CITY OF RANCHO PALOS VERDES
JUNE 22, 2004
CALL TO ORDER
The meeting was called to order by Chairman Mueller at 7:00 p.m. at the Fred Hesse Community Room, 29301 Hawthorne Boulevard.
Commissioner Van Wagner led the assembly in the Pledge of Allegiance.
Present: Commissioners Gerstner, Karp, Knight, Van Wagner, Vice Chair Cote, Chairman Mueller
Absent: Commissioner Tetreault was excused
Also present were Director of Planning, Building, and Code Enforcement Rojas, Project Coordinator Nelson, Project Coordinator Alvarez, and Recording Secretary Peterson.
APPROVAL OF AGENDA
The Planning Commission unanimously approved the agenda as presented.
Director/Secretary Rojas distributed one item of correspondence regarding Agenda Item No. 3 and a letter from a resident regarding a proposed addition in Palos Verdes Estates.
Chairman Mueller announced that the first meeting of the Residential Development Standards Steering Committee would be held on Wednesday, June 23.
COMMENTS FROM THE AUDIENCE REGARDING NON-AGENDA ITEMS
1. Minutes of May 11, 2004
Commissioner Knight noted clarifications on pages 3, 15, and 16 of the minutes.
Vice Chair Cote noted a typo on page 11 and an omission on page 14 of the minutes.
Commissioner Knight moved to approve the minutes as amended, seconded by Commissioner Van Wagner. Approved, (4-0-2) with Commissioner Karp abstaining since he was absent from the meeting and Chairman Mueller abstaining since he was absent from the last half of the meeting.
2. Minutes of May 25, 2004
Commissioner Knight noted a clarification to page 11 of the minutes.
Commissioner Knight moved to approve the minutes as amended, seconded by Commissioner Karp. Approved, (4-0-1) with Commissioner Van Wagner abstaining since he was absent from the meeting.
3. View Restoration Permit No. 123: 28541 Palos Verdes Drive East
Commissioner Van Wagner stated that he was not present at the meeting when this item was discussed and he had not reviewed the tape or the minutes, and therefore was recusing himself from hearing this item.
Director/Secretary Rojas polled the remaining Commissioners as to who had visited the site. All of the Commissioners had visited the site and could therefore participate in the public hearing.
Project Coordinator Nelson presented the staff report, explaining that at the May 25th meeting Vice Chair Cote had started a motion, which is summarized in the current staff report, noting that the motion was not completed since the meeting was adjourned due to the lateness of the hour. She explained that between the May 25th meeting and this meeting there were attempts to resolve the issues between the applicant and the foliage owners, however no agreement was reached. She distributed a cross sectional diagram to the Planning Commission which she hoped would clarify staff’s trimming level recommendations.
Commissioner Knight referred to a letter in the staff report from Mr. Zaccaro in which he brought up three main issues. He noted that the first concern was the defoliation of the trees. Commissioner Knight stated that his understanding of the staff report was that there would be no defoliation of the trees, rather trimming below the canopy was recommended.
Project Coordinator Nelson answered that was correct.
Commissioner Knight stated the second concern in the letter was the age of the trees, however he noted that staff agreed that the trees are approximately 50 years old. He stated that the third concern raised in Mr. Zaccaro’s letter was that his licensed arborist had a concern for the health of the trees if they are pruned pursuant to the staff report. He noted, however, that the arborist report addressed cutting the trees to ground level and not raising the crown of the trees as staff was recommending, and asked staff if that was correct.
Project Coordinator Nelson answered that was correct.
Commissioner Karp moved to re-open the public hearing for the purpose of seeking additional information from the applicant and foliage owners, seconded by Commissioner Gerstner.
Chairman Mueller stressed that the purpose of re-opening the public hearing should be only to hear any new information that would be relevant to the case.
Commissioner Karp stated that he had specific questions for the applicant.
Chairman Mueller opened the public hearing.
Commissioner Karp asked Mr. White (applicant) about a letter dated September 6, 2001 addressed to the Menjous and Zaccaros, which stated that contingent on Mr. Zaccaro withdrawing his appeal to the City of Mr. White’s proposed addition, Mr. White agreed to retain the existing landscape along the property line.
Mr. White stated that he did write that letter, however the referenced foliage has nothing to do with foliage in front of his house blocking his view, instead the subject foliage referenced in the letter concerned the foliage along the Menjou’s driveway.
Commissioner Karp noted that he did not read the letter that way, noting that in his opinion Mr. White agreed to maintain the existing landscaping.
Mr. White stated that the letter was referring to the landscaping only on his property, not the Menjou property, and that he was agreeing not to cut down the tree or the oleander on his property.
Chairman Mueller closed the public hearing.
Chairman Mueller felt that the Planning Commission should try to continue crafting the motion that was started at the previous meeting.
