned the trees on the Zaccaro property since 1992 for beauty, safety, and to improve the view for the neighbors to the south by opening up view windows, thinning trees, and removing large branches to give the neighbors a view. The letter went on to say that over the years the following trees have been trimmed for view restoration: two very mature ficus trees; canary island date palm, which he has taken up another 10 feet since the picture displayed for the Planning Commission; a Chinese Elm and an Ash Tree have been pruned and view windowed; the Pepper tree in the Corral has been topped severely for the view of the neighbor; the Pittosporum, Oleander, and Calycanthus were pruned, reduced, and view windowed as necessary. The letter stated that pruning on the trees was done taking into account the shade garden that is planted beneath the trees. Lastly, it was the arborists opinion that to cut the line of Pitisporum trees comprising the hedge in the White’s primary viewing area to just above the brick wall would severely damage the trees, they would become diseased, and some would die. Mr. Zaccaro stated that he was willing to do trimming to his foliage, however he was not willing to cut mature trees down to their stumps.

Vice Chair Cote wanted to clearly understand Mr. Zaccaro’s position on each of the trees in question and referred to photo no. 1 in the staff report. She noted that the staff recommendation for pittosporum 1 and 2 was to raise the crown to a height that is 6 to 10 feet above the ridgeline, and asked Mr. Zaccaro’s opinion on that recommendation.

Mr. Zaccaro stated that he would like to like to trim the pittosporum up above, like a canopy, and open a view window. He did not think it was necessary to cut it as high as staff was recommending and agreed to cut it above the ridgeline for the White’s view.

Vice Chair Cote referred to pittosporum 3 and 4, the oleander, and the calycanthus and asked Mr. Zaccaro his opinion on staff’s recommendation.

Mr. Zaccaro was in opposition to staff’s recommendation regarding this foliage, noting this hedge above the brick wall doesn’t grow fast as there is hardly any sun on this side of the property. He stated that he would trim the foliage, however not to the level of the wall, but possibly 2 to 3 feet above the wall or to the height of the ridgeline.

Vice Chair Cote then referred to photo 2 and the Brazilian Pepper and staff’s recommendation to remove and not replace, or to trim to the level of the garden wall, and asked Mr. Zaccaro his opinion.

Mr. Zaccaro explained that the Brazilian Pepper serves a purpose and he tops it every two years to make it thick. He noted that this tree is not in the White’s primary viewing area.

Vice Chair Cote then read recommendation no. 4 to remove them maple and cypress tree or trim to the height of the garden wall.

Mr. Zaccaro was not aware that he had a maple tree on his property.

Project Coordinator Nelson identified a tree on the photograph that the City Arborist had identified as a maple tree, noting that the tree was in very poor condition.

Mr. Zaccaro felt the cypress was misidentified and is actually a cedar, and noted that the tree has been there for over 40 years and is not in the primary view area.

Vice Chair Cote asked staff to clarify the pittosporum referred to in no. 5 of the staff report.

Project Coordinator Nelson identified the foliage on the picture.

Mr. Zaccaro responded that he would be willing to canopy the pittosporum to open up a view window.

Vice Chair Cote discussed the ficus that staff recommends trimming down to the level of the ridgeline.

Mr. Zaccaro explained that the ficus were trimmed a month ago when he trimmed the palm and are 7 to 8 feet above the ridgeline and were moderately laced.

Vice Chair Cote asked about the Chinese Elm.

Mr. Zaccaro explained that the Chinese Elm is difficult to see in the photograph, and stated that he would have no problem trimming this tree down below ridgeline so he can maintain shade for the vegetation under the tree, provided the Ash tree remains and is heavily laced.

Vice Chair Cote asked about the schefflera.

Mr. Zaccaro explained these are on the side of the house near the horse corral and noted that the he has been gradually raising the crown of these trees over the last five years. He noted that his arborist has advised raising the crown about 4 to 5 feet a year on these trees and to not try to take all of the lower foliage at one time. He stated that he prefers to keep the canopy of the tree for shade rather than lower the tree.

Vice Chair Cote asked Mr. Zaccaro about the recommendation for the ash tree.

Mr. Zaccaro explained that the ash tree is approximately 100 feet high and shades his entire house. He did not have any objection to doing what he did 2 years ago, which was to heavily lace the tree and raise the crown, but not until November or December.

Mr. White (in rebuttal) explained that the view he is asking for does partially go through the Brazilian Pepper tree and is a view obstacle to his main view. He stated that the pittosporum and the oleander along the wall are not a problem if they are at the level of the wall, however two feet above the wall is of no value. He explained that he was not asking Mr. Zaccaro to take out his trees and tear everything down, simply to trim or raise the trees to give him a legitimate view.

Chairman Mueller discussed the staff recommendations for the foliage at the Menjou property and asked Mrs. Menjou her opinion regarding the staff recommendations. He began with the Canary Island Pine and the recommendation to lace the tree heavily.

Mrs. Menjou stated that she would be against that recommendation noting that she has trimmed and/or laced three pines on her property over the years and all three have died.

Chairman Mueller then discussed the rear side fence and the foliage and asked Mrs. Menjou her opinion on the staff recommendations.

Mrs. Menjou explained that the wording is extremely vague, as her driveway is 178 to 180 feet and the wording does not specify what part of the driveway is being discussed. She stated that she may not have an issue with this, however she needs the recommendation to be more specific, noting that she may not be opposed to trimming the foliage along the east side of her property. Discussing the Aleppo Pine, Mrs. Menjou noted that the tree is already laced and did not know if it needed further lacing, and would prefer not to further lace the tree; regarding the pittosporum, she agreed with the staff report to trim the foliage down 6 to 10 feet in that area; regarding the Brazilian Pepper tree, she had concerns as she has trimmed the tree for other neighbors and once done it sends all of the light to the Zaccaro property.

