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CC RES 2004-099RESOLUTION NO. 2004-99 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES APPROVING VIEW RESTORATION PERMIT NO. 123 TO TRIM AND /OR REMOVE FOLIAGE AT 28531 PALOS VERDES DRIVE EAST AND 1 BRONCO DRIVE. WHEREAS, on October 5, 2001, Mr. and Mrs. White, the owners of the property located at 28541 Palos Verdes Drive Eats (herein "the applicants "), in the City of Rancho Palos Verdes, filed an application requesting a View Restoration Permit ( "Permit ") to restore a view from their property that is significantly impaired by foliage owned by Mr. John Zaccaro, at 28531 Palos Verdes Drive East and Mr. and Mrs. Jim Menjou at 1 Bornco Drive (herein "the foliage owner's "), in the City of Rancho Palos Verdes ( "City "); and, WHEREAS, notice of the Planning Commission ( "Commission ") hearing was mailed to the applicants and the foliage owner on March 13, 2004; and, WHEREAS, on April 13, 2004, after all voting members of the Planning Commission had visited the sites, the Commission held a duly noticed public hearing to consider the request, at which time, the item was continued to May 25, 2004; and, WHEREAS, on May 25, 2004; after all voting members of the Planning Commission had visited the sites, the Commission held a duly noticed public hearing to consider the request, at which time, all interested parties were given an opportunity to be heard and present evidence. However, due the lateness of the hour, the item was continued to June 22, 2004; and; WHEREAS, on June 22, 2004, the Planning Commission adopted P.C. Resolution No.2004 -28, thereby conditionally approving View Restoration Permit No. 123; and, WHEREAS, on June 29, 2004, within the 15 day appeal period, Mr. John Zaccaro (foliage owner) appealed the June 22, 2004 Planning Commission decision to the City Council; and, WHEREAS, on October 5, 2004, the City Council held a duly noticed public hearing to consider the appeal, at which time, all interested parties were given an opportunity to be heard and present evidence, and continued the public hearing to conduct a site visit at the White and Zaccaro properties on November 13, 2004; and, WHEREAS, at the conclusion of the site visit, the public hearing was continued to the regular City Council meeting of November 16, 2004, so that the City Council could receive additional evidence and testimony and make a determination regarding the appeal; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES DOES HEREBY FIND, DETERMINE, AND RESOLVE AS FOLLOWS: Section 1: The applicants at 28541 Palos Verdes Drive East have a view, as defined by Section 17.02.040 of the City's Development Code, of the city lights. Section 2: The applicants' viewing area, as defined by Section 17.02.040 of the City's Development Code, is taken from the great room (which includes the family room, dining room and den), and the outdoor patio area. The view is the same from each location. Section 3: The applicants have a view that is significantly impaired by several trees on two properties located at 28531 Palos Verdes Drive East and 1 Bronco Drive. Section 4: On November 6, 2001, all parties and City Staff attended a pre - application meeting in an attempt to resolve the conflict. Thus, all parties have participated in the required pre - application process and have completed the early neighbor consultation process. Section 5: Based on evidence provided by the applicants, the subject foliage at 28531 Palos Verdes Drive East and 1 Bronco Drive significantly impairs the applicants' view. All of the subject foliage exceeds the height of the ridgeline of the primary structure or 16 feet and significantly impairs the view from the applicants' viewing area. Section 6: The subject properties are located less than one thousand (1,000) feet from the applicants' property as the foliage owner's properties are directly adjacent to the applicants' property. Section 7: The applicants' and the foliage owner's properties were created prior to the adoption of the State Subdivision May Act and were created via a Record of Survey per book 62, pages 36 and 37. Additionally, the applicants' home (28541 Palos Verdes Drive East), and Foliage owner John Zaccaro's home (located at 28531 Palos Verdes Drive East) were built in the same year, 1953; while the Menjou home at 1 Bronco Drive, was built approximately eleven years later in 1964. The foliage found on the Zaccaro and Menjou properties is not native to the Palos Verdes Peninsula ( "Peninsula "). In addition, standard building practices on the Peninsula typically dictate that lots in multi -lot development projects are created by mass grading techniques, which include the removal of all existing vegetation, to create the building pads. Finally, Mr. Zaccaro testified that before the Planning Commission that it was his understanding that all of the foliage on his property had been planted after the lot was created by former owners of his property. Accordingly, the City Council concurs with the Planning Commission's finding that the foliage in question did not exist as view impairing foliage when the lots were created. Section 8: Trimming or removing the foliage as recommended by Staff, will not cause an unreasonable infringement on the privacy of the foliage owners' properties in that the view impairing trees do not currently provide privacy to either foliage owner. The Resolution No. 2004 -99 Page 2 of 4 Zaccaro