Director/Secretary Rojas explained that the new Resolution that is attached to the new staff report (page 4 of 8) summarizes the partial motion made at the last meeting.
Project Coordinator Nelson summarized by explaining that at the previous meeting Vice Chair Cote had begun a motion stating the following: 1) regarding photo no. 1, the crown of the pittosporum should be raised to a height that is 6 to 10 feet above the Zaccaro residence, and trimming should occur every 6 months; 2) pittosporum 3 and 4, the oleander, and the calycanthus shall be trimmed down to a level 3 feet above the White’s building pad and trimmed bi-annually beginning 6 months after the initial trimming or until such time as the foliage grows to a height that is 4 feet above the White’s building pad; 3) no action recommended on the foliage in photo no. 2, which is the brazilian pepper, the maple, the cedar, and the pittosporum; 3) regarding the giant palm, the discussion was to leave the recommendation as it is, even though trimming has been performed; 4) the ficus to be trimmed down and shaped to the level of the ridgeline, and trimming to occur on a bi-annual basis beginning 6 months after the initial trimming; 5) the Chinese elm to be trimmed down the ridgeline of the Zaccaro residence and trimming to occur every 6 months, noting that this is what the foliage owner had requested on this tree.
Chairman Mueller referred to photo no. 2 and asked staff if any of the foliage was blocking any significant landmarks.
Project Coordinator Nelson explained that the view is a continuation of the city lights and did not feel there were any significant landmarks in that viewing area.
Commissioner Karp asked staff to indicate on the aerial photograph the shrubbery Mr. White was discussing on the west side of his property.
Project Coordinator pointed out the shrubbery in question, noting the foliage is on Mr. White’s property.
Vice Chair Cote asked staff if raising the crown of the schefflera would help restore the White’s view.
Project Coordinator Nelson explained that the schefflera was currently peering over the ridgeline and did not think raising the crown would restore the view, which is why staff was recommending trimming the schefflera to the ridgeline.
Vice Chair Cote continued the motion, recommending that 1) follow staff recommendation for the schefflera; 2) staff recommendation for the ash, however the initial trimming not be until November or December; 3) on the various view impairing foliage, as recommended by staff in the staff report; 4) on the Menjou property the aleppo pine, the eucalyptus, the pittosporum, and the brazilian pepper the action shall be no trimming at this time; 5) the canary island pine be laced heavily and the trimming occur annually during the cool months; 6) and no changes to the staff recommendations on the rest of the draft resolution, seconded by Commissioner Gerstner.
Commissioner Knight asked staff, if after the trimming occurs, should staff determine that the foliage in the peripheral view causes a problem in the view, will the matter be brought back to the Planning Commission or if a decision will be made at the staff level.
Project Coordinator Nelson explained that if additional action is necessary, the item would not come back to the Planning Commission for further review.
Commissioner Karp hoped that the Planning Commission takes into account the financial burden placed on the foliage owners, as it will cost several thousand dollars every year to maintain the trees, which he felt was a reduction in the value of their property. He felt the City should be very careful when imposing economic consequences on people.
Chairman Mueller felt that as part of the Planning Commission duties it was important to not necessarily vote according to their conscience, but rather to look at the Ordinance and the findings the staff has made, balance those against the privacy concerns of the foliage owner, and attempt to craft a motion to restore the view if the view is significantly impaired. He did not think that taking into account financial obligations is within the Planning Commission’s purview.
Vice Chair Cote agreed, noting that the role of the Planning Commission is to make the six mandatory findings for a view restoration permit, and of those six findings none of them deal with economic impact associated with the trimming. She stated that in this application, she could make all of the necessary findings.
Chairman Mueller discussed the trees on the Menjou property, and felt that these trees could possibly affect the view from the White’s main viewing area.
Chairman Mueller moved to amend the motion to restore the staff recommendation with regards to photo no. 3, involving the Aleppo pine, the pittosporum, and the brazilian pepper on the Menjou property.
The amendment failed due to the lack of a second.
Director/Secretary Rojas noted that there are two submitted speaker slips. He explained that although the public hearing was closed at the previous meeting, he had checked with the City Attorney, and she felt that since the item is on the agenda, it would be best to allow the speakers to speak if they are requesting to do so.
Chairman Mueller opened the public hearing.
Jim White 28541 Palos Verdes Drive East (applicant) stated that staff has been to his site several times to evaluate the foliage and he felt that the staff report and recommendations in the report were very fair and reasonable. He stated that the foliage on the Menjou property does affect his view.
Vice Chair Cote asked Mr. White if there was any significant landmark through the Menjou property that he felt was being obstructed by the foliage.
Mr. White stated that he would like to have as wide a perspective of the city lights as possible, and the Menjou foliage was in the way of that view.