Commissioner Gerstner asked Mrs. Menjou if she preferred the Brazilian Pepper be laced rather than topped.

Mrs. Menjou answered that she would prefer the tree be laced, but consideration should be given to how that would affect the Zaccaro property.

Chairman Mueller closed the public hearing.

Commissioner Tetreault stated that he had difficulty trying to envision exactly where the view was and what foliage was involved in that view area. He was able to see some foliage on the Zaccaro property that seem to be blocking a view in a distance, however regarding the Menjou property, he was not able to identify the foliage in the view area, noting that if anything this foliage is in the peripheral part of the White’s viewing area.

Commissioner Gerstner compared the 2002 photograph and the current photograph and felt that there is a distinct difference and trees do need to be trimmed. He wanted to be particular, however, on which trees are trimmed to try to maintain the character and quality of not only the Zaccaro residence, but the entire neighborhood. He felt that some of the foliage identified is peripheral and that the Planning Commission will have to be very specific regarding the trimming of the foliage.

Commissioner Knight felt that some trimming to the trees on the Zaccaro property could create a view for the applicant and be satisfactory to Mr. Zaccaro. He had difficulty with Finding D that view impairment did not exist when the lot created. He felt that there was possibly some evidence that trees may have existed at that time.

Project Coordinator Nelson explained that staff did not have any records of whether or not trees existed when the lot was created and staff does not have anything specific documents relating to the foliage that existed at that time.

Commissioner Knight discussed the pittosporum and other foliage along the wall and felt that it could be left a little higher than staff was recommending and still be within the ridgeline of the home below. He felt doing this would help bulk out the foliage a little and help create a little more privacy for the foliage owner.

Commissioner Karp felt the logical way to resolve this issue in fairness to all parties would be for the Commissioners to meet on the site to see the trees. He felt that trying to determine a distant vision on a two-dimensional plane does not work.

Director/Secretary Rojas explained that to move the meeting to the site the Planning Commission could adjourn to a specific date and time at a specific address (the foliage owners).

Vice Chair Cote stated that she strongly supports the pre-application process that allows the member of the staff to work on site and in discussions with the foliage owner and applicant, noting that she strongly supports view restoration issues could be better served with the previous process with the View Restoration Coordinator and Commission. However, given the fact that both the foliage owners have given very specific feedback on the recommendations, she was comfortable moving forward with an item-by-item, very detailed recommendations on the foliage. She discussed Finding B, stating that the finding was very difficult for her to make regarding the recommendation staff had on Item No. 2. She noted, however, that the foliage owner was willing to trim the foliage a foot or 2 above the ridgeline, and she would be more comfortable making the finding with that adjustment. She also questioned whether the foliage on the Menjou property impacts the primary viewing area of the White’s residence.

Chairman Mueller stated that he had visited the site, and while it was difficult to see through the foliage, he felt the staff report was reasonably accurate. Regarding the trees on the Menjou property, he felt the foliage was to the side of the view rather than in the center of the view, and felt that staff’s recommendations were accurate. He felt that, for the most part, it appears that raising the crown and lowering some of the foliage down to try to restore the view underneath the foliage seems to be a reasonable compromise.

Director/Secretary Rojas stated that staff had retrieved the project file for the White’s addition, and noted that in looking at the Conditions of Approval there is no reference to any foliage and therefore any decisions made would not conflict with any previous conditions of approval.

Vice Chair Cote moved to approve the staff’s recommendations with the following modifications: 1) Pittosporum 1 and 2 to be as recommended by staff; 2) Pittosporum 3 and 4 and the Oleander to be trimmed and shaped to a level that is 3 feet above the White’s building pad level and trimmed bi-annually beginning 6 months after the initial trimming or at such time the foliage grows to a point that is 4 feet above the White’s pad height; 3) The Brazilian Pepper Tree, the Cypress, the Maple, and the Pittosporum (item 3 in the staff report) shall not be trimmed, as the finding could not be made that they do not significantly impact the view; 4) remove the lower fronds of the palm to restore the view through the tree; 5) the Ficus should be done per the staff recommendations, but should be done in the winter months to not severely impact the tree; 6) the Chinese Elm be trimmed to the ridgeline of the Zaccaro residence.

Chairman Mueller questioned if all of the trees being trimmed should also be shaped.

Project Coordinator Nelson clarified that when the trees are trimmed they are also shaped and cleaned up.


At 12:35 a.m. the Planning Commission took a short recess until 12:40 a.m. at which time they reconvened.


Director/Secretary Rojas noted that it was after midnight and pursuant to the Planning Commission rules no business is to be conducted after midnight without the Commission agreeing to waive the rules.

Commissioner Gerstner moved to continue the item to the June 8, 2004 Planning Commission meeting, seconded by Vice Chair Cote. Continued, (5-1) with Chairman Mueller dissenting.

3. Review of the City Tree Review Permit process (Case No. ZON2004-00160):

Continued to the June 8, 2004 Planning Commission meeting.

5. View Restoration Permit No. 145: 28016 Calzada Drive

Commissioner Knight moved to continue the item to June 22, 2004, seconded by Commissioner Gerstner. Continued, (6-0)


6. Review of the City’s View Restoration Guidelines

Commissioner Gerstner moved to continue the item to the June 22, 2004 meeting, seconded by Vice Chair Cote. Continued, (6-0).


7. Minutes of May 11, 2004

Continued to the Planning Commission meeting of June 8, 2004.


8. Pre-Agenda for the meeting of June 8, 2004



The meeting was adjourned at 12:47 a.m.