foliage is primarily located in a corner front yard area that is not currently used as an outdoor gathering area, and it does not appear that it ever was used for outdoor entertaining. Additionally, the majority of the Menjou foliage is planted parallel to the driveway and garage area of the home. In addition, the small patio outside of Mr. Zaccaro's bathroom also is not an outdoor gathering area. Thus, these areas are not considered gathering areas for which foliage is needed to provide privacy under the City's View Restoration Ordinance. With respect to indoor privacy, the City's Guidelines specify that curtains and other window coverings can provide indoor privacy. Accordingly, foliage is not needed to provide privacy to the interior of Mr. Zaccaro's home. Section 9: Trimming and /or removing the subject foliage as identified in the attached Conditions of Approval (Exhibit "A "), is necessary in order to restore the applicants' view of the City lights. Section 10: The issue raised by the appellant about a purported agreement between the applicants and the foliage owners, which was related to the addition to appellants' home, was not considered by the City Council in rendering its decision in this case. The City Council is not determining whether any agreement exists between the parties or its content, since the City is not a party to any such agreement. All of those issues are matters that should be determined by a court of law, since the City Council's jurisdiction is limited to interpreting and enforcing the City's View Restoration Ordinance in connection with applications that are filed with the City pursuant to the provisions of the Ordinance. Section 11: The cost of maintaining the foliage so that it does not grow to a height that significantly impairs the applicants' view, which was raised by the appellant as part of the appeal, was caused in large part by the appellant's refusal to have any of the foliage removed, the cost of which would be borne solely by the applicants, and by appellant allowing the foliage to grow into the view after Proposition M, the View Ordinance, was adopted by the voters. In addition, the appellant is able to trim the foliage so that the height is reduced to a point that it would not have to be trimmed as often, which will reduce the cost of maintaining the foliage. Section 12: The appellant has alleged that he was denied due process during the hearing before the Planning Commission. The City Council has reviewed the minutes of the Planning Commission's meeting and does not find any evidence that Mr. Zaccaro was denied due process during the hearings before the Planning Commission. To the contrary, the minutes demonstrate that Mr. Zaccaro was afforded an ample opportunity to present his case to the Planning Commission. In addition, Mr. Zaccaro also was permitted to present his case to the City Council on appeal. Accordingly, there is no evidence that the appellant was denied due process during the City's determination of this view restoration application. Section 13: Pursuant to Section 15300 of the California Environmental Quality Act, the proposed project is categorically exempt under Class 4 of that section because the work required to restore the applicants' view does not include the removal of scenic and Resolution No. 2004 -99 Page 3 of 4 mature trees as identified by the City of Rancho Palos Verdes General Plan (Visual Aspects; Figure 41). Section 14: Based on the foregoing information, and on the information and findings included in the Staff report and the evidence presented at the public hearing, the Planning Commission hereby orders the trimming and /or removal of foliage at 28531 Palos Verdes Drive East and 1 Bronco Drive in order to restore the view at 28541 Palos Verdes Drive East, as provided in, and subject to, the conditions set forth in the attached Exhibit "A ". Section 15: The time within which the judicial review of the decision reflected in this Resolution, if available, must be sought is governed by Section 1094.6 of the California Code of Civil Procedure and other applicable short periods of limitations. Section 13. For the foregoing reasons and based on information and findings contained in the Staff Reports, minutes, and records of the proceedings, the City Council hereby approves View Restoration Permit No. 123, subject to the Conditions of Approval contained in the attached Exhibit "A ", which are necessary to protect the public health, safety and welfare. PASSED, APPROVED, AND ADOPTED on the,1-6th day oov,jKmber 2004. Mayor Attest: City Clerk State of California ) County of Los Angeles )ss City of Rancho Palos Verdes ) I, Jo Purcell, City Clerk for the City of Rancho Palos Verdes, hereby certify that the above Resolution No. 2004 -99 was duly and regularly passed and adopted by the said City Council at a regular meeting held on NovmII 4 a 0nnA Resolution No. 2004 -99 Page 4 of 4 RESOLUTION NO. 2004 -99 EXHIBIT "A" CONDITIONS OF APPROVAL VIEW RESTORATION PERMIT NO. 123 1. Zaccaro Property (28531 Palos Verdes Drive East) Phntn Nn 1 _ Pittosporum 1 and 2 (appx. Ht. 30 -40 feet). Raise the crown to a height that is 6 to 10 feet above the Zaccaro residence. Said trimming shall occur every six months. Pittosporum 3 and 4, Oleander, and Calycanthus. Trim down to the level of Zaccaro ridgeline which is 3 feet above the White building pad and trim semi- annually beginning six months after the initial trimming or