Chairman Mueller asked Mr. White if, after trimming of the trees and foliage on the Zaccaro property, if the foliage on the Menjou property would then become more visible and more apparent in terms of blocking the view.
Mr. White stated that he felt that was the case.
John Zaccaro 28531 Palos Verdes Drive East (foliage owner) stated that he and the Menjous had agreed to drop their appeal of Mr. White’s variance request in exchange for his agreement that foliage on their properties would not have to be trimmed. He addressed privacy, and stated that what the Planning Commission was recommending in their resolution would clearly infringe on his privacy, as the Whites will now be able to look directly into his bedrooms and bathroom. He stated that the recommendations would pose a severe economic hardship on him, as this amount of trimming would be very expensive.
Vice Chair Cote asked Mr. Zaccaro what specific foliage he would recommend a different opinion on in regards to the privacy issue.
Mr. Zaccaro showed on photo no. 1 how two of his bedrooms and a bathroom are in clear view from the White’s wall and pool area, which are only 28 feet away. He asked that a man 6 feet or taller not be able to look down into his bedrooms or bathroom. He stated that any person that walks by the wall, if the foliage is trimmed to one foot above the wall, will look directly into his bedrooms, which is a privacy issue. He asked that the Planning Commission consider raising the level of the foliage so that it does not impair the White’s view but gives him his privacy.
Chairman Mueller noted that the Guidelines advise giving more consideration to outdoor privacy versus indoor privacy, and asked Mr. Zaccaro what mitigation methods he has on his bathroom and bedroom windows that could prevent someone from looking in.
Mr. Zaccaro asked Chairman Mueller if he was suggesting that he keep his windows closed year round, preventing fresh air and light from reaching his bedrooms and bathroom.
Chairman Mueller responded that he was not suggesting that, and that there may be other ways to mitigate the privacy issues such as translucent windows or drapes.
Mr. Zaccaro answered that he was being asked to change his home, as light and air is essential in bedrooms and bathrooms.
Chairman Mueller asked Mr. Zaccaro if he had considered planting foliage closer to his windows so that nobody could see in.
Mr. Zaccaro answered that there is foliage in place already and replacing it would not solve the problem.
Chairman Mueller closed the public hearing.
Vice Chair Cote appreciated the comments from the applicant and foliage owner and noted that Mr. Zaccaro’s privacy concerns are from the indoors rather than the outdoors, and the guidelines indicate giving the outdoor privacy more weight on the decision making process. She therefore did not feel it was necessary to change the motion on the table.
Commissioner Gerstner agreed, and stated that he will maintain his second to the motion.
Commissioner Knight asked staff if they had stood at the wall and looked down onto the Zaccaro property before making the recommendation to cut the foliage to one foot above the wall level.
Project Coordinator Nelson explained that the privacy assessment was made by staff from the viewing area, which is within the house or within 10 feet of the house, and not from the setback area. She stated that if one is standing at the wall looking down you would be in the setback area, and whether this was a view case or not, privacy issues would always be a possibility if the windows are open. She noted that the guidelines are very clear with respect to indoor versus outdoor privacy because of the mitigations that are at a resident’s disposal.
Project Coordinator Nelson noted a proposed change on page 5 of the revised resolution under the subject "various view impairing foliage", that staff felt would be in keeping with other measurements. She suggested that the wording be changed for ease of discussion from "rear side yard fence" to "ridgeline" to keep the resolution consistent.
The Planning Commission agreed.
Regarding privacy, Chairman Mueller felt that the recommendation to trim the foliage along the wall will make the foliage in line with the ridgeline of the Zaccaro residence and he felt it would be very difficult to look down from the White’s residence into the Zaccaro residence. He therefore did not feel there was a privacy issue when combining that with the potential mitigation measures that could be taken to preserve the indoor privacy.
The motion passed, (3-1-2) with Chairman Mueller dissenting and Commissioners Karp and Van Wagner abstaining.
RECESS AND RECONVENE
At 8:30 p.m. the Planning Commission took a short recess until 8:40 p.m. at which time they reconvened.
CONTINUED BUSINESS (cont)
4. View Restoration Permit No. 145: 28016 Calzada Drive
Director/Secretary Rojas polled the Planning Commission as to who had visited the site. All Planning Commissioners present had visited the site.
Project Coordinator Alvarez presented the staff report, giving a brief history of the application. He explained that staff has identified 6 trees on the foliage owner’s rear yard slope, showing a picture taken from the applicant’s property and the trees in question. He identified the different views that were behind the foliage, including the city lights of Long Beach, the Long Beach and Los Angeles harbor, and potentially a view of the Vincent Thomas Bridge. He explained that staff has not determined if the bridge is within the view. He explained that if the trees are trimmed there will be other trees beyond the foliage owner’s property that will very likely affect the view. He concluded by explaining the staff recommendations for the trees in the staff report, and noted that staff did not feel that privacy was an issue as the view was taken from the applicant’s living room area. He did note, however, that because the applicant’s property is so shallow, that if the foliage is trimmed, it would be possible to look into the foliage owner’s rear yard and patio when standing within 5 feet of the rear yard property line. He noted that the applicant’s property is operating as an elderly care facility. He concluded by stating that staff could make the necessary 5 findings and was recommending approval of the view restoration application, as summarized in the staff report.