until such time as the foliage grows to a point that is 4 feet above the White building pad. Photo No 2. Brazilian Pepper. No action at this time. Maple and Cedar. No action at this time. Pittosporum. No action at this time. Aerial Photo Foliage on Zaccaro Property Giant Palm. Remove lower fronds to restore the view through the tree. Ficus. Trim down and shape to the level of the ridgeline. Said trimming shall occur on a semi - annual basis beginning 6 months after the initial trimming. Chinese Elm. Trim down to the ridgeline of the Zaccaro residence. Said trimming shall occur every 6 months. Schefflera. Trim down to the level of the ridgeline. Said trimming shall occur on an annual basis. Ash. Raise the crown to a level that is 6 to 10 feet above the ridgeline and lace heavily. Said trimming shall occur on asemi- annual basis beginning 6 months after the initial trimming and during the cool months (November through March). Various View Impairing foliage. Shall be trimmed to the level of the ridgeline. Said trimming shall occur semi - annually beginning 6 months after the initial trimming. Resolution No. 2004 -99 Exhibit A Page 1 of 5 2. Menjou Property 1 Bronco Drive Photo No_ 3 Aleppo Pine. No action at this time. Pittosporun. No action at this time. Eucalyptus tree. No action at this time. Brazilian Pepper. No action at this time. Aerial Photo Foliage on Meniou Property Canary Island Pine. Shall be laced heavily. Said trimming shall occur annually during the cool months (November though March). Various View Impairing foliage. Shall be trimmed to the level of the rear /side yard fence, which is approximately 6 to 10 feet as measured from grade. Said trimming shall occur semi - annually beginning 6 months after the initial trimming. 3. Due to the complexity of this case, which evolves substantial foliage, Staff along with the City Arborist will monitor the initial trimming to assure that all trimming is done in accordance with these conditions of approval. 4. Upon completion of said trimming, if additional foliage on the subject property is found to be impairing the view, than the offending foliage shall be trimmed to a height as not to impair the view from the applicants' properties. 5. Since the tree levels described in Conditions 1 and 2 are approximates, adjustments to the trimming levels may be made by Staff during the initial trimming to ensure that the applicants' view is restored. Once the trimming is complete, the restored view shall be documented and subsequent growth will be allowed to grow up to one year after the initial trimming, or as specified in these conditions of approval. 6. The foliage owner shall be responsible to maintain the foliage in such a manner as to not significantly impair the applicants' view by trimming the foliage specified in this permit on an annual basis, or as specified above, if different, beginning after the initial trimming of the foliage is completed and verified by Staff. 7. If any tree or shrub that is ordered to be culled, laced, or trimmed dies within one year of the initial work being performed due to the performance of the work, the applicants or any subsequent owner of the applicants' properties shall be Resolution No. 2004 -99 Exhibit A Page 2 of 5 responsible for providing a replacement tree or shrub to the foliage owner. This time period may be extended by the Commission if evidence is provided by a certified arborist that a longer monitoring period is necessary for a specific type of tree or shrub. However, if the city arborist determines that culling, lacing, or trimming said tree or shrub will in all probability cause the tree or shrub to die, and the foliage owner chooses not to accept removal and replacement as an option, either in writing or in public testimony during the public hearing, then the applicants will not be responsible for providing a replacement tree or shrub to the foliage owner. The replacement foliage shall be provided in accordance with the specifications described in section VI -E (Commission Action) of these Guidelines. If the work is performed by the foliage owner, said foliage owner shall forfeit the right to replacement foliage if the trimmed tree dies. If a tree or shrub dies it is subject to removal pursuant to Section 8.24.060 (property maintenance) of the RPV Municipal Code. 8. The selection of the type of replacement foliage shall be made by the foliage owner from an approved list of foliage types provided by the Director of Planning Building and Code Enforcement or approved by the City View Restoration arborist. 9. At least one year after the initial trimming is completed, pursuant to Section VI -J of the Guidelines (Commission Action), City Staff shall report to the Commission as to the adequacy of the maintenance schedule, as well as the foliage owners' ability to maintain the foliage in compliance with these conditions of approval. The Commission shall consider the Staff report and determine if a public hearing to amend the conditions is necessary. If the Commission determines that a hearing is necessary, then a hearing will be held pursuant to Section VI -J of the View Restoration Guidelines and Procedures. 