Commissioner Van Wagner asked if there was any distinction that could be made in regards to this residence being an elderly care facility.
Director/Secretary Rojas explained that no difference could be made, noting that the State of California requires that cities consider residential care facilities as residential uses and not businesses, and the City is pre-empted from regulating residential day care facilities.
Commissioner Van Wagner asked staff to clarify the recommendations for the carrot wood tree.
Project Coordinator Alvarez explained that staff was recommending the lateral branches of the carrot wood tree be trimmed back towards the main trunk to restore the view.
Commissioner Karp noted that the applicant’s property is not where the applicant resides and this is the Martz business location.
Commissioner Knight asked staff if they were recommending deferring the trimming of trees 7 through 10 in the staff report depending upon where staff locates the Vincent Thomas Bridge.
Project Coordinator Alvarez explained that was correct, as staff felt they would have a better understanding of the nature of the view to the right of the view frame once the pittosporum trees in the center of the view are trimmed down.
Commissioner Knight asked how staff would approach trees 7 through 10 after the pittosporum was cut, and if the issue would come back to the Planning Commission at that time.
Project Coordinator Alvarez answered that it would be handled at the staff level.
Commissioner Gerstner felt that if trees 7 through 10 are blocking the view of the Vincent Thomas Bridge, the trimming required to restore the view may be significant as the trees are all lined up. He asked staff if they had formulated any recommendations on how those trees are to be trimmed to restore the view of the bridge, if indeed they are blocking the view of the bridge.
Project Coordinator Alvarez explained that staff had considered windowing the pine tree (tree no. 7), topping the Cypress tree, and raising the crown of the ash tree. He stated that staff felt the most significant problem would be the palm tree, as it is quite possible the entire head of the palm tree would impact the view after all of the other trees are trimmed. He stated that staff may extend the offer to the foliage owner to trim the palm or remove the tree.
Commissioner Gerstner asked staff if the applicant has commented on the amount or scope of the view they are trying to recover.
Project Coordinator Alvarez answered that the applicant has indicated that she was most interested in opening up the view to the center and left of her property, but was also anxious to open up the view of the Vincent Thomas Bridge if that was possible.
Vice Chair Cote asked staff to clarify the area where the applicant had offered to plant a hedge on the foliage owner’s property to help with the privacy concerns.
Project Coordinator Alvarez showed on a photograph the area in question along the rear yard property line.
Commissioner Knight asked if the View Restoration Ordinance addresses privacy only from the viewing area.
Director/Secretary Rojas explained that staff typically does their analysis from the viewing area, as the Ordinance discusses a reasonable protection of privacy, and staff feels that it is unreasonable to expect privacy protection at the very edge of a property line or yard.
Chairman Mueller opened the public hearing.
Laura Martz 28016 Calzada Drive (applicant) felt that the recommendations in the staff report are very fair. She stated that she would be happy to plant flowers or some other type of foliage along the rear property wall to help prevent people from being able to look down onto the foliage owner’s property. She stated that she used to be able to look down and see the bridge, harbor and cruise ships and even though it is an elderly care facility, the residents enjoy looking at that view.
Commissioner Gerstner asked Ms. Martz if she remembered having a view of the Vincent Thomas Bridge from inside the house.
Ms. Martz answered that she could not recall if it was from inside the house, but could remember seeing the bridge from the patio area.
Commissioner Gerstner asked Ms. Martz if she was still willing to plant some type of hedge along the foliage owner’s property.
Ms. Martz answered that she would be willing to do whatever it would take to restore her view and keep the foliage owner happy.
Commissioner Van Wagner asked Ms. Martz if she had any plans to trim or remove the tree in her backyard.
Ms. Martz answered that she had no plans to remove the tree but keeps it trimmed and thinned out, noting that the main part of the view is to the right of the tree where the harbor, bridge, and cruise ships can be seen.
Mark Hamburg 281195 Montereina Drive (foliage owner) stated that he was concerned that if a hedge were planted on his side of the wall it would be very difficult to maintain, as the slope is very steep. He stated that he was agreeable to trimming the foliage to a certain point on the back slope provided that people within a 10-foot area could not see into their backyard. He suggested a hedge on the applicant’s side which could be more easily maintained and would discourage people away from the rear property wall. He felt that the palm tree was most likely in the way of the tops of the supports for the Vincent Thomas Bridge rather than the full view of the bridge. He stated that the palm has a trunk of approximately 5 feet in diameter and felt that it may have been an original tree. He stated that another concern was the amount of traffic in the backyard area that results from any business, and because of that extra traffic he would strongly recommend expanding the viewing area to 10 feet rather than 5 as suggested by staff. He questioned how much of a view his trees were blocking behind the tree on the Martz property.
Commissioner Van Wagner asked Mr. Hamburg why he did not participate in the early negotiation process in the beginning of this process.
Mr. Hamburg answered that he did not feel that he was the proper person to be making these types of decisions and he wanted some type of mediating body involved.
Commissioner Karp asked Mr. Hamburg if he would be agreeable to planting the hedge on his property if the applicant agreed to allowing the trimming be done and access granted from her side of the property.
Mr. Hamburg replied that he would be more comfortable if the hedge were planted on the applicant’s side of the fence, as it would not be as difficult to trim and it would keep people from approaching the edge of the fence and giving them additional privacy.
Chairman Mueller asked Mr. Hamburg if he were to plant a hedge a little further down on his slope but was allowed to let it grow to the top of the property line wall, wouldn’t that provide more privacy to his pool area.
Mr. Hamburg answered that was correct, however he did not know how he would maintain it and top it safely.
Chairman Mueller asked Mr. Hamburg, if the palm tree is indeed blocking the view of the bridge, did he have any suggestions on how to mitigate that problem, and asked if removal and replacement would be an option.
Mr. Hamburg felt that the palm tree is a very massive tree with an enormous trunk and he did not know what suggestions to make. He stated that removing the tree would not be his first choice, however he would most likely agree to the removal. He stated that he was more interested in protecting tree no. 9, which is a beautiful mature tree which drops foliage for approximately 7 months out of the year.
Laura Martz (in rebuttal) stated that she had no objection to putting the hedge on her side of the property.
Mr. Hamburg (in rebuttal) appreciated the agreement by the foliage owner to plant the hedge on her side of the property, as that would alleviate much of their privacy concerns.
Commissioner Knight stated that the recommendation by staff is to trim the pittosporum, however the pittosporum grows very fast and asked Mr. Hamburg if the maintenance was going to be a problem.
Mr. Hamburg explained that he can access and move around the pittosporum fairly easily. He stated that if the new hedge is mature and fully filled in he may consider removing the pittosporums, as they only provide visual blockage and do not add any significant value or beauty to the backyard.
Commissioner Van Wagner asked Mr. Hamburg if he was agreeing to the recommendations in the staff report with the caveat that a hedge be planted on the applicant’s property.
Mr. Hamburg answered that in regards to trees 1 through 6, he was in agreement with the recommendations with the addition of a hedge on the applicant’s side to be maintained at the top of the wrought iron fence or at a height of 5 feet 6 inches. He stated that he was a little less certain about the large trees on the property (trees 7 through 10) as he did not know what they would look like after the trimming, and asked that if he was unhappy with the condition of the trees after the trimming, he be offered the option to have them removed at the applicant’s cost.
Chairman Mueller asked Mr. Hamburg if he was completely against trimming down to five feet, even though the applicant may plant a hedge on her side which would be at the same level and keep people away from the fence.
Mr. Hamburg stated that if the applicant were willing to keep the hedge height at the top of the wrought iron fence, he would be fine with trimming to the five-foot height on his side. He stated that he would like to have some type of provision in the resolution that would require the applicant to maintain the hedge at that height.
Chairman Mueller closed the public hearing.
Chairman Mueller asked staff if placing a condition that the applicant plant a hedge on her property was something that the Ordinance allows the Planning Commission to do.
Director/Secretary Rojas explained that the guidelines allow the Planning Commission to mitigate for privacy and the Planning Commission has the ability to put conditions on the applicant’s application.
Commissioner Gerstner asked if the applicant pays for the trees to be trimmed can the Planning Commission they require the applicant to pay for the removal of the trees if the foliage owner is not satisfied with the results of the trimming.
Director/Secretary Rojas stated that the City cannot require the applicant to pay for both trimming and removal of the same tree.
Commissioner Gerstner stated that he had no objection to allow staff to determine if trees 7 through 10 created a significant view impairment of the bridge once trimmed. He felt that even after trimming the palm tree the five-foot trunk would most likely continue to cause view impairment of the bridge and that it may be best to remove the tree. Regarding the ash tree, he noted that it most likely is deciduous tree, however the leaves are not off of the tree for seven months, rather they leaves are off the tree for less than six months. He felt that this applicant has been very open to suggestions and would like to see the ash tree remain as is if possible. If this is not the case, the tree would have to be topped, however that would not be his preference. He agreed with staff recommendations for trees 7 and 8. He appreciated that the applicant is willing to put the hedge on her property, however he was hesitant on requiring the applicant to plant something on her property to protect the privacy of a neighboring property and felt that a hedge could be planted on the foliage owner’s property near the top of the wall and maintained from the applicant’s property. He felt that the pittisporum could be cut to 5 feet, privacy would be maintained, and maintenance would be easier than maintaining the hedge.