10. The applicants shall, not later than 30 days after approval of this permit, present to the City, at least one itemized estimate to carry out the aforementioned work. Such estimate is to be supplied by a licensed landscape or licensed tree service contractor, acceptable to the City, which provides insurance certificates in a form acceptable to the City, and shall include all costs of cleanup and removal of debris and the cost if have an ISA certified tree trimmer or accredited arborist on site to perform or supervise the work being done. The bid obtained by the applicant will be from a bidder who has visited Mr. Zaccaro's property when Mr. Zaccaro is present, provided that Mr. Zaccaro gives written notice to the City, within five business days after approval of this permit by the City Council, which notice shall contain at least three time periods on three separate days, of no less than three hours each, on which Mr. Zaccaro agrees to make his property available for inspection by the bidder. In addition, the applicants shall pay to the City an amount equal to the City accepted estimate and such funds shall be Resolution No. 2004 -99 Exhibit A Page 3of5 maintained in a City trust account until completion of work as verified by City Staff. 11. The foliage owner shall select a contractor from the estimate(s) provided by the applicants or another licensed firm of their choice subject to approval by the City, to perform the required work. However, the foliage owners shall only be reimbursed for the amount of the lowest bid submitted by the applicants. If the foliage owners choose to do the required work themselves, then the foliage owners shall not be compensated from the trust account and the amount in the trust account shall be refunded to the applicants. 12. The applicants may reduce the scope of the trimming required by this Permit by giving the City and the foliage owner written notice of such decision within 30 days of this approval. The applicants shall deposit funds to the City in a trust account in an amount sufficient to cover the remaining work. However, trimming or removal of the vegetation that the applicants have chosen to eliminate would then require an entirely new View Restoration application and fee. 13. The applicants may withdraw the view restoration request and the trust account funds if the applicants do so within five (5) days after the applicants send the estimate required herein. In the event that the applicants withdraw the request in a timely manner, the foliage owners are not required to perform the work specified by this Permit, and this Permit is of no further force and effect. 14. The foliage owner shall, no later than 90 days after the Notice of Approval (First Notice) is mailed, complete the work to the extent required by this Permit and shall maintain the vegetation to a height that will not impair a view from another property in the future as specified in these Conditions of Approval. If any foliage owner herein does not complete the required work as specified within 90 days of the issuance of the Notice of Approval, then the City of Rancho Palos Verdes will authorize a bonded tree service to perform the work at the subject property and at the foliage owner's expense. In the event that the City is required to perform the work at the foliage owner's expense, the City shall reimburse the applicant from the City trust account not later than 30 days after the expiration of the time period stipulated above. 15. Upon completion of the work, the foliage owner shall notify the City and shall submit a copy of a paid invoice showing that the work was performed. Upon submittal of the invoice and verification by City Staff of compliance, the City shall transmit the funds from the City trust account to the foliage owner not later than 30 days after receipt of the appropriate billing as verified by City Staff. If the paid invoice submitted by the foliage owner is for an amount less than the funds in the City's trust account, the foliage owner shall only be transmitted an amount equal to the actual cost of the trimming. In such situations, the balance of the trust Resolution No. 2004 -99 Exhibit A Page 4 of 5 account shall be refunded back to the applicants (within 30 days of receipt of the appropriate billing) or applied to the applicants' permit processing account, if that account contains a negative balance. If the paid invoice submitted by the foliage owner is for an amount that exceeds the funds in the City's trust account, the foliage owner shall only receive the funds from the City trust account and the foliage owner shall be responsible for paying the difference 16. If the required work as specified herein is not completed within the stipulated time periods, then the City of Rancho Palos Verdes will utilize the City's code enforcement process to authorize a bonded tree service to perform the work at the subject property at the foliage owner's expense, and the applicants' deposit will be refunded. In the event that the City is required to perform the work, the foliage owner will be billed for all City expenses incurred in enforcing the View Restoration order and a lien or assessment may be recorded against the foliage owner's property if the invoice is not paid. 17. Subsequent to the trimming or removal of the foliage, the applicants may, at their discretion, document the restored view for future reference by submitting to the Director of Planning, Building and Code Enforcement, photographs of the restored view taken from the applicant's viewing area along with a "Documentation of Existing Foliage or View" form available at the Planning, Building & Code Enforcement Department. Resolution No. 2004 -99 Exhibit A Page 5of5