Commissioner Knight disagreed, stating that when he stood near the edge of the applicant’s property he could see down to the Hamburg’s backyard. He felt that the hedge was an important mitigation device and the solution of planting it on the applicant’s property was not a bad solution, especially since the applicant appeared willing to plant the hedge. Regarding trees 7 through 10 he was comfortable with allowing staff’s good judgment on the trees, however he felt wording should be added to the condition that if the subject tree is found to significantly impact the view of the Vincent Thomas Bridge from "the primary viewing area" at 28016 Calzada Drive.
Commissioner Karp agreed that the applicant should put the hedge on their property and that the foliage owner can always plant additional hedges on their side of their property. Regarding trees 7 through 10, he recommended giving the Hamburg’s 15 days after the approval of the applicant to make the decision as to whether they want the trees trimmed or removed, as he felt it was unfair to make this type of decision during a public forum.
Commissioner Van Wagner agreed with Commissioner Knight’s comments, agreed with planting the hedge on the applicant’s property, and to defer the decision on trees 7 through 10 and allow staff to do the analysis on the trees after the work on trees 1 through 6 has been done.
Vice Chair Cote stated that she was able to make the necessary findings for this case. She also felt that there was a privacy issue for the foliage owner and supported planting the hedge on the applicant’s property, as the applicant had stated she was willing to do so, however she did not feel the hedge should be any higher than the blue line (five feet) depicted in the staff’s presentation, as it would cause an added expense to the applicant. Regarding trees 7 through 10, she felt language should be added that the trees may be removed with the foliage owner’s consent so that it is clear that there are some options to the foliage owner and applicant.
Chairman Mueller stated that he did not like to require the applicant put a hedge on her property, and found it burdensome that the applicant will have to plant and maintain a hedge when there is no restriction that the foliage owner couldn’t have a hedge or foliage trimmed to five feet on their property. He felt that foliage could be planted on the foliage owner’s property in certain locations that would provide more privacy to the backyard.
Commissioner Karp stated that the applicant has volunteered to place a hedge on her property and that it therefore should not be considered burdensome or an imposition.
Regarding trees 7 through 10, Commissioner Knight asked staff if the applicant does not agree with staff’s assessment that the trees block the view of the bridge, would they then be able to appeal the decision to the Planning Commission.
Project Planner Alvarez answered that there would be no appeal available after the 15 day appeal period expires.
Vice Chair Cote stated that if she were the foliage owner she would like to have the hedge on her property, however in this situation the foliage owner has asked the hedge be placed on the applicant’s property and the applicant has agreed to plant the hedge and maintain it. Therefore, she felt the Planning Commission should respect the wishes of the foliage owner.
Chairman Mueller asked staff to clarify the appeal process for trees 7 through 10.
Director/Secretary Rojas explained that the Planning Commission has deferred decisions to staff in the past so there is precedence for such action. He stated that if the foliage owner feels this wording is too vague they have the option of appealing the decision within 15 days. He explained that he will be very specific with the foliage owners as to exactly what he will be looking for in regards to the trees and the view. He stated that if the applicant is concerned and does not appeal, they will loose the ability to appeal later down the line.
Chairman Mueller asked if it would be reasonable to break this case up and decide on the trimming for trees 1 through 6 with the appropriate resolution and somehow break off trees 7 through 10 so that the foliage owner has the opportunity to come back to staff or the Planning Commission to be able to discuss whether there is a significant view impairment.
Director/Secretary Rojas stated that this could be written into the resolution if that was the desire of the Planning Commission.
Commissioner Knight asked if it was possible, rather than mandate trees 7 through 10 come back to the Planning Commission, to go forward with staff’s recommendation and if there is an issue it can come back to the Planning Commission.
Director/Secretary Rojas stated that there is a section in the Code that gives the ability to bring cases back to the Planning Commission to clarify decisions.
Commissioner Van Wagner agreed that it is important to have an avenue for the foliage owner to come back to the Planning Commission for trees 7 through 10 if there is a dispute or a concern.
Commissioner Knight moved to adopt P.C. Resolution 2004-29 thereby approving VRP No. 145 as presented by staff, for trees 1 through 6 only with the additional condition that the applicant provide a hedge along the rear property line and the hedge be maintained at 5 feet above grade, seconded by Commissioner Karp. Approved, (4-2) with Commissioner Gerstner and Chairman Mueller dissenting.
Chairman Mueller noted that he voted no only because he did not think it was necessary for the applicant to plant the hedge on her property.
Director/Secretary Rojas stated that he has reviewed the code and felt that the cleanest way to deal with trees 7 through 10 would be to re-write the condition that will allow staff to re-evaluate the situation after trees 1 through 6 are addressed and report back to the Planning Commission with it’s findings. He noted that this would then be a noticed hearing before the Planning Commission.
Chairman Mueller moved to have staff evaluate trees 7 through 10 after trees 1 through 6 have been trimmed to determine whether there is significant view impairment and report back to the Planning Commission on their findings at a noticed public hearing, seconded by Vice Chair Cote. Approved, (6-0).
RECESS AND RECONVENE
At 10:40 p.m. the Planning Commission took a short recess until 10:45 p.m. at which time they reconvened.
5. Review of the City Tree Review Permit Process (Case No. ZON2004-00160)
Before beginning the item Vice Chair Cote asked that the Planning Commission be polled as to whether they would be in favor of beginning a new item after 11:00.
Chairman Mueller stated that he would be in favor of trying to discuss all items on the agenda, however he would not want to go past midnight.
Commissioners Van Wagner, Karp, Gerstner, Knight, and Vice Chair Cote were in favor of hearing item no. 5 but starting no new business after that.
Project Coordinator Alvarez presented the staff report, explaining that the City Attorney has reviewed the draft language and staff has prepared the code changes for the Planning Commission’s consideration. He stated that staff is requesting the Planning Commission consider the code amendment language, and should the Planning Commission accept the proposed amendments, recommend approval of the proposed language and forward a recommendation of approval to the City Council.
Chairman Mueller noted that the City Council has determined that fees will be charged for the City Tree Permit, however he felt that the City should bear the cost of some of these permits as they may be responsible for the view impairment. He discussed the notification process and asked staff if they ever notify a HOA as a courtesy for any permit issued in the city.
Director/Secretary Rojas answered that staff does notify HOA regarding certain applications, stating a height variation application as an example. He explained that for other types of projects staff will notify the HOA only when they have provided envelopes and asked to be notified.
Commissioner Van Wagner agreed that the City needs to set an example with the City Tree Permit process if there is a view impairing tree, noting that if there is a view impairing tree it should be the City’s responsibility and the resident should not be charged to submit an application. He agreed with the staff recommendation that the HOA should be notified regarding City Tree Permit reviews. Finally, he stated that he was not in agreement with issue no. 3 in the staff report, and suggested a 6-month trial period where the City can evaluate whether it was cost effective.
Commissioner Knight noted that the Public Works Department has a tree purchase and planting grant and asked if they would be coordinating with staff in terms of impact of planting trees that may have view impacts and the ordinance.
Director/Secretary Rojas answered that there has been a tendency for Public Works to check with staff regarding the type of trees they planted.
Commissioner Knight discussed the issue of insurance and asked staff, if the City hires a tree trimmer to trim a city tree and something happens where a branch falls and damages an abutting property owner’s plants or the tree trimmer falls and injures himself, does the City insurance cover the abutting property owner’s liabilities.
Director/Secretary Rojas explained that when these types of situations happen whoever is harmed may file a claim with the City and the City can defer the claim to the insurance company that covers the tree trimming crew. If the person feels that they did not receive a satisfactory result they can then file a claim with the City, which will be given to the City’s insurance company.
Chairman Knight asked if someone other than an abutting property owner, such as the HOA, could be given the option of adopting a city tree.
Director/Secretary Rojas stated that currently tree adoption is only offered to the abutting property owner.
Commissioner Knight was concerned with that, as he felt that the aesthetics the trees add to the street are an important element to the neighborhood, and felt there should be some sort of option where one of the other persons notified could opt to adopt the tree.
Chairman Mueller stated that the abutting property owner is the one most affected by the tree in the parkway and did not think that the HOA or another party notified should have the right to impose a view obstruction upon the abutting property owner.
Commissioner Knight answered that he did not interpret this to mean a tree is adopted which will continue to obstruct views, as his assumption was that the tree would be maintained at a point which does not impair the view. He was concerned that if a tree is not adopted it will be removed and not replaced.
Director/Secretary Rojas clarified that if a city tree is removed it will be replaced, unless there is an adverse issue with replacement. He stated that if the Planning Commission agrees, language could be added that any of the parties notified could chose to adopt the tree.
Commissioner Knight also felt if was important, if possible, to notify the HOA or other interested parties that an abutting property does not want to maintain a tree and give them the opportunity to adopt the tree.
Director/Secretary Rojas stated that such language was possible to add to the resolution. However, he noted that it could create problems that currently do not exist. Specifically, how is a neighbor going to maintain a tree that is located down the street and in front of a different neighbor.
Commissioner Knight asked if the agreement is made with the property owner appurtenant to the property, so that if the property is sold the new property owner is obliged by the agreement.
Director/Secretary Rojas answered that when an agreement is entered into it is recorded with the property, and noted that this language was left out of the Resolution and will need to be added.
Chairman Mueller asked what rights the property owners currently have regarding city trees that abut their property.
Director/Secretary Rojas noted that this issue is really in the realm of the Public Works Department, however property owners have the responsibility to maintain the parkway and the tree in that parkway. However if a tree in the parkway becomes unsightly or dangerous the Public Works Department has a policy when they will remove and replace trees.
Vice Chair Cote asked if many of these cases are appealed to the Planning Commission (previously the View Restoration Commission).
Director/Secretary Rojas answered that these are permits that have been issued for many years and could only recall three appeals taken to the View Restoration Commission, noting that any current appeal would be taken to the Planning Commission. He stated that these are staff level decisions and since the Planning Commission has taken over the view matters staff has made close to 30 decisions with no appeals filed.
Commissioner Gerstner noted that these changes were predicated on saving the staff time, and asked staff if they felt all of this was going to save staff time.
Director/Secretary Rojas felt there were two things being changed that will save the staff time. He explained that the imposition of a fee will reduce staff’s net cost and that the changes are simplifying the process, as it is much more expensive to trim and maintain a tree rather than remove and replace it.
Chairman Mueller asked if the notification to the HOA and the 10 closest homes will increase the cost over what is currently being done.
Director/Secretary Rojas stated that there may be a slight cost increase in notifying additional residents.
Director/Secretary Rojas summarized the changes discussed by the Planning Commission: 1) on page 2 of 5 not use the term "city personnel" but rather "by the City"; 2) page 3 of 5, subsection c be clarified that the intent is that the person who receives notification of the Director’s decision files a written request to not remove the tree, the tree or foliage may be pruned instead of removed; 3) page 3 of 5, clarify to say the City and any one of the 10 property owners who receive notification of the City’s decision enter into an agreement that is recorded on the title of the property. Also, the property owner shall undertake and pay for such maintenance; 4) subsection 5, to incorporate that only after a 30 day reminder notice would the city take any action.
Commissioner Knight asked if that should also include the HOA.
Chairman Mueller disagreed and did not feel the city should be legislating exactly what tree sits in front of a home and this was more control than he was willing to give to a HOA.
Director/Secretary Rojas added that it would be different to enter into an agreement with a HOA, as with a property owner there is a title an agreement can be recorded to.
Chairman Mueller felt an abutting property owner should have some rights in terms of what is going on in his/her front yard and to legislate that another party can have some control over what goes on in a neighboring parkway was troublesome to him. He felt that if a property owner does not want the tree to remain but would rather have the tree removed and replaced he should have that option, and he did not think it was a good idea to delegate that decision to another party within the neighborhood.
Commissioner Knight felt that there would be the risk where a particular neighborhood has a certain aesthetic to it with the trees and would allow one property owner to dictate what the rest of the residents on that street may or may not have in terms of the tree.
Chairman Mueller reminded the Commission that the intent of these changes was to try to give recommendations to the City Council to save the City money and streamline the process and to start going the other way and make it more complicated, he did not think the Planning Commission was doing its due diligence.
Vice Chair Cote stated that she was torn on this issue and could see both sides of the issue, however she felt that the purpose of this discussion was to try to address the view related issues, and the with that purpose in mind, she was more inclined for this specific issue to support Chairman Mueller’s position.
Vice Chair Cote moved to revise the draft language as follows: 1) on page 2 of 5 subparagraph 1(a) the language be changed to "by the City" rather than by "city personnel"; 2) revise paragraph 1(c) in the preamble to add language to say "if someone files a written request to not remove a tree then the trees can be pruned rather than removed"; 3) revise subparagraph C-IV to clarify that the agreement will be binding on the property owner directly abutting the tree and any future property owners, seconded by Commissioner Gerstner.
Commissioner Knight moved to amend the motion to amend section 5 to include the language regarding a 30-day reminder notice, seconded by Commissioner Gerstner.
Vice Chair Cote accepted the amendment to her motion.
Chairman Mueller asked the Vice Chair if she would consider in her motion a recommendation to the City Council that they consider an application fee reimbursement process.
Vice Chair Cote stated that she wouldn’t mind the recommendation as part of the motion as long as there was a comment that the refund was applicable only if it was determined that the tree caused a significant view impact.
Commissioner Knight moved to amend the motion to add language in Section 4 which says the property owner shall undertake and pay for future maintenance.
Vice Chair Cote accepted the amendment to her motion.
Commissioner Knight still felt that language should be added to give the option to the other 10 property owners notified to adopt the tree in question.
The amended motion passed, (6-0).
6. Review of the City’s View Restoration Guidelines
The item was continued to July 27, 2004.
APPROVAL OF MINUTES
7. Minutes of June 8, 2004
Continued to July 13, 2004.
The meeting was adjourned at 11:50